IMPORTANT POINT
Rejection of plaint – Civil suit cannot be maintained by overriding statutory embargo.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 25.06.2019 passed by the Division Bench of the High Court at Calcutta in A.P.D. No. 265/2017 with G.A. No. 1216/2016 with G.A. No. 218/2013 in Civil Suit No. 354/2012, by which the Division Bench of the High Court has dismissed the said appeal and has confirmed the order dated 22.03.2016 passed by the learned Single Judge allowing the application under Order 7 Rule 11 CPC rejecting the plaint on the ground that the suit before the learned Single Judge (original side) would not be maintainable as per the provisions of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the ‘Act 1997’) the original plaintiff-landlord has preferred the present appeals.

2. The facts leading to the present appeals in a nutshell are as under:

That by a Tenancy Agreement dated 6.5.1993, the appellant-original plaintiff-landlord inducted the respondent/defendant as tenant in respect of a showroom admeasuring 1700 sq. ft. on the ground floor of a prime location of Kolkata being the arcade of the Hotel Oberoi Grand at Premises No. 15/2, Jawaharlal Nehru Road, Kolkata. Under the Tenancy Agreement, the rent was fixed at Rs. 10,000/- per month. Under the Tenancy Agreement, the liability to pay the taxes including surcharge and water tax/fees was upon the respondent-tenant.

2.1 The appellant-original plaintiff-landlord terminated the tenancy by issuing notice under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as the ‘TP Act’). Upon expiry of the notice period, the appellant-original plaintiff-landlord filed a suit before the learned Single Judge (Original Side) of the Calcutta High Court being Civil Suit No. 354/2012, seeking eviction of the respondent-tenant from the tenanted premises. According to the appellant-original plaintiff, as the liability to pay the tax payable to the Calcutta Municipal Corporation was upon the respondent-tenant and in view of Section 5(8) of the Act 1997 r/w Section 3(f), the total rent payable by the tenant inclusive of monthly rent and taxes would exceed the ceiling limit of Rs.10,000/- per month specified in Section 3(f)(i) of the Act 1997 for commercial premises, hence the Act 1997 is not applicable and therefore the original plaintiff-landlord terminated the tenancy by issuing notice under Section 106 of the TP Act. The original plaintiff also prayed for the summary judgment.

2.2 The original defendant-tenant after appearing in the suit filed an application before the learned Single Judge under Order 7 Rule 11 CPC for rejection of the plaint, inter alia, on the ground that the suit was barred by reasons of the provisions of the Act 1997 being applicable because the rent of the said premises was Rs. 10,000/- per month and the tenancy being for commercial purpose is not exempted under Section 3(f)(i) of the Act 1997. The learned Single Judge allowed the said application and rejected the plaint vide order dated 22.03.2016 by holding that the rent payable by the tenant is Rs. 10,000/- per month which is below the ceiling limit mentioned in Section 3(f)(i) of the Act 1997 and therefore the Act 1997 is applicable and therefore the suit under Section 106 of the TP Act is impliedly barred by the provisions of the Act 1997.

2.3 Feeling aggrieved and dissatisfied with the order passed by the learned Single Judge in allowing the application under Order 7 Rule 11 CPC and holding that the Act 1997 shall be applicable and therefore the suit under Section 106 of the TP Act is impliedly barred by the provisions of the Act 1997, the appellant-original plaintiff-landlord filed an appeal before the Division Bench of the High Court. By the impugned judgment and order, the Division Bench of the High Court has dismissed the said appeal, confirming the order passed by the learned Single Judge.

2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of th