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High Court Of Calcutta
RAMENDRA MOHAN DATTA, C. K. BANERJEE
PRAHLADRAI AGARWALLA - Appellant
Versus
RENUKA PAL - Respondent
Appeal 444 Of 1979
Decided On : 02/15/1982
CIVIL PROCEDURE CODE - Order 7 Rule 11 (d) - Suit for recovery of possession of immovable property - Jurisdiction of Small Cause Court - Valuation of suit for Court fees - Order 49 Rule 3 Sub-rule (1) - Appealability of order rejecting application for rejection of plaint - Letters Patent, Clause 15 - Judgment.
Fact of the Case:
The respondents, as owners of premises No. 23, Acharya Jagadigh Chandra Bose Road, Calcutta, obtained a decree for ejectment against the erstwhile lessees of the said premises. While the decree was being executed, the predecessor-in-interest of the respondents died. The respondents, as the heirs and legal representatives of the deceased, executed the decree and obtained possession of the premises. The suit was instituted by the respondents against the appellants in the Calcutta High Court by invoking the concurrent jurisdiction of the High Court with the Presidency Small Cause Court, Calcutta. The appellants filed an application for the plaint in the suit to be rejected and taken off the file; alternatively for stay of the suit till the disposal of a suit filed by the appellants in the City Civil Court against the respondents.
Finding of the Court:
The High Court held that the suit was not maintainable in the High Court as it was a suit for recovery of immovable property and the claim for damages was merely an ancillary relief. The High Court further held that the suit could not be valued for the purpose of court-fees at Rs. 500.00 for delivery of possession and at Rs. 4,000.00 for damages, as such valuation was an undervaluation and would not determine the question of jurisdiction. The High Court also held that the order under appeal was not appealable as it was not a judgment within the meaning of Clause 15 of the Letters Patent.
Issues: 1. Whether the suit was maintainable in the High Court? 2. Whether the suit could be valued for the purpose of court-fees at Rs. 500.00 for delivery of possession and at Rs. 4,000.00 for damages? 3. Whether the order under appeal was appealable?
Ratio Decidendi: 1. The High Court held that the suit was not maintainable in the High Court as it was a suit for recovery of immovable property and the claim for damages was merely an ancillary relief. The High Court relied on Section 18 read with Section 19 Clauses (d) and (g) of the Presidency Small Cause Courts Act, which barred the jurisdiction of the Presidency Small Cause Courts to entertain or try such suits. 2. The High Court held that the suit could not be valued for the purpose of court-fees at Rs. 500.00 for delivery of possession and at Rs. 4,000.00 for damages, as such valuation was an undervaluation and would not determine the question of jurisdiction. The High Court relied on Section 7 (vi) of the West Bengal Court Fees Act, 1970, which provided that the court-fees payable for a suit for recovery of immovable property shall be computed according to the amount at which the relief sought is valued in the plaint. 3. The High Court held that the order under appeal was not appealable as it was not a judgment within the meaning of Clause 15 of the Letters Patent. The High Court relied on Order 43 Rule 1 of the Civil Procedure Code, which provides that an order under Order 7 Rule 11 is not appealable.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS is an appeal from the judgment and order dated 19th Nov. , 1979 of R. N. Pyne. J. dismissing the application made by the appellants, inter alia, for the plaint in the suit herein being rejected and taken off the file; alternatively for stay of the suit till the disposal of Title Suit No. 2297 of 1978 (Prahladrai Agarwalla and Ors. v. Shri Rabindranath Pal and Ors.) pending in the City Civil Court at Calcutta; an injunction restraining the respondents herein from proceeding with the suit herein until the disposal of the said application. Facts material for the purpose of this appeal shortly are that, the respondents are owners of premises No. 23, Acharya Jagadigh Chandra Bose Road. Calcutta, within the Ordinary Civil Jurisdiction of this Court. Their predecessor-in-interest Radhakanta Pal obtained a decree for ejectment in the city Civil Court against Dwariknath Das and Anr. , the erstwhile lessees of the said premises. While the said decree was being executed the said Radhakanta Pal died. The respondents as the heirs and legal representatives of the said deceased executed the said decree and obtained possession of the said premises on the 27th Nov. , 1978. The case of the respondents is that since then at all material times they lawfully held, seized and possessed the said premises. The suit herein was instituted by the respondents against the appellants in this Court by invoking the concurrent jurisdiction of this Court with the Presidency Small Cause Court, Calcutta. The relevant paragraphs of the plaint filed in the suit herein which would be material for the purposes of this appeal, are set out below :"6. By an agreement of tenancy dated Dec. 1, 1978 entered into by the plaintiff No. 2 (being the respondent No. 2 Rabindranath Pal) on behalf of all the plaintiffs (being the other respondents) the defendant No. 3 (being the appellant No. 3 Kailash Agarwalla) was granted the tenancy and as such tenant possession of one shop room on the ground floor of the said premises No. 128, Acharya Jagadish Chandra Bose Road, Calcutta. 7. On or about Dec. 9, 1978, the defendants (being the appellants) wrongfully and/or illegally dispossessed the plainliffs without their consent and without recourse to law of the entire first floor of the said premises No. 128, Acharya Jagadish Chandra Bose Road, Calcutta, save and except two rooms in possession of one Bimal Homeo Hall Private Ltd. , by forcing open the Padlock to the said floor which was put by the plaintiff after obtaining possession of the premises as aforesaid. The defendants have also removed the furniture kept by the plaintiff in the first floor of the said premises wrongfully, illegally and without the consent of the plaintiff, 8. . . . . . . . . . 9. . . . . . .
. . . 10. The plaintiffs state that in the premises aforesaid they are entitled to recover possession of the said property notwithstanding any title, right or interest which may be set up by the defendants or by any of them. 11. . . . . . . . . . . 12. Further and in the alternative by reason of the premises the plaintiffs have suffered damages caused by the defendants and by each of them in respect of the suit property which the plaintiff assess at Rs. 4,000. 00 on and from Dec. 9, 1978 being the date of their dispossession. 13. The plaintiffs are entitled to and claim recovery of possession of suit property and damages as aforesaid from the defendants from the date of dispossession i. e. . Dec. 9, 1978. 14. The plaintiffs' cause of action in this suit arose on Dec. 9. 1978 at premises No. 128, Acharya Jagadish Chandra Bose Road within the jurisdiction of this Hon'ble Court and has been and still is continuing from day-to-day. 15. Inasmuch as the value of the suit property exceed Rs. 50,000. 00 and damages claimed by the plaintiffs do not exceed Rs. 5,000. 00 this Hon'ble Court has the jurisdiction concurrent with Small Cause Court at Calcutta and the City Civil Court at Calcutta has not the j
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