Dismissed

Ram Vinod Saxena v. Sukhdevraj Kukreja

Uttarakhand HC13 May 2019CLR/46/2019

Case brief

AI extract

What is this about?

High Court dismissed civil revisions filed by tenants challenging an eviction suit as overvalued. Upheld that mesne profits include market rate and overvaluation argument lacks merit; ruled no prejudice under Article 227 arising from change of forum via higher valuation.

What did the court decide?

The civil revisions were dismissed, rejecting the tenant's application to quash the plaint.

Ram Vinod Saxena Vs Sukhdevraj Kukreja — Landlord and Tenant | Uttarakhand HC (2019)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No. 46 of 2019

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Ram Vinod Saxena ….Revisionist Versus Sh. Sukhdevraj Kukreja ….Respondent with Civil Revision No. 48 of 2019 Narendra Kumar Gupta ….Revisionist Versus Sh. Sukhdevraj Kukreja ….Respondent

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Mr. T.A. Khan, Senior Advocate, assisted by Mr. Vinay Bhatt, Advocate for the revisionists. Mr. Piyush Garg and Mr. Priyanshu Gairola, Advocates for the respondents.

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Dated: 13.05.2019

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Hon’ble Manoj K. Tiwari, J. (Oral)

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Heard learned counsel for the parties.

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Since common question of law and facts are involved in these revisions, therefore are being taken up together and are being adjudicated by this common judgment. However, for the sake of clarity, facts of CLR No. 46 of 2019 are being considered.

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The landlord (respondent herein) filed a suit for ejectment, arrears of rent and mesne profits against revisionists. Arrears of rent claimed was mentioned as 5,320/- and mesne profits was quantified as 20,000/per month from 14.06.2018. Landlord also claimed 11,000/-, as cost of notice. For the relief of ejectment, the suit was valued at 14,400/-.

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Tenant (revisionist herein) filed an application contending that the suit has been overvalued; therefore, he prayed that the plaint be rejected. Learned trial Court rejected tenant’s application vide order dated 16.04.2019. Thus, feeling aggrieved, tenant has filed this revision.

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Learned counsel for the revisionists submits that the order passed by learned trial Court is unsustainable, as the following aspects were not considered:-

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(i) the agreed rent for the premises in question was 1,200/- per month, therefore, mesne profits could not have been claimed @ 20,000/- per month;

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(ii) Inflated amount of ` 11,000/- has been claimed as cost of notice to oust the jurisdiction of learned Civil Judge (Senior Division) and to bring the suit within the jurisdiction of District Judge/ Additional District Judge, which has seriously prejudiced the interest of the tenant, inasmuch as, he shall be deprived of one forum available under Article 227 of the Constitution to challenge the judgment given by Revisional Court; and

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(iii) The cost of notice claimed by the landlord cannot be granted by a Small Cause Court.

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The submissions made by learned counsel for the revisionists are bereft of merit. The expression “mesne profits” has been defined under Section 2(12) of C.P.C., which reads as follows:-

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“2(12). “mesne profits” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received

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therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.”

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From the aforesaid definition of mesne profits, it is apparent that expression “mesne profits” includes the rent, which a property can fetch at the prevailing market rate, therefore, there is no substance in the contention made by learned counsel for the revisionists that mesne profits cannot be claimed over and above the rate of agreed rent.

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Hon’ble Supreme Court in the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 has made a distinction between statutory tenancy and contractual tenancy. It has been held where the tenant is governed by provisions of Transfer of Property Act, the tenancy comes to an end by determination of lease and thereafter tenant becomes liable to pay mesne profits at the rate at which the landlord could have let out the premises on being vacated by the tenant. Paragraph 11 of the said judgment is extracted below:-

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“11. Under the general law, and in cases where the tenancy is governed only by the provisions of Transfer of Property Act, 1882, once the tenancy comes to an end by determination of lease under Section 111of the Transfer of Property Act, the right of the tenant to continue in possession of the premises comes to an end and for any period thereafter, for which he continues to occupy the premises, he becomes liable to pay damages for use and occupation at the rate at which the landlord could have let out the premises on being vacated by the tenant. In the case of Chander Kali Bai the tenancy premises were situated in the State of Madhya Pradesh and the provisions of the M.P. Accommodation Control Act, 1961 applied. The suit for eviction was filed on 08.03.1973after serving a notice on the tenant terminating the

