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PETITIONER: SMT. NANDITA BOSE

       Vs.

RESPONDENT: RATANLAL NAHATA

DATE OF JUDGMENT04/08/1987

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)

CITATION:  1987 AIR 1947            1987 SCR  (3) 792  1987 SCC  (3) 705        JT 1987 (3)   217  1987 SCALE  (2)215

ACT:     Code  of  Civil Procedure, 1908--R. 10,  O.  7--Power  to return  plaint at any stage of suit for presentation to  the proper Court cannot be exercised at the preliminary stage by prejudging an issue arising in the suit.

HEADNOTE:      Upon the respondent-tenant committing default in payment of  rent  from  June, 1984, the  appellant  landlady,  after serving  a notice determining the tenancy with  effect  from 31st  January, 1985 and calling upon him to deliver  posses- sion  of the premises in question, filed a suit in the  High Court  for  recovery of possession, arrears of rent  at  the rate of Rs. 1,400 per month and mesne profits/damages at the rate  of Rs.7,800 per month from the date of termination  of the  tenancy.  The respondent filed an  application  praying that the plaint be taken off from the file of the High Court and  returned  to the appellant for filing the same  in  the proper  Court.  The High Court, accepting the  plea  of  the respondent  that  under the provisions of  the  West  Bengal Premises Tenancy Act, 1956, the expression ’tenant’ included a person continuing in possession of the accommodation  even after the termination of his contractual tenancy and on such termination the possession of a tenant did not become wrong- ful, held that the appellant was not entitled to claim mesne profits/damages aggregating to Rs.78,000 and therefore,  the suit should have been valued at Rs.42,000 and, since no suit the value of which was less than Rupees one lakh could  have been  filed in the High Court, directed that the  plaint  be returned  to  the appellant for presentation to  the  proper Court.     Allowing  the  appeal and directing the  High  Court  to proceed with the hearing of the suit.     HELD: On the facts and in the circumstances of the  case the High Court was in error in prejudging the issue relating to the right of the appellant to claim mesne profits/damages and  in  directing that the plaint should  be  returned  for presentation to the proper Court. [797C-D] (i) The principles which regulate the pecuniary jurisdiction of 793

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civil courts are well-settled. Ordinarily, the valuation  of a  suit  depends upon the reliefs claimed  therein  and  the plaintiff’s valuation in his plaint determines the Court  in which it can be presented. Under s. 15, C.P.C., every plaint should be instituted in the Court of the lowest grade compe- tent  to  try it. The Court always has the  jurisdiction  to prevent  the abuse of the process of law and  the  plaintiff cannot invoke the jurisdiction of a Court by either  grossly over-valuing or grossly under-valuing a suit. Under r. 10 of 0.7, C.P.C., the plaint can be returned at any stage of  the suit for presentation to the Court in which the suit  should have been instituted. [796A-C]     (ii)  In  the instant case the appellant has  claimed  a decree  for Rs.78,000 for the period between  1st  February, 1985  and  30th November, 1985 on the footing that  the  re- spondent’s possession was unauthorised or illegal and he was liable to pay mesne profits or damages. The question whether the appellant would be entitled to a decree for mesne  prof- its/damages  at  the rate of Rs.7,800 per month  or  at  any other rate after the termination of the tenancy is a  matter which  has to be decided in the suit and it could  not  have been  disposed  of at a preliminary stage  even  before  the trial had commenced. That question has to be decided at  the conclusion  of the trial along with other issues arising  in the  suit. Having regard to some of the decisions  on  which reliance  is  placed by the appellant in the course  of  the appeal, the matter is not free from doubt and the claim  for mesne profits/damages is neither palpably absurd nor  imagi- nary. It needs judicial consideration. [796D-G]     (iii)  The  acceptance of the view put  forward  by  the respondent may lead to encouraging a tenant who has forfeit- ed  his right to the tenancy to carry on a dilatory  litiga- tion without compensating the landlord suitably for the loss suffered  by him on account of the unreasonable  deprivation of  the possession of his premises over a long period  until he  is  able to get possession of the premises  through  the Court.  It cannot, therefore, be stated at this  stage  that the  claim for mesne profits/ damages had been made  without good faith and with the sole object of instituting the  said suit  before the High Court even though it had no  jurisdic- tion to try it. [796G-H; 797A]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1544  of 1987.     From  the  Judgment  and Order dated 1.9.  1986  of  the Calcutta High Court in suit No. 755 of 1985. 794      S.K.  Kapoor, Ranjan Dev, Surendra Dube and Mrs.  Indra Sawhney for the Appellant. L.N. Sinha and P.P. Singh for the Respondent. The Judgment of the Court was delivered by     VENKATARAMIAH, J. The question involved in this case  is whether  the High Court of Calcutta was right  in  returning the  plaint presented by the appellant for  presentation  to the proper Court under Order 7 Rule 10 of the Code of  Civil Procedure, 1908 (hereinafter referred to as ’the Code’).     The  appellant is the owner of Flat No. 2 (now known  as ’F’), 7th Floor, Gem Building at 5/B, Russel Street, Calcut- ta.  The said premises had been leased out in favour of  the respondent  on a monthly rent of Rs, 1,400.  The  respondent committed  default in the payment of rent from the month  of June, 1984. The appellant, therefore, served a notice on the

