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East Anglia Plastics (India) Ltd. Vs. State of West Bengal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberAppeal No. Nil of 1985 and Suit No. 434 of 1983
Judge
Reported inAIR1986Cal422
ActsWest Bengal Town and Country (Planning and Development) Act, 1979 - Section 11; ;Limitation Act, 1963 - Section 5 - Schedule - Article 117; ;Transfer of Property Act, 1882 - Sections 111 and 114A; ;Code of Civil Procedure (CPC) - Section 80(1); ;Contract Act - Section 39
AppellantEast Anglia Plastics (India) Ltd.
RespondentState of West Bengal and anr.
Appellant AdvocateRajat Ghosh, Adv.
Respondent AdvocateP.K. Chatterjee, Adv. (for No. 1) and ;Bimal Chatterjee, Adv. (for No. 2)
DispositionPetition dismissed
Cases ReferredMoolji Jaitha & Co. v. Khandesh Spinning and Weaving Mills Co. Ltd. (supra
Excerpt:
- r.n. pyne, j. 1. the appellant east anglia plastics (india) limited (hereinafter referred to as 'the petitioner') has made this application praying, inter alia, for condonation of the delay in preferring an appeal from the judgment and order of ajit kumar sengupta, j. dt. 13th june 1985; for leave to file the memorandum of appeal without the certified copy of the said order upon usual undertakings and for stay of operation of the said order till final disposal of the appeal. the facts leading to the making of this application may briefly be stated. 2. by an indenture of lease dt. 12th jan. 1965 the respondent 1, state of west bengal, granted a lease in respect of 5.91 acres of land in durgapur (hereinafter referred to as 'the demised premises') to the petitioner for a term of 60 years.....
Judgment:

R.N. Pyne, J.

1. The appellant East Anglia Plastics (India) Limited (hereinafter referred to as 'the petitioner') has made this application praying, inter alia, for condonation of the delay in preferring an appeal from the judgment and order of Ajit Kumar Sengupta, J. dt. 13th June 1985; for leave to file the memorandum of appeal without the certified copy of the said order upon usual undertakings and for stay of operation of the said order till final disposal of the appeal. The facts leading to the making of this application may briefly be stated.

2. By an Indenture of lease dt. 12th Jan. 1965 the respondent 1, State of West Bengal, granted a lease in respect of 5.91 acres of land in Durgapur (hereinafter referred to as 'the demised premises') to the petitioner for a term of 60 years from 25th May 1964 to 25th May 2024 upon payment of a salami of Rs. 36,300/- and the rent of Rs. 60/- per year and upon the term and condition that the petitioner within five years from the date of lease would erect a factory thereon, failing which the lease would be determined. Clause 20 of the said lease provides as follows :

'Clause 20 : Should Lessee fail and neglect to erect the factory within 5 years from the date of these presents then the Lessor shall have the right and be entitled to determine these presents and thereafter re-enter into the demised premises or in a portion thereof in the name of the whole'.

3. Under the terms of the said lease the petitioner should have constructed a plastic factory on the demised premises by 12th 1970, but, as is alleged by the petitioner, due to no fault of its own, it was unable to do so. It is alleged by the petitioner that the respondent 1, however, condoned and/or waived such failure on the part of the petitioner, inter alia, by accepting rent from the petitioner after such breach and had been continuing to do so until just before the institution of the above suit filed by the petitioner against the respondent 1 State of West Bengal.

4. The petitioner has alleged that the respondent 2 Asansol Durgapur Development Authority is a Development Authority under West Bengal Town and Country (Planning and Development) Act, 1979 (hereinafter referred to as 'the said Act') and was created by the said Act. It is further alleged that by a notification dt. 17th Mar. 1980 and issued under Section 11 of the said Act the respondent 1 constituted the respondent 2 as the Development Authority for a certain area including Durgapur where the demised premises is situated.

5. The respondent 1 sent a notice dt. 7th June 1983 to the petitioner to the effect that as the respondent 1 had decided to resume possession of the demised premises upon the petitioner's failure to build a plastic factory as per terms and conditions of the said lease and to take possession of the demised premises on 14th July 1983.

6. Thereafter, on or about 11th July 1983 the petitioner filed in this Hon'ble Court the above suit being Suit No. 434 of 1983 (East Anglia Plastics (India) Limited v. State of West Bengal) (hereinafter referred to as 'the suit') claiming, inter alia, for a declaration that the said notice dt. 7th June 1983 was illegal and null and void and for an injunction restraining the respondent 1 from giving effect to the said notice and from disturbing the possession of the petitioner or dispossessing it from the demised premises.