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contractual tenancy w.e.f. 31.12.1972. The suit came to be dismissed by the trial Court but decreed in first appeal decided on 11.08.1975. One of the submissions made in this Court on behalf of the tenant-appellant was that no damages from the date of termination of the contractual tenancy could be awarded; the damages could be awarded only from the date when an eviction decree was passed. This Court took into consideration the definition of tenant as contained in Section 2(i) of the M.P. Act which included "any person continuing in possession after the termination of his tenancy" but did not include "any person against whom any order or decree for eviction has been made". The court, persuaded by the said definition, held that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the M.P. Act and on such termination his possession does not become wrongful until and unless a decree for eviction is passed. However, the Court specifically ruled that the tenant continuing in possession even after the passing of the decree became a wrongful occupant of the accommodation. In conclusion the Court held that the tenant was not liable to pay any damages or mesne profits for the period commencing from 01.01.1973 and ending on 10.08.1975 but he remained liable to pay damages or mesne profits from 11.08.1975 until the delivery of the vacant possession of the accommodation. During the course of its decision this Court referred to a decision of Madhya Pradesh High Court in Kikabhai Abdul Hussain Vs. Kamlakar wherein the High Court had held that if a person continues to be in occupation after the termination of the contractual tenancy then on the passing of the decree for eviction he becomes a wrongful occupant of the accommodation since the date of termination. This Court opined that what was held by the Madhya Pradesh High Court seemed to be a theory akin to the theory of "relation back" on the reasoning that on the passing of a decree for possession, the tenant's possession would become unlawful not from the date of the decree but from the date of the termination of the contractual tenancy itself. It is noteworthy that this Court has not disapproved the decision of the Madhya Pradesh High Court in Kikabhai Abdul Hussain case but distinguished it by observing that the law laid down in Kikabhai Abdul Hussain's case was not applicable to the case before it in

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view of the definition of 'tenant' as contained in the M.P. Act and the provisions which came up for consideration of the High Court in Kikabhai Abdul Hussain case were different.”

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Hon’ble Supreme Court in the case of Smt. Nandita Bose Vs. Ratanlan Nahata reported in (1987) 3 SCC 705 held that if valuation is made by the plaintiff on the basis of relief claimed by him, which is neither absurd nor imaginary but requires judicial consideration, and on that basis suit is presented before original side of the High Court, then the High Court cannot reject the relief at the outset without going into its merits and accordingly reducing the valuation and directing return of the plaint for presentation before proper Court in accordance with Section 15 of C.P.C. Paragraph Nos. 3 & 4 of the said judgment is extracted below:-

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“3. Any suit, the value of which was above Rs. 1,00,000, had to be filed in the High Court on its original side. Accordingly, 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 be 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 termination of his contractual tenancy and did not become an unauthorized 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 February 1, 1985 and November 30, 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

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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 possession 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. 78,000 per month from February 1, 1985 to November 30, 1985 aggregating to Rs. 78,000 but was entitled to recover Rs. 14,000 only at the rate of Rs. 1400 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 returned to the appellant for presentation to the proper court. Aggrieved by the decision of the learned Judge, the appellant has held the above appeal by special leave before this Court under Article 136 of the Constitution.

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4. 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 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 jurisdiction of 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. It is also true that the plaintiff cannot invoke the jurisdiction of a court by either grossly over-valuing or grossly undervaluing 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 overvalued with the object of bringing it within the jurisdiction of the High Court. When the suit is filed for the recovery of money, the amount

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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 February 1, 1985 and November 30, 1985 on the footing that the responden’'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 profits/ 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 profits or damages for the period subsequent to February 1, 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 February 1, 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 litigation 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 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

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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.”

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Regarding the second submission made on behalf of the revisionists, learned counsel for the respondent submits that even if the relief regarding cost of notice sought in the plaint is ignored, then also, due to valuation of the suit, it would be cognizable by the District Judge/ Additional District Judge. Thus, learned counsel for the respondent submits that the contention that landlord has added cost of notice to overvalue the suit in order to oust the jurisdiction of Civil Judge is without any substance. This Court finds substance in the argument made on behalf of the respondent. The suit would be cognizable by District Judge/ Additional District Judge, even if the relief regarding cost of the notice is ignored.

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The submission made on behalf of the revisionists that due to filing of the suit in the Court of District Judge, revision against the judgment/ decree of trial Court would lie before the High Court. Thus, he would be deprived of the forum available under article 227 of the Constitution. This submission is also bereft of merit. Provincial Small Cause Courts Act provides only one remedy against the decree passed by trial Court, i.e. revision under Section 25 of the said Act. There is no right of Appeal available to a party under the said Act. The supervisory jurisdiction of this Court under Article 227 of the Constitution is not akin to appellate or revisional jurisdiction. Therefore, there is no substance in the contention made on behalf of the revisionists hat denial of the forum available under Article 227 of the

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Constitution would cause serious prejudice to the revisionists.

