SHEET GA972of 2016 CS5of 2010 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE TECHNOSHOP PRIVATE LIMITED Versus SALIM MIRZA BEFORE: The Hon'ble JUSTICE SHIVAKANT PRASAD Date : 15th November, 2016.
Appearance: Mr.Abhrajit Mitra, Sr.Adv.Mr.Deb Kumar Sen, Adv.Ms.Taniya Mitra, Adv.…for the plaintiff.
Mr.Arik Banerjee, Adv.…for the defendant.
The Court : The petitioner-defendant has filed this application with a prayer for return of plaint to the appropriate Court in which the suit should have been instituted as per the provision of Order 7 Rule 10 of the Code of Civil Procedure in view of the fact that this Hon’ble Court has no jurisdiction to try and entertain the suit.
The plaintiff has filed the suit for eviction and recovery of khas possession of the suit premises as described in the Schedule to the plaint with mesne profit.
The defendant filed written statement and is contesting the suit and has also filed this application on contention that the valuation of the instant suit has been inflated with an ulterior motive to get the suit out from the pecuniary jurisdiction of the learned City Civil Court at Calcutta and that the defendant is not liable to pay any damage.
The prayer for decree for eviction and khas possession of the trespasser is also not maintainable against the defendant as he claims to be a tenant in respect of the suit premises.
It is contended that the defendant is the brother of Sikendar Mirza and a member of the said family and that rent had been paid in respect of the suit premises out of joint account in the name of the said Sikendar Mirza and Salim Mirza being the defendant.
Rent used to be accepted from time to time by the plaintiff upon issuance of rent receipt where the bank account has been maintained.
It is further submitted that rent receipts were issued casually from the office of the plaintiff.
Sometimes the rent receipts were issued in the name of the defendant and after that the plaintiff has suppressed the fact of issuance of rent receipt in the name of the defendant in order to avoid the relationship of landlord and tenant under the West Bengal Premises Tenancy Act.
submitted that a defendant against September 30, sum the 2005.
of Rs.38,690/- receipt It is granted further was by It is further received the submitted from plaintiff that the dated since the plaintiff refused to accept the rent from the defendant since March 2010, the defendant has started to deposit rent with the office of the Rent Controller.
Accordingly, the petitioner-defendant has prayed that the plaint be returned as the suit has been valued extraneously.
This denying all application material has been particulars contested made in by the the plaintiff application and contended, inter alia, that Sikander Mirza had abandoned and/or relinquished his tenancy right which he had in the suit premises and the defendant trespasser.
had entered into the suit premises as a As such, the plaintiff has filed the suit against the defendant and has further denied of having issued rent receipts in the name of the defendant and that validly issued any rent receipt has been suppressed to avoid establishment of landlord and tenants relationship as alleged by the petitioner-defendant.
It is further urged that the defendant has illegally obtained few rent receipts in his own name behind the back of the management which can be established in the trial.
plaintiff’s It has also been denied that a sum of Rs.38,690/- has been received by the plaintiff from the defendant as alleged.
The receipt being Annexure-A5 was issued bona fide by the plaintiff to Sikander Mirza, who had issued the cheque for Rs.38,690/- against which the receipt was issued.
Sikander Mirza had always been known and represented himself as Mr.S.Mirza and the plaintiff’s management had no knowledge that Sikander Mirza had left the suit premises and in his place and stead, the defendant has claimed himself as the original tenant.
of this application.
Thus, the plaintiff prayed for rejection The learned Advocate appearing for the defendant has relied upon a decision of the Hon’ble Division Bench of this Court in the case of ‘Nellimarla Jute Mills Company LTD.versus Rampuria Industries & Investments LTD.reported at 2000(2)CLJ70wherein it has been held as follows: “Under the Court Fees Act law as also under the West Bengal Court Fees Act suit has to be valued in terms of the provision thereof.
A suit for recovery of immovable property from a tenant including tenancy a tenant suit holding for over eviction after of the tenant determination would still be of a the suit between the Landlord and Tenant, not a suit between the owner and a rank trespasser.