7. On 13th July 1983 upon an application made by the petitioner Mrs. Monjula Bose, J. after hearing the parties, i.e., the petitioner and the respondent 1, who were then the only parties to the suit, gave directions for filing of affidavits by the parties in the said application and in the meantime the petitioner was not to be dispossessed but the order would not prevent the respondent 1 to institute proceedings in accordance with the law against the petitioner.

8. Thereafter, on the application of the respondent 2 by an order dt. 14th Aug. 1984passed ex parte by T. K. Basu, J. the respondent 2 was added as a party defendant in the above suit. Thereafter, on 20th Aug. 1984 the petitioner mentioned the matter before T. K. Basu, J. for recalling the said order dt 14th Aug. 1984 but the learned Judge declined to do so.

9. On the 3rd Sept. 1984 the respondent 2 made an application, inter alia, that the plaint filed in Suit No. 434 of 1983 be taken off the file and be rejected; the suit should be dismissed and perpetual injunction restraining the plaintiff, its servants, agents and assigns from taking any step or further steps in the suit in any manner whatsoever on the ground that this Hon'ble Court had no jurisdiction to entertain the said suit inasmuch as the demised premises was situated in Durgapur outside the Original Side jurisdiction of this Hon'ble Court.

10. On the 20th Nov. 1984 the petitioner filed an appeal from the said order dt. 14th Aug. 1984 and, inter alia, prayed for stay of the said order. This application was disposed of by our order dt. 12th Dec. 1984 after final hearing of the said application. The said order is as follows :

'This Court doth not think fit to make any further Order on this application save and except as hereinafter appearing and upon the Respondent 2 abovenamed by their Advocate waiving the service of the notice of appeal upon it and the settlement of index of paper book to be filed in this appeal be and the same are hereby dispensed with and it is further ordered that the petitioner abovenamed do within the 31st Jan. 1985 file its Paper Book. And it is further ordered that all contentions of the parties including the maintainability of the appeal are kept open and it is further ordered that the learned Judge before whom the application made by Assansol Durgapur Development Authority is pending shall be at liberty to hear the application if he desires and it is further ordered that all parties concerned do act on a signed copy of the Minutes of this order.'

11. It is alleged by the petitioner that from about late Jan. 1985 the said application of the respondent 2 for taking the plaint off the file was appearing in the daily list of the learned Interlocutory Judge. Although thesaid application was appearing in the daily list as aforesaid it was not heard by the learned Interlocutory Judge. The petitioner has alleged that on Monday, the 20th June 1985 the said application appeared in the list of the learned Interlocutory Judge C. K. Banerjee, J. as adjourned motion No. 34 and there was little chance of the said application being heard on that day. According to the petitioner, it recently discovered that by an administrative order a number of applications including the petitioner's said application were transferred from the list of C. K. Banerjee, J. to the list of Ajit Kumar Sengupta, J. On that day, it is alleged by the petitioner, unknown to it, the said application was heard ex parte by Ajit Kumar Sengupta, J. and upon conclusion of the hearing it was directed to appear in the list for order. By his judgment and order dt. 13th June 1985 Ajit Kumar Sengupta, J. made an order for taking the petitioner's plaint off the file and directed the same to be returned to the petitioner's Advocate-on-record for presentation to the proper court. His Lordship, inter alia, held as follows :

'This Court, therefore, has no jurisdiction to entertain this suit. For aforesaid reasons this application succeeds. Let the plaint filed in Suit No. 434 of 1983 be taken off the file and be returned to the Advocate-on-record of the plaintiff for presentation before the proper Court'.

12. According to the petitioner although the said order directed the plaint to be returned to its Advocate-on-record neither the same was done nor the court informed or intimated the petitioner or its Advocate-on-record about the said order.

13. It is stated by the petitioner that between 26th Mar. and 30th June 1985 its Advocate-on-record, Mr. S. K. Basu of No. 6, Old Post Office Street, Calcutta, was seriously ill and could not attend the court or his office and as a result thereof his business remained unattended to. The appellant's counsel, Mr. Rajat Kumar Ghosh had no knowledge of the transfer of the said application from the list of C. K. Banerji, to the list of Ajit Kumar Sengupta, J. by the said administrative order and in consequence thereof he could not attend that court of Ajit Kumar Sengupta, J. when the matter was called on for hearing.