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Hon’ble Supreme Court in the case of Kiran Singh and others Vs. Chaman Paswan and others reported in AIR 1954 SC 340 has held that mere change of forum does not cause any prejudice to a party. Paragraph Nos. 11 & 12 of the said judgment are extracted below:-

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“ 11. It is next contended that even treating the matter as governed by Section 11 of the Suits Valuation Act, there was prejudice to the appellants, in that by reason of the undervaluation, their appeal was heard by a court of inferior jurisdiction, while they were entitled to a hearing by the High Court on the facts. It was argued that the right of appeal was a valuable one, and that deprivation of the right of the appellants to appeal to the High Court on facts must therefore be held, without more, to constitute prejudice. This argument proceeds on a misconception. The right of appeal is no doubt a substantive right, and its deprivation is a serious prejudice; but the appellants have not been deprived of the right of appeal against the judgment of the Subordinate Court. The law does provide an appeal against that judgment to the District Court, and the plaintiffs have exercised that right. Indeed, the undervaluation has enlarged the appellants’ right of appeal, because while they would have had only a right of one appeal and that to the High Court if the suit had been correctly valued, by reason of the undervaluation they obtained right to two appeals, one to the District Court and another to the High Court. The complaint of the appellants really is not that they had been deprived of a right of appeal against the judgment of the Subordinate Court, which they have not been, but that an appeal on the facts against that judgment was heard by the District Court and not by the High Court. This objection therefore amounts to this that a change in the forum of appeal is by itself a matter of prejudice for the purpose of Section 11 of the Suits Valuation Act.

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12. The question, therefore, is, can a decree passed on appeal by a court which had

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jurisdiction to entertain it only by reason of undervaluation, be set aside on the ground that on a true valuation that court was not competent to entertain the appeal? Three High Courts have considered the matter in Full Benches, and have come to the conclusion that mere change of forum is not a prejudice within the meaning of Section 11 of the Suits Valuation Act. Vide Kelu Achan v. Cheriya Parvathi Nethiar⁵ Mool Chand v. Ram Kishan 6 and Ramdeo Singh v. Raj Narain 1. In our judgment, the opinion expressed in these decisions is correct. Indeed, it is impossible on the language of the section to come to a different conclusion. If the fact of an appeal being heard by a Subordinate Court or District Court where the appeal would have lain to the High Court if the correct valuation had been given is itself a matter of prejudice, then the decree passed by the Subordinate Court or the District Court must, without more, be liable to be set aside, and the words “unless the overvaluation or undervaluation thereof has prejudicially affected the disposal of the suit or appeal on its merits” would become wholly useless. These words clearly show that the decrees passed in such cases are liable to be interfered with in an appellate court, not in all cases and as a matter of course, but only if prejudice such as is mentioned in the section results. And the prejudice envisaged by that section therefore must be something other than the appeal being heard in a different forum. A contrary conclusion will lead to the surprising result that the section was enacted with the object of curing defects of jurisdiction arising by reason of overvaluation or undervaluation, but that, in fact, this object has not been achieved. We are therefore clearly of opinion that the prejudice contemplated by the section is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined.

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The third submission made on behalf of the revisionist is also unacceptable in view of Section 35 of C.P.C., which provides that every Court shall have the power to award cost. Order 50 of C.P.C. dealing with Provincial Small Cause Courts does not take away this power from a Small Cause Court.

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Learned counsel for the revisionists then submits that, by overvaluing the suit, the landlord has deprived the tenant of remedy i.e. remedy of filing petition under Article 227 of the Constitution.

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Mr. Piyush Garg, learned counsel for the respondents submits that petition under Article 227 of the Constitution is not a statutory remedy and the statutory remedy of filing revision against order of trial Court is not affected. He further submits that landlord, being the Dominus Litis , has valued the suit as per the reliefs claimed on which he has paid Court fee. He further submits that the tenant has been filing frivolous applications one after another, just to delay decision in the suit.

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I have gone through the order passed by learned trial Court, which is challenge herein. Learned trial Court has given valid reason for rejecting the application filed by the tenant.

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In view of discussion made above, this Court finds no scope for interference with the impugned order while exercising revisional jurisdiction under Section 25 of Provincial Small Cause Courts aCt.

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Accordingly, the civil revisions fail and are hereby dismissed.

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(Manoj K. Tiwari, J) 13.05.2019

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Ram Vinod Saxena v. Sukhdevraj Kukreja

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Ram Vinod Saxena v. Sukhdevraj Kukreja

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