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Sm. Sukla Chowdhury Vs. Miss Manjolyn Tweedie and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberSuit No. 491 of 1974
Judge
Reported inAIR1975Cal427
ActsCode of Civil Procedure (CPC) , 1908 - Order 2, Rule 3; ;Court-fees Act, 1870 - Section 7; ;West Bengal Court-fees Act, 1970 - Section 7; ;West Bengal Premises Tenancy Act, 1956 - Section 20; ;Suits Valuation Act, 1877 - Section 8
AppellantSm. Sukla Chowdhury
RespondentMiss Manjolyn Tweedie and anr.
Appellant AdvocateK.J. John, Adv.
Respondent AdvocateR.K. Lala, Adv.
DispositionApplication dismissed
Cases ReferredSri Ram v. Bindeshwari
Excerpt:
- .....to the amendment it was provided that the jurisdiction would attract provided the value of the suit or value of the premises exceeded rupees 10,000/-. now by the amendment the value of the premises is no longer relevant. what is relevant is the value of the suit.5. under section 20 of the west bengal premises tenancy act, 1956, readwith the schedule thereto, the value of the suit must exceed rs. 50,000/- only then the high court will have jurisdiction to try and entertain the same.6. the notional valuation of a suit for ejecting a tenant on the basis of preceding 12 months' rent under the court-fees act, 1870 is for computation of the court-fees payable. that notional value and the value for purposes of jurisdiction shall be the same under section 8 of the suits valuation act, 1877......
Judgment:
ORDER

Sabyasachi Mukharji, J.

1. On the 11th of October, 1974 Srimati Sukla Chowdhury claiming to be the owner of premises No. 5, Kyd Street, Calcutta instituted Suit No. 491 of 1974 against the two defendants originally, namely. Miss Manjolyn Tweedie and Miss Shamin Tweedie. It is the case of the plaintiff that on or about 14th March, 1973 at the request of one Mrs. Sofie Tweedie, mother of the said defendants the plaintiff agreed to let out one room attached with bath room and the kitchen on the south-east corner of the ground floor of premises No. 5, Kyd Street, Calcuttato the said defendants on certain terms, inter alia, contained in paragraph 1 of the plaint filed. The said terms permitted the said defendants only to stay and occupy the said room and provided that the defendants should pay Rs. 225/- per month as rent on the 6th of every month according to English calendar, and the said defendants would have exclusive control and possession of the said room. It is further stipulated that the said defendants would return to the flat by 10 P. M. every night and that they should not create any nuisance nor carry on any illegal or immoral activities in the said flat. It was also stipulated that the said defendants would leave the flat when requested to do so by the plaintiff. It is the case of the plaintiff that pursuant to the agreement dated the 14th of March, 1973 the plaintiff delivered possession of the portion of the ground floor of the south-east corner of premises No. 5, Kyd Street, Calcutta. The said defendants took possession of the said flat and became a monthly tenant under the West Bengal Premises Tenancy Act. Then a few days after taking possession of the portion of the said premises, the defendants started coming late and creating nuisance and certain alleged acts of nuisance and alleged immoral activities are mentioned in the plaint. It is further stated that the said defendants failed and neglected to pay to the plaintiff rent since February, 1974 until the institution of the suit, as a result whereof, according to the plaintiff, the said defendants arc defaulters for more than four months in the course of twelve months and became liable to be evicted from the portion of the said premises under the provisions of the West Bengal Premises Tenancy Act. It is alleged that on the 1st December,1973 the said defendants informed the plaintiff that they would vacate the flat on the expiry of the month of December, 1973, but in spite thereof they have not vacated the said premises. It is further alleged that they are staying in the said portion of the flat in violation of the terms of the agreement as trespassers. The plaintiff stated that the said defendants violated the provisions of Clause (m), Clause (o) and Clause (h) of Section 108 of the Transfer of Property Act, 1882 as a result whereof the said defendants and each of them became liable to be evicted from the said premises. The plaintiff has claimed rent @ Rupees 225/- per month from February,1974 to September, 1974. The plaintiff has further claimed interest @ 12 per cent, per annum on the rent due from the respective due dates as and by way of damages. In the premises, the plaintiff has claimed Rs. 1,800/-on account of arrears of rent and Rs. 90/-on account of mesne profits and possession. The plaintiff has claimed decree for possession and mesne profits as mentioned in the plaint.

2. After the institution of the suit the plaintiff made an application for amendment and by an order passed by this Court on the24th of March, 1975, the plaint has been amended by adding defendants Nos. 3, 4 and 5 as parties to the suit. Defendant No. 3 is the mother of the first two defendants and defendant No. 4 is the husband of the said defendant No. 3. It is stated in the amended plaint that defendants Nos. 3, 4 and 5 have wrongfully and illegally occupied a portion of the said premises as trespassers in violation of the agreement as aforesaid between the plaintiff and the defendants Nos. 1 and 2. The plaintiff has therefore claimed also possession from the said defendants. The plaintiff has valued the portion of the said premises and the suit at Rs. 54,000/- for the purpose of jurisdiction.

3. This is an application by the defendants Nos. 1 and 2 for several reliefs, namely -- that the plaint be returned to theplaintiff for presentation to the proper court, alternatively relief be given under Section 17(2) and 17(2-A)(b) of the West Bengal Premises Tenancy Act, 1956, time be allowed to ask for particulars and file the written statement. In this petition the defendants Nos. 1 and 2 have -set out the fact and have alleged that there is no relationship of landlord and tenant between the plaintiff and the defendants and that the suit according to the said defendants, did not disclose material particulars and was a gross abuse of the process of the court and was not maintainable in law. It is further stated that the legal tenant was the mother of the defendants who was regularly depositing the rent with the Rent Controller, Calcutta since February, 1974. It is further stated that this Court has no jurisdiction taking into account the provisions of Section 7(xiii)(d) of the West Bengal Court-fees Act, 1970 read with Suits Valuation Act. According to the said petitioners the value of the suit would be Rs. 4590/- and inasmuch as the same was not within the jurisdiction of this Court, this plaint should be returned. In the alternative, it has been stated that this application should be treated as an application for extension of time for the deposit or payment of the amount as determined by this Court under Section 17 (2) and Section 17 (2-A) (b) of the Act.