14. It is stated by the petitioner that it did not know about the said order dt. 13th June 1985 until 16th June 1985. Sometime in early part of July 1985 the petitioner's Advocate-on-record, Mr. S. K. Basu, after his long illness, resumed work and started to attend his pending and/or outstanding business.

15. According to the petitioner, at the time for filing of the paper book in the appeal preferred against the order dated 14th Aug. 1984 expired the petitioner's said advocate gave notice to the respondent 2 that he would mention the matter for short extension of time for filing the paper book. On 16th July1985 as the matter was about to be mentioned, Advocate-on-record of the respondent 2 Mr. Susanta Kumar Bose informed the Advocate-on-record of the petitioner Mr. S. K. Basu about the said ex parte order of Ajit Kumar Sengupta, J. Dt. 13th June 1985 and, therefore, the petitioner's appeal from the said order dated 14th Aug. 1984 became infructuous. Hence the petitioner's Advocate-on-record did not mention the matter but engaged himself immediately to find out the facts which led up to the making of the said ex parte order dt. 13th June 1985.

16. It is alleged by the petitioner that he was advised to prefer an appeal against the said order dt. 13th June 1985.

17. According to the petitioner, as the time prescribed for preferring an appeal from the said order dt. 13th June 1985 had already expired before it came to know of the said order it was advised that an application should be made for condonation of delay for filing such appeal.

18. On or about 24th July 1985 the petitioner's Advocate-on-record upon receiving due instruction from the petitioner duly put in requisitions for a certified copy of the said order and the judgment dt. 13th June 1985 inasmuch as requisition for drawing up and completion of the said order had already been given by the Advocate-on-record for the respondent 2. On 1st Aug. 1985 the petitioner obtained the certified copy of the said order dt. 13th June 1985.

19. In the above circumstances the petitioner has made the instant application for reliefs already mentioned hereinbefore.

20. An affidavit affirmed by one Dinabandhu Sarkar, Assistant Executive Officer of the respondent 2, Asansol Durgapur Development Authority (hereinafter referred to as 'the deponent') affirmed on 26th Aug-1985 has been filed in opposition to the petitioner's application. The deponent in his affidavit has stated that the application of the respondent 2 appeared in the list of T. K. Basu, J. continuously for several days but on no occasion the petitioner or its lawyer appeared to contest the said application. It is further stated that no appeal lies against the order dt. 14th Aug. 1984. It has been denied that the application of the respondent No. 2 was never called on for hearing before C. K. Banerjee, J. The application was called on for hearing on a number of occasions but the petitioner deliberately made itself scarce. Nobody on behalf of the petitioner appeared either in court on 10th June 1985 when the said application was heard or on 13th June 1985 when the said order was made. It is further stated that the order of the appeal court dt. 12th Dec. 1984 came up for settlement before the Assistant Registrar on 11th July 1985 in pursuance of the notice of the Department dt. 2nd July 1985. On 10th July 1985 Sri Someshwar Chakraborty, a junior and/or assistant of Mr. S. K. Basu, Advocate-on-record of the petitioner came to the chamber of the Advocate-on-record of the respondent 2 to enquire about the settlement of the said order dt. 12th Dec. 1984 and also about the position of the pending application of the respondent 2 when he was personally told by the Advocate-on-Record of the respondent 2 about the passing of the said order dt. 13th June 1985. It is also stated that on 26th July 1985 the Advocate-on-record of the respondent 2 received a letter dt. 24th July 1985 from the Advocate-on-record of the petitioner that the appeal filed by the petitioner against the order dt. 14th Aug. 1984 would be mentioned on 29th July 1985 for extension of time to file the paper book. The Advocate-on-record of the respondent 2 neither replied to the said letter nor attended the court on 29th July 1985 nor had any talk with the Advocate of the petitioner or his junior. The deponent has also stated that it has been incorrectly alleged that on 16th July 1985 Mr. Sushanta Kumar Bose, Advocate-on-record of the respondent 2 informed thepetitioner's Advocate-on-record, Mr. S. K. Rasu about the order dt. 13th June 1985. Therefore, it is not correct that any unforeseen or unfortunate events did or could arise as alleged by the petitioner. According to the deponent the petitioner at all material times was fully aware of the said order dt. 13th June 1985 and in any event much prior to the expiry of the period of limitation for preferring an appeal against the same. The deponent also has denied and disputed that any ground has been made out by the petitioner for condonation of the delay for filing of the appeal against the said order dt. 13th June 1985.