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respondent  under  section 106 of the Transfer  of  Property Act,  1882  and section 13(6) of the  West  Bengal  Premises Tenancy  Act,  1956 (hereinafter referred to as  ’the  Act’) determining  the  tenancy with the expiry of  the  month  of January,  1985 and called upon him to deliver possession  of the  premises. Upon failure of the respondent to  hand  over the  vacant  possession  of the premises on  the  expiry  of January, 1985 the appellant filed a suit in Suit No. 755  of 1985 on the Original Side of the High Court of Calcutta  for recovery  of possession of the premises and for recovery  of arrears of rent amounting to Rs. 11,200 and of Rs.78,000  by way of mesne profits/damages, claiming mesne profits/damages at  the rate of Rs.7,800 per month from 1st  February,  1985 until 30th November, 1985. The appellant valued the suit for purposes of court fee and jurisdiction at Rs. 1,06,000 which was arrived at as follows:       (i) For purposes of possession         --Rs.  16,800/-       ( 12 times the monthly rent       of Rs. 1400/-)       (ii) For recovery of arrears of        --Rs.11,200/-       rent upto 31.1. 1985      (iii) For recovery of mesne             -- Rs. 78,000/-         profits or damages at         Rs.7,800/- per month from         1.2. 1985 to 30.11. 1985                       Total:                --Rs. 1,06,000/- 795     Any suit, the value of which was above Rs. 1,00,000, had to be filed in the High Court on its Original Side.  Accord- ingly,  the  plaint was presented in the  High  Court  after paying  the  necessary court fee on the basis of  the  above valuation. After the respondent was served with the  summons in  the suit, he made an application before the  High  Court for  taking the plaint off its file and for returning it  to the  appellant for filing the same in the proper court.  The respondent stated in the application that on a plain reading of the definition of the expression ’tenant in the Act,  the respondent continued to be the tenant even after the  termi- nation  of  his contractual tenancy and did  not  become  an unauthorised  occupant  of  the accommodation  and  he  was, therefore,  liable to pay rent at the rate of Rs,  1400  per month  till  the date of the suit. He  further  stated  that calculated  on  the  above basis, the  respondent  would  be liable to pay Rs. 14,000 only by way of arrears of rent  for the  period  between 1st February, 1985 and  30th  November, 1985 instead of Rs.78,000 claimed by the appellant by way of mesne  profits/ damages for the said period. The  respondent contended  that  the valuation of the suit for  purposes  of jurisdiction  would be Rs.42,000 only and that the value  of the suit being less than Rs. 1,00,000 it had to be filed  in the City Civil Court of Calcutta. The respondent, therefore, prayed  that the plaint should be returned for  presentation to  the  proper court by virtue of section 15  of  the  Code which  provided that every suit should be instituted in  the court  of the lowest grade competent to try it. The  learned Judge on hearing the above application accepted the plea  of the  respondent  that under the provisions of  the  Act  the expression ’tenant’ included a person continuing in  posses- sion of the accommodation even after the termination of  his contractual  tenancy and on such termination the  possession of  a  tenant did not become wrongful.  The  learned  Judge, therefore, held that the appellant was not entitled to claim mesne profits/damages at the rate of Rs.7,800 per month from 1st  February,  1985 to 30th November, 1985  aggregating  to Rs.78,000 but was entitled to recover Rs. 14,000 only at the