4. The first question, therefore, is whether the suit is within the jurisdiction of this Court. Under the Calcutta City Civil and Sessions Courts Acts, after the amendment effected by Section 5 of the City Civil and Sessions Courts (Amendment) Act. 1969, the High Court will have only the jurisdiction to entertain the suit if the value of the suit exceded Rs. 50,000/-. Prior to the amendment it was provided that the jurisdiction would attract provided the value of the suit or value of the premises exceeded Rupees 10,000/-. Now by the amendment the value of the premises is no longer relevant. What is relevant is the value of the suit.

5. Under Section 20 of the West Bengal Premises Tenancy Act, 1956, readwith the schedule thereto, the value of the suit must exceed Rs. 50,000/- only then the High Court will have jurisdiction to try and entertain the same.

6. The notional valuation of a suit for ejecting a tenant on the basis of preceding 12 months' rent under the Court-fees Act, 1870 is for computation of the Court-fees payable. That notional value and the value for purposes of jurisdiction shall be the same under Section 8 of the Suits Valuation Act, 1877. But the Court-fees Act is also applicable in Calcutta High Court now. Therefore, if it was a suit against the tenant, then the relevant question would have been the value of the suit which would have been valued on the basis of 12 months' rent and which in this case would be far below Rs. 50,000/- and this Court will not have jurisdiction to entertain the suit. But under Section 7(vi)(a) of the West Bengal Court-fees Act, 1970 for recovery of possession of the immovable property against a trespasser where no declaration of title to property is either prayed for or necessary, value of the suit for court-fees purposes must be the amount to which relief is sought and as valued in the plaint subject to the provisions of Section 11 of the said Act. Now the value of the suit has been valued in this case in the plaint at Rupees 54,000/-. As mentioned hereinbefore, the plaint was originally against the defendants Nos. 1 and 2 on the basis that they were the tenants of the plaintiff. That cause of action has subsequently been amended to include the defendants Nos. 3, 4 and 5 on the basis that they are trespassers and therefore, recovery in this suit based on the same set of circumstances both against the tenants as well as against the trespassers. The question is in such a case what would be the basis of valuation. Counsel for the applicant contended before me that the suit should be considered as against the original defendant and should be held to be incompetent. He drew my attention to the decision in the case of Girdharlal Govindji v. Pravin Chandra Ochhavlal, (1965) 69 Cal WN 469 and contended that in view of The West Bengal Court-fees Act, 1970 the ratio of the said decision would not be applicable any longer. In this connection reliance may be placed on the decision of this Court in the case of Ramdayee v. Dhanraj, : AIR1972Cal313 where it was held that where a suit was filed for recovery of possession of Schedule A premises against tenant defendant No. 1 and for possession of B Schedule premises against defendants 1 and 2 as a trespasser for a declaration of title in respect of B Schedule premises and for damages, the suit was not bad for mullifariousness as common questions of fact and law would arise if suits in respect of A and B Schedules were filed separately. Therefore, in this connection reference may be made to the provisions of Order 2, Rule 3 (1) which provides the plaintiff might unitein the same suit several causes of action against the same defendant or the same defendants jointly and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants might unite such causes of action in the same suit. Sub-rule (2) of Rule 3 provides that where causes of action are united the jurisdiction of the Court as regards the suit should depend on the amount or value of the aggregate subject-matters at the date of the institution of the suit. I am therefore of the opinion that the combination of the several causes of actions against the defendants Nos. 1 and 2 as well as the defendants Nos. 3, 4 and 5 on the same set of facts was permissible as was done by the amendment of the plaint because the causes of action against these defendants are on the same set of facts. If that is the position then by virtue of Order 2, Rule 3 the jurisdiction of the Court will depend on the amount of value of the aggregate subject-matter of the suit. Now the amount or value of the aggregate subject-matter of the suit after the amendment would be over Rs. 54,000/- as claimed by the plaintiff by virtue of Section 7(vi)(a) of the West Bengal Court-feesAct, 1970. After the amendment of the plaint the amendment would relate back to the date of the institution of the suit and on that date therefore the Court would have jurisdiction. In the premises I am unable to accept the contention that this suit is not maintainable on the ground of jurisdiction. Counsel for the applicant drew my attention to the decision in the cases of B. N. W. Railway v. Sadram. AIR 1922 Cal 500 and in Sri Ram v. Bindeshwari, : AIR1951Pat364 . In my view the ratio of the said decisions are not applicable to the problem that I have to decide in this case. In the premises I need not discuss the said decisions in detail. The first prayer of the petition therefore fails.

7. The second prayer of the petition is that relief be given under Section 17 (2) and under Section 17 (2-A) (b) of the West Bengal Premises Tenancy Act, 1956. Under Sub-clause (b) of Section 2-A of Section 17 it is stated having regard to the circumstances of the tenant the Court might permit the tenant to deposit or pay rent in such instalments as the Court might fix. Therefore it is necessary to determine in order to entitle to this right there must be circumstances entitling the tenant to obtain such relief. No circumstances indeed have been mentioned in the petition. In the premises I am of the opinion that the petitioner is not entitled to alernative relief as asked for. In the premises this application fails. The application is dismissed. Costs cost in the cause. Certified for counsel.


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