9) It is true that for the purpose of valuation of a suit for determination of the Court fees payable thereon, the averments made and the reliefs character of the suit.
sought for in the plaint determines the Clause (v) (a) of Section 7 of the West Bengal Court Fees Act cannot, thus, be said to be applicable in this case as the same is applicable where a suit is filed against the defendant who was a trespasser from the very beginning.
word “trespasser” different context has a variable meaning and in different statutes.
it is used The in So far as the West Bengal Court Fees Act is concerned the word “trespasser” must mean a trespasser from the beginning and not a trespasser who had original title but lost the title because of efflux of time by reason of an agreement between the parties or by operation of law.
18) For the purpose of Court Fees Act, the plaintiff who claims himself to be a former Landlord has to value the suit under Clause (xiii).The theory of a “dual capacity” in the context of the provisions of the Act cannot have any application.
25) For the reasons aforementioned, we are of the opinion that the learned trial Judge was not correct in holding that the suit is not overvalued and this Court has pecuniary jurisdiction to maintain the same.
(Para 28)” In the above cited decision, the plaintiff had filed a suit for eviction of the defendant who was the tenant in the suit premises at a fixed rate of Rs.5000/- per month.
But, the plaintiff had valued the suit more than Rs.10 lakhs to create the pecuniary jurisdiction of this Hon’ble Court.
this Hon’ble plaintiff, Court inter had alia, accepted holding the that The single Bench of valuation the suit is given by the maintainable.
But, the defendant preferred an appeal against the said order and the order of the Trial Court was set aside and the plaint was directed to be returned to the plaintiff for presentation before the Court having competent jurisdiction over the matter.
This Court finds that the instant suit is distinguishable from the basic facts of the cited decision because the plaintiff has all through branded the defendant as a trespasser in the suit premises.
The learned Advocate for the petitioner-defendant has relied upon another decision of the Hon’ble Division Bench of this Court in ‘Amal Kumar Ghatak versus M/S.S.K.Enterprises PVT.Ltd.’ reported at AIR1995Calcutta 91.
This is also not apposite to the facts and circumstances of the instant case.
This Court has observed triable issues between the parties which can be decided at the trial in accordance with the evidence to be adduced by the parties to the suit.
claims to be a production of certain The petitioner-defendant on the tenant in rent respect of receipts the suit allegedly one hand premises issued by on the plaintiff Technoshop PVT.LTD.whereas the plaintiff has disputed that as having been issued in the name of Sikander Mirza.
The serious doubt has been created as emerged from the letter dated 22nd October, 2009 issued by the defendant to the plaintiff concern which is reproduced for profitable appraisal as under:TRUE COPY Technoshop Private Limited, 12/1A, Lindsay Street, Kolkata – 87 22.10.09 Dear Sir, This is to certify, that my name is SALIM MIRZA and I am an occupant of Flat No.15, 2nd Floor, 12/1A, Lindsay Street.
My rent receipt and my electricity bill are in my brother’s name.
I am in urgent need of address proof.
Please address my rent receipt only for the month of October in my name or issue a letter to establish my address proof.
Yours faithfully, SALIM MIRZA Sd/In the above context and bearing in judicial mind misgiving arising therefrom, this Court is pleased not to return the plaint for its institution to any appropriate and competent Court of law.
The suit has been valued by the plaintiff as per the provision of Section 7(vi) (a) of the West Bengal Court Fees Act, 1970 which reads thus: “(vi).In a suit for recovery of possession of immovable property from – (a) a trespasser, where no declaration of title to property is either prayed for or necessary for disposal of the suitaccording to the amount at which the relief sought is valued in the plaint subject to the provisions of Section 11” Ergo, this application being GA No.972 of 2016 is rejected, however, without any order as to costs.
List this suit being CS No.5 of 2010 on 6th December, 2016 for cross inspection of documents etc.(SHIVAKANT PRASAD, J.) Cs.