21. Although Mr. P. K. Chatterjee, Advocate appeared for the respondent 1, State of West Bengal at the hearing of this application yet no affidavit has been filed by and/or on behalf of the respondent 1.

22. Mr. Rajat Ghose, Advocate appearing on behalf of the petitioner has reiterated the grounds made in the petition for condonation of the delay in filing the appeal against the said order dt. 13th June 1985. According to him, the grounds stated in the petition sufficiently explain the cause of delay for making this application for condonation of the delay.

23. Mr. Bimal Chatterjee, Advocate appearing on behalf of the respondent 2 has submitted that no sufficient ground has been made out for condonation of delay under Section 5 of the Limitation Act for filing an appeal against the said order dt. 13th June 1985. According to him, the order was passed on 13th June 1985. According to the petitioner, it or its Advocates did not know about the said order until 6th July 1985. Even if it is taken that the petitioner's Advocate-on-record, Mr. Section K. Basu was seriously ill and did not attend the court or his office between 26th Mar. and 30th June 1985 yet no explanation has been given as to why the petitioner and/or its Advocate-on-Record could know about the order dt. 13th June 1985 only on 16th July 1985. According to Mr. Chatterjee, the time for preferring an appeal against the order dt. 13th June 1985 had already expired before the petitioner came to know of it on 16th July 1985. According to the petitioner, on 24th July 1985 its Advocate-on-Record put in requisitionfor a certified copy of the order dt. 13th June 1985. The delay between the period of 16th July and 24th July 1985 has not at all been explained. It is further submitted that although the petition of the instant application was affirmed by the petitioner on 8th Aug. 1985 yet notice of motion of the present application was taken on the 13th Aug. 1985. This delay for the period between 8th Aug. and 13th Aug. 1985 has also not been explained. According to him there is no explanation of the delay from 14th June 1985 to 13th July 1985 as also from 14th July 1985 to 13th Aug. 1985. Hence, according to him, the appeal is barred by limitation and no sufficient cause has been shown by the petitioner for preferring the appeal against the said order dt. 13th June 1985 within the period prescribed therefor in the Limitation Act, 1963.

24. Mr. P. K. Chatterjee, Advocate, appearing for the respondent 1 has adopted the argument of Mr. Bimal Chatterjee.

25. Under Article 117 of the Limitation Act, 1963 (hereinafter referred to as 'the said Act') the period for filing an appeal from an order of the High Court to the same court is thirty days from the date of the order. The impugned order being made on 13th June 1985 the time for filing an appeal against the same expired on or about 13th July 1985. The instant application was filed on 17th Aug. 1985. The question is whether the petitioner has shown sufficient cause for condonation of the delay for the period between 14th July to 16th Aug. 1985. In our view no sufficient cause has been made out by the petition for condonation of the delay for reasons stated hereinafter.

26. In the facts and circumstances of this case for considering the question as to whether the petitioner has shown sufficient cause for condonation of the delay of the entire period, i.e., from 14th June to 13th Aug. 1985 is to be divided into several periods.

27. Firstly, the period from 14th June 1985 until 16th July 1985 when, according to the petitioner, its Advocate-on-Record Mr. S. K. Basu came to know about the ex parte order dt. 13th June 1985 from Mr. Susanta Kumar Bose the Advocate-on-Record of the respondent 2. The petitioner has stated that between 26th Mar. and 30th June 1985 its Advocate-on-Record was seriously ill and didnot attend court or his office and accordingly all his business remained unattended to. Mr. S. K. Basu after his long illness resumed work and attended to his pending and/or outstanding business. It is further stated that Mr. S. K. Basu for the first time came to know about the said order dt. 13th June 1985 on 16th July 1985. All these statements of the petitioner are based on information received from its Advocate-on-Record. It is significant to note that neither Mr. S. K. Basu nor any responsible person employed in his office has filed any affidavit in support of the above statement. No Doctor's affidavit or certificate has been filed in support of the above statement. On behalf of the respondent 2 it is stated that pursuant to Department's notice the order of the appeal court came up for settlement before the Assistant Registrar, Original Side on 11th July 1985. Further, on 10th July 1985 Mr. Someswar Chakraborty, Advocate, a junior and/or Assistant of the petitioner's Advocate-on-Record Mr. S. K. Basu came to the chamber of the Advocate-on-Record of the respondent 2 when Mr. Chakraborty was informed about the said order dt. 13th June 1985. The above statements have not been denied either by the petitioner or its Advocate-on-Record Mr. S. K. Basu. Therefore, admittedly on 10th July the petitioner's Advocate-on-Record Mr. S. K. Basu had knowledge of the said order dt. 13th July 1985.

