Dismissed

Subhasjit Dutta v. Biswajit Adhikary and Anr.

Gauhati HC7 Jan 2020CRP(IO)/45/2015

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a revision petition challenging an order rejecting interim relief for general damages equivalent to rent. The Court held that since the petitioner had already prayed for decrees for rent and damages in the main suit, no interim monetary compensation could be granted without a formal decree or evidence.

What did the court decide?

The revision petition was dismissed, leaving parties to bear their own costs.

Subhasjit Dutta Vs Biswajit Adhikary and Anr. — Civil Procedure and Limitation | Gauhati HC (2020)

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Page No.# 1/4

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GAHC010243722015

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP(I/O) 45/2015

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1:SUBHASJIT DUTTA

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S/O- SRI SATYENDRA CHANDRA DUTTA, R/O- KUSHAL NAGAR, BAMUNIMAIDAM, GHY- 21, DIST.- KAMRUP, ASSAM.

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VERSUS

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1:BISWAJIT ADHIKARY and ANR S/O- LT. SUKUMAR ADHIKARY, C/O- M/S BISWAJIT JEWELLERY, NEW GUWAHATI RAILWAY COLONY BAZAR, BAMUNIMAIDAN, GHY- 21, DIST.KAMRUP M, ASSAM.

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2:SANJIB DHAR S/O- SRI RAM PRASAD DHAR C/O- M/S. BISWAJIT JEWELLARY NEW GUWAHATI RAILWAY COLONY BAZAR BAMUNIMAIDAM GHY- 21 DIST.- KAMRUP M ASSAM

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Advocate for the Petitioner : MR.N N KARMAKAR

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Advocate for the Respondent : MR.M DUTTAR-1 and 2

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 07.01.2020

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Heard Mr. N. N. Karmakar, learned counsel for the petitioner as well as Mr. Sheeladitya,

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Page No.# 2/4

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learned counsel appearing for the respondents.

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By this application under Article 227 of the Constitution of India, the petitioner has assailed the order dated 18.04.2015 passed by the learned Civil Judge No.2, Kamrup (M), Guwahati in TS 211/2014, thereby rejecting petition No. 3480/2014 filed by the petitionerplaintiff for seeking an interim order to direct the respondents-defendants to pay jointly to the petitioner general damages of Rs.81,000/- due for the period from April, 2008 to June, 2014 and monthly damages @ Rs.700/- per month due from April, 2014 till the suit premises is vacated by them. The learned trial Court had recorded the finding to the effect that the respondents had taken a plea that on denial of the petitioner to receive the rent, the respondent No. 1 was depositing rent in court, as such, the subject matter of the suit requires to be adjudicated by the Court. The learned trial Court had further held that the prayer of the petitioner for an outright order of general damages was at the nascent stage without being subject to judicial scrutiny. Accordingly, the petition was rejected.

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Assailing the said impugned order, the learned counsel for the petitioner has submitted that he has filed a copy of written argument on 02.01.2020. Accordingly, the learned counsel for the petitioner has read over the 12 pages of his written argument. It is submitted that in the present case the petitioner was suffering loss of monthly rent of Rs.700/- per month from 01.04.2008, which amounted to breach of contract of tenancy agreement and therefore, till the possession of the suit premises is restored, the petitioner was entitled to general damages equivalent to rent. By referring to the provisions of Section 94 (e) CPC, it is submitted that as per the said provision, the learned trial Court was required to make an order directing the respondents to pay monthly damages till possession of the suit premises is handed over to the petitioner. In course of his submission, the learned counsel for the petitioner has referred to the provisions of Section 5 (1)(a) of the Assam Urban Areas Rent Control Act, Order VII Rule 7 CPC, Section 94(e) CPC, Clauses- (m), (o), and (p) of Section 108 of the Transfer of Property Act, and Section 35-A CPC. The written argument is kept as a part of the record, as such, this order is not burdened with statement made in written note of argument.

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Page No.# 3/4

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Per-contra, the learned counsel for the respondents has made his submission for sustaining the order impugned herein.

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It is seen that in the plaint, the petitioner-plaintiff has made a prayer for decree of money on account of general damages and special damages quantified as Rs.81,000/- and as Rs.1,26,000/- respectively. Apart from such prayers, there is also a further prayer for grant of decree of a sum of Rs.700/- per month for use of the said house from 01.07.2014 till the date the suit premises is vacated by the respondents as well as for decree for various amounts of money in prayer (c)(i) to prayer (c)(ix) of the plaint. Accordingly, this Court is of the view that as the petitioner has already prayed for a decree for monthly rent, there is no way that the petitioner would be further entitled to an order in form of special or general damages @ Rs.700/- per month, equivalent to rent, without any evidence being led in the suit and without a formal decree being passed. It is needless to say that as the petitioners has made specific prayer for decree of the suit in terms of various prayers inclusive of prayer for rent, general and special damages, if the suit is decreed, he would be entitled to it. The learned counsel for the petitioner has not placed any authority where any court in the country has permitted an interim order of payment of money being passed entitling the landlord to general or special damages in form of money equivalent to rent without any evidence being led and without a finding to hold the landlord to be entitled to such general or special damages, as such, this Court finds that there is no perversity or error apparent in the impugned order and in connection with the reasoning given by the learned trial Court to reject the prayer for an interim relief by filing petition No. 3480/2014. The Court finds the order to perfectly justified in refusing to invoke provisions of Section 94(e) CPC to grant interim monetary compensation in form of general damages.

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Accordingly, this revision is found bereft of any merit and the same is dismissed. The parties are left to bear their own cost.

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Page No.# 4/4

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Before parting with the record, it is made clear that the observation made by this Court shall not influence the learned trial Court while deciding the suit on merit.

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The Registry shall return the LCR expeditiously to the learned Civil Judge, Tinsukia.

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Both sides, who are duly represented by their respective learned counsel, shall appear before the learned Civil Judge No.2, Kamrup (M), Guwahati on 03.02.2020 and by producing a certified copy of this order, seek further instructions, from the said learned trial Court.

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JUDGE

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Comparing Assistant

Subhasjit Dutta v. Biswajit Adhikary and Anr.

Case brief

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Subhasjit Dutta v. Biswajit Adhikary and Anr.

Case brief

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