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rate  of Rs. 1,400 per month in respect of that period.  The learned Judge found that the suit should have been valued at Rs.42,000  and not at Rs. 1,06,000 and that the  High  Court had no jurisdiction to entertain the said suit. Accordingly, the  learned  Judge directed that the plaint should  be  re- turned  to  the  appellant for presentation  to  the  proper court.  Aggrieved by the decision of the learned Judge,  the appellant has filed the above appeal by special leave before this Court under Article 136 of the Constitution.     Under  section  15 of the Code every  plaint  should  be instituted in the court of the lowest grade competent to try it and if the value of the 796 suit was Rs.42,000 only it had to be filed in the City Civil Court  of Calcutta and not on the Original Side of the  High Court. The principles which regulate the pecuniary jurisdic- tion of civil courts are wellsettled. Ordinarily, the valua- tion of a suit depends upon the reliefs claimed therein  and the plaintiff’s valuation in his plaint determines the Court in  which  it  can be presented. It is also  true  that  the plaintiff  cannot  invoke  the jurisdiction of  a  court  by either grossly over-valuing or grossly under-valuing a suit. The  Court always has the jurisdiction to prevent the  abuse of the process of law. Under rule 10 of Order 7 of the  Code the  plaint  can be returned at any stage of  the  suit  for presentation to the court in which the suit should have been instituted.  The question for consideration in this case  is whether  in  the present case the plaint  has  been  grossly over-valued with the object of bringing it within the juris- diction  of the High Court. When the suit is filed  for  the recovery of money, the amount claimed has to be included  in determining  the value of the suit. In the instant case  the appellant has claimed a decree for Rs.78,000 (at the rate of Rs.7,800  per  month) for the period between  1st  February, 1985  and  30th November, 1985 on the footing that  the  re- spondent’s possession was unauthorised or illegal and he was liable to pay mesne profits or damages. The question whether the appellant would be entitled to a decree for mesne  prof- its/  damages  at the rate of Rs.7,800 per month or  at  any other rate after the termination of the tenancy is a  matter which  has  to be decided in the suit. If ultimately  it  is found that the appellant is not entitled to get mesne  prof- its  or damages for the period subsequent to  1st  February, 1985 and that she is only entitled to receive Rs. 1,400  per month,  the suit in respect of the claim over and above  Rs. 1,400 per month, will have to be dismissed. But the question whether  she was entitled to claim mesne profits or  damages in  respect of the period subsequent to 1st  February,  1985 could not have been disposed of at a preliminary stage  even before  the  trial had commenced. That question  has  to  be decided  at  the conclusion of the trial  along  with  other issues  arising  in the suit. Having regard to some  of  the decisions  on which reliance is placed by the  appellant  in the course of the appeal we are of the view that the  matter is not free from doubt. The claim for mesne profits/ damages is neither palpably absurd nor imaginary. It needs  judicial consideration. The acceptance of the view put forward by the respondent may lead to encouraging a tenant who has forfeit- ed  his right to the tenancy to carry on a dilatory  litiga- tion without compensating the landlord suitably for the loss suffered  by him on account of the unreasonable  deprivation of  the possession of his premises over a long period  until he  is  able to get possession of the premises  through  the Court.  We cannot, therefore, state at this stage  that  the claim for

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797 mesne  profits/damages had been made without good faith  and with the sole object of instituting the said suit before the High Court of Calcutta even though it had no jurisdiction to try  it. We do not agree with the submission made on  behalf of  the respondent that the appellant had  "dishonestly  and intentionally  inflated  the value of the suit in  order  to invite  the jurisdiction of a particular court which has  no jurisdiction otherwise." If mesne profits/damages are  found to  be payable then the claim made at the rate  of  Rs.7,800 per month for a premises of the nature in question which  is situated  in Calcutta does not appear to be fanciful  having regard  to the prevailing situation. We however  express  no opinion  on the actual amount that may be awarded  as  mesne profits/damages  in  the event of the liability  to  pay  it being established.     We are of the view that on the facts and in the  circum- stances of the case the High Court was in error in  prejudg- ing  the  issue relating to the right of  the  appellant  to claim mesne profits/damages and in directing that the plaint should be returned for presentation to the proper court. We, therefore, set aside the order passed by the High Court  and direct  the  High Court to proceed with the hearing  of  the suit.  We  also  direct that the observations  made  by  the learned Judge in the course of the order against which  this appeal  is  filed regarding the right of  the  appellant  to claim the mesne profits/damages at the rate of Rs.7,800  per month shall not be binding on the parties and that the  said question  shall be decided afresh by the High Court  in  the course of the trial. We, however, express no opinion on  the correctness  or  otherwise of the observations made  by  the learned Judge on the above question. The appeal is accordingly allowed. H.L.C.                                                Appeal allowed. 798