28. It is further stated by the petitioner that its Advocate-on-Record came to know on 16th July 1985 about the said order dt. 13th June 1985. No proper explanation has been given explaining the delay for the period between 16th July 1985 to 17th Aug. 1985. It is not stated when the petitioner was advised to prefer an appeal against the order dt. 13th June, 1985. The petition of this application was affirmed by the petitioner on 8th Aug. 1985 but it was filed on 14th Aug. 1985. There is no explanation as to why the application was filed on the 14th Aug. 1985 when the petition was affirmed by the petitioner on 8th Aug. 1985. It is also to be noted that the petitioner in this application has prayed, inter alia, for an order to file the appeal against the said order dt. 13th June 1985 without a certified copy thereof upon usual undertakings. It has not been explained at all why such application could not be made earlier. Admittedly there is delay in filing the appeal against the said order dt. 13th June 1985. From what has been stated above the petitioner, in our view, has not been able to explain the delay. In our opinion, no sufficient cause has been shown for not preferring the appeal within the prescribed period of limitation. Therefore, we hold that the petitioner's appeal against the said order dt. 13th June, 1985 is barred by the law of limitation.

29. Next question that arises for consideration is whether this court has jurisdiction to entertain, try and determine the said suit.

30. Learned trial Judge relying on the cases of Tridandeeswami Bhakti Kusum Sraman Maharaj v. Mayaporesree Chaitanya Math, : AIR1983Cal420 and Hindusthan Gas & Industries Ltd. v. Ashish Chandra Sinha, : AIR1981Cal307 held that as the said suit primarily and substantially seeks an adjudication and/or determination of right or interest in an immovable property which is situate outside the original side jurisdiction of this Court it is a suit for land and, therefore, this Court has no jurisdiction to entertain the said suit. His Lordship in his judgment observed as follows : --

'Whether the suit is one for land has to be decided on the basis of the averments made in the plaint and the reliefs claimed therein. One has to look at the primary object of the suit. It would appear from the averments made in the plaint that because the plaintiff failed to construct any factory on the demised land within five years from the date of lease, the defendant purported to invoke Clause 20 of the said deed of lease determining the lease and threatened re-entry into the demised premises. As stated in para 27 of the plaint, the plaintiff's cause of action against the defendant arose on. 13th June 1983 when the plaintiff received the Notice dt. 7th June 1983 whereby it was threatened eviction from the demised premises. In para 29th of the plaint, it has also been stated that there was an immediate and imminent threat by the defendant to evict the plaintiff from the land.'

X X X X X X

'The real object of the plaintiff in the suit is to get a declaration that the said Indentureof Lease dt. 12th Jan. 1965 is subsisting and the plaintiff is entitled to continue in possession as a lessee. If the lease does not subsist the plaintiff has no right to be in possession of the land. One of the grounds taken in the plaint is that in view of the fact that the plaintiff has been declared a Relief. Undertaking the Defendant could not have determined the said lease upon the plaintiff's failure to erect and/or construct any factory on the demised land. The plaintiff, as a matter of fact, asserts its right to continue with the : possession of the demised land as a lessee and as such there has to be a determination as regards the interest of the plaintiff in the demised land. If the lease has been properly determined, in that event the plaintiff has no right to continue as a lessee in the said demised land. The real purpose being to get an adjudication whether the plaintiffs right to continue as a lessee in the land subsists; such adjudication must be held to be an adjudication in respect of an interest in the land. If the plaintiff obtains any decree, it would be enforceable against and binding on the land itself.

30A. The determination of the question whether this court has jurisdiction to entertain, try and determine the said suit necessarily depends upon the allegations made and the reliefs claimed in the plaint of the said suit. In the plaint the petitioner has preyed for the following reliefs : --

'(a) A declaration that the Notice dt. 7th June 1983 from the Defendant to the plaintiff was and is inoperative, illegal and null and void;

(b) A declaration that the said Indenture of Lease dt. 12th Jan. 1965 is subsisting and that the plaintiff is a lessee thereof;

(c) Decree directing the cancellation of the said Notice dt. 12th Jan. 1965;

(d) Injunction restraining the defendant whether by itself or by its servants, agents and/or otherwise however from acting upon or giving effect to or from further acting upon or giving further effect to the said notice of 7th June 1983;

(e) Injunction restraining the defendant whether by itself or by its servants, agents and/or otherwise however from evicting and/or dispossessing the plaintiff from the said land and/or from disturbing and/or interfering with the plaintiff's use, enjoyment and/or possession of the said land.'

31. In support of the aforesaid prayers the relevant averments made in the plaint are that by a notice dt. 7th June 1985 the respondent 1 wrongfully informed the petitioner that the respondent 1 had decided to resume possession of the said premises being the subject matter of the lease dt. 12-1-65 upon the petitioner's failure to construct any factory thereon as per terms and conditions of the Indenture of Lease dt. 12th Jan. 1965 and that possession of the said land was to be resumed by the respondent 1 on 14th July 1983 at 12 noon without any further reference to the petitioner. It is stated by the petitioner that the said notice is bad and ineffective in that although it complained of the petitioner's failure to build a factory on the demised premises in alleged breach of the terms of the said lease it did not determine the said lease in terms of Section 111(g) of the T.P. Act, 1882 and/or in terms of the said lease. It has been further alleged by the petitioner that the respondent in wrongfully and/or illegally threatening to evict the petitioner forcibly from the said premises in furtherance of the said notice dt. 7th June 1983 and without recourse to due process of law and that unless forthwith restrained by injunction the respondent 1 would unlawfully enforce the said notice and evict the petitioner from the said premises and thereby cause irreparable loss and injury to the petitioner. Further allegation of the petitioner is that it is entitled to a declaration that the said lease is subsisting and the lessee thereof is entitled to the use, enjoyment and/or possession of the demised premises without any disturbance and/or interference from the respondent 1. Lastly it has been alleged by the petitioner that its cause of action against the respondent 1 arose on 13th June 1983 when the petitioner received the said notice of 7th June 1983 whereby it was wrongly threatened with eviction from the demised premises and that such cause of action alive and fully enforceable and further in view of the urgency of the case and the immediate and imminent threat by the respondent 1 to evict the petitioner from the demised premises the petitioner has prayed for filing the suit without serving notice upon the respondent 1 as required by Section 80(1) of the Civil P.C.

32. It appears that in view of the threatened eviction from the demised premises being the subject matter of the said lease by the impugned notice dt. 7th June j 1985 the petitioner in the said suit has prayed for a declaration that the said lease is subsisting and that the petitioner as the lessee is entitled to the use, enjoyment and/or possession of the demised premises without any disturbance, or interference from the respondent 1 and according to the petitioner, its cause of action was on the basis of the said notice dt. 7th June 1983 whereby it was wrongfully threatened with eviction from the demised premises. In this connection reference can be made to paras 19, 20 and 27 of the plaint.

33. Mr. Rajat Ghose appearing for the petitioner has submitted that the notice of ejectment dt. 7th June 1983 is bad because of the non-compliance with the Section 114A of the T.P. Act, 1882. According to him, no question of title or possession of the demised premises is involved in the aboye suit. In the plaint the petitioner has only prayed for declaration regarding the impugned notice dt. 7th June 1983 and the lease dt. 12th Jan. 1965 cancellation of the said notice and injunction against the respondent 1. These prayers do not involve any adjudication of the title to the demised premises or question of possession of the demised premises. In support of this contentions Mr. Ghosh has relied on the cases of Shiva Prasad Singh v. Smt. Mandira Kumari Debi AIR 1940 Pat 478; Mahomed Hassan v. Baidya Nath Sahay, AIR 1940 Pat 140; Tridandeeswami Bhakti Kusum Sraman Maharaj v. Mayapore Sree Chaitanya Math, : AIR1983Cal420 , para 11; Moolji Jaitha & Co. v. Khandesh Spinning and Weaving Mills Co. Ltd. AIR 1950 FC 83 and Chotu Mia v. Mt. Sundri AIR 1945 Pat 260 (FB).

34. According to Mr. Bimal Chatterjee the cases cited on behalf of the petitioner have no relevance to the question whether the said suit is or is not a suit for land. According to him, the said suit is a suit for land within the meaning of Clause 12 of the Letters Patent. Admittedly the demised premises is outside the Original Sidejurisdiction of the High Court. The suit involves the question of determination of title to land and the reliefs claimed in the suit would directly and substantially affect the title and/or possession and/or control of the demised premises. According to him, the suit primarily and substantially seeks as adjudication upon title to immovable property and/or determination of right and/or interest thereon. He has relied on the two decisions of this Court relied upon by the learned trial Judge. Mr. Chatterjee has further submitted that Section 111(g) or 114A of the T.P. Act or Section 39 of the Contract Act are not at all relevant for determination of the question whether the suit is a suit for land or not.

35. In the case of Moolji Jaitha & Co. v. Khandesh Spinning and Weaving Mills Co. Ltd. (supra), it was observed that the words suits for land or other immovable property in Clause 12, besides obviously covering claims for recovery of possession of control of land, are apt to connote also suits which primarily and substantially seek an adjudication upon title to immovable property or a determination of any right or interest therein. It was further observed that the expression 'suit for land' covers the following classes of suits : (1) suits for the determination of title to land; (2) suits for possession of land; and (3) other suits in which the reliefs claimed, if granted, would directly affect title to or possession of land. It was further observed that the words 'suit for land' mean a suit for establishing title to land or any interest in the same or for possession or control thereof; and the decree sought for must be intended proprio vigore to be enforceable against and binding on the land.

36. It is not in dispute that the demised premises being the subject matter of the said case is situate outside the Original Side jurisdiction of this Court. It will also appear from the averments contained in the plaint that the petitioner is seeking an order of injunction against eviction from the demised premises and also for an injunction restraining the respondent 1 from dispossessing the petitioner and/or disturbing and/or interfering with its use, enjoyment and/or possession of the demised premises.

37. From the above it would be clear that the real object of the petitioner in the suit isto get a declaration that the said lease is subsisting and the petitioner is entitled to continue his possession as lessee. In other words, the petitioner in this suit asserts his right to continue with the possession of the demised premises as a lessee. Therefore, in this suit it has to be determined whether the petitioner is entitled to continue to be in possession of the demised premises and whether its right in the demised premises under the said lease as alleged by the petitioner should be protected or not. The prayers of the plaint involves the question of adjudication upon title to the demised premises and determination of right therein. The reliefs claimed by the petitioner in the suit, if granted, would directly affect title to or possession of land. Further, the said impugned notice dt. 7th June 1983 interferes with the possession of the petitioner of the demised premises and threatens its eviction from the same. Thus, it is clear that the real object and/or purpose of this suit is to get an adjudication about the petitioner's right, title and interest to and/or in respect of the demised premises.

38. It is well settled that in order to determine the question whether a suit is a suit for land or not the court will have to see what is the primary object of the suit. Upon scrutiny of the averments contained in the plaint and its prayers we have no doubt in our mind that by the suit the petitioner wants to assert its right, title to and interest in respect of the demised premises on the allegations that the lease has not been determined in accordance with law. Therefore, in our view, the adjudication of the suit would primarily rest on the question whether the lease has been lawfully determined or not and whether the petitioner is entitled to be protected from eviction from the demised premises. Taking the averments contained in the plaint to be true and taking the prayers thereof into consideration one will come to an inescapable conclusion that the suit in question involves an adjudication as to the petitioner's right title and interest in the demised premises which is admittedly outside the Original Side jurisdiction of this Court.

39. We are, therefore, of the view that the learned trial Judge was right in his finding that the real purpose in the suit is to get anadjudication as to whether the petitioner's right to continue as a lessee in respect of the demised premises is subsisting and such adjudication must be held to be an adjudication in respect of the interest in land. We further agree with the views of the learned trial Judge that the suit primarily and substantially seeks an adjudication and/or determination of the right and interest in the immovable property which is situate outside the Original Side jurisdiction of this Court and thus, it is a suit for land. Therefore, this Court has no jurisdiction to entertain, try and determine the suit.

40. For all the reasons stated hereinbefore this application, in our view, should be dismissed. This application is, therefore, dismissed. In the facts and circumstances of this case, there will be no order as to costs.

Prabir Kumar Majumdar, J.

I agree.


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