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HIGH COURT OF CALCUTTA
K. J. SENGUPTA, JOYMALYA BAGCHI, JJ.
Nandlal Rathi - Appellant
Versus
A. T. Gooyee Enterprises - Respondent
G.A. No. 1766of 2011
Decided on : Sep 30,2011
LANDLORD-TENANT DISPUTE - CHAPTER XIIIA OF THE ORIGINAL SIDE RULES OF THE CALCUTTA HIGH COURT - APPLICABILITY - RESTRICTED TO SUITS MENTIONED IN CLAUSES (A) AND (B) OF RULE 1 - COURT LACKS JURISDICTION TO ENTERTAIN APPLICATION FOR FINAL JUDGMENT IN A SUIT FOR RECOVERY OF POSSESSION OF IMMOVABLE PROPERTY BY A NON-LANDLORD.
Fact of the Case:
The appellant filed a suit for a declaration of monthly tenancy, while the respondent filed a suit for eviction and mesne profits, claiming that the appellant was inducted as a licensee under a leave and license agreement. The appellant's suit was transferred to the High Court and consolidated with the respondent's suit. The respondent took out summons for writing summary judgment, which the appellant contested, raising triable issues. The Trial Judge wrote final judgment in favor of the respondent, holding that the appellant had no defense.
Finding of the Court:
The Court held that the Trial Judge lacked jurisdiction to entertain the respondent's application for final judgment under Chapter XIIIA of the Original Side Rules of the Calcutta High Court. The Court found that the respondent's suit was not one of the suits mentioned in Clauses (A) and (B) of Rule 1 of Chapter XIIIA, which restrict the applicability of the summary procedure to suits by landlords against tenants or for recovery of debts or liquidated demands.
Issues: 1. Whether the Trial Judge had jurisdiction to entertain the respondent's application for final judgment under Chapter XIIIA of the Original Side Rules of the Calcutta High Court? 2. Whether the respondent's suit was one of the suits mentioned in Clauses (A) and (B) of Rule 1 of Chapter XIIIA?
Ratio Decidendi: 1. The Court held that the language of Rule 1 of Chapter XIIIA of the Original Side Rules of the Calcutta High Court is clear that the summary procedure is not intended to be applicable to suits of all descriptions and is restricted to the nature of the suits mentioned therein. 2. The Court held that Clause (B) of Rule 1 enables the landlord to take out such application against the tenant under the circumstances mentioned therein to get a decree in this summary procedure for recovery of possession of immovable properties. 3. The Court held that except in case of induction of a person as a tenancy by and under an agreement by landlord against a tenant no other person can take the advantage of the said Rule.
Final Decision: The Court allowed the appeal, set aside the Trial Judge's order, and held that the Trial Judge lacked jurisdiction to entertain the respondent's application for final judgment. The Court also directed that the interim order passed by the Division Bench should continue.
K.J. SENGUPTA, J.
1. THIS appeal is directed against judgment and order dated 16th March, 2011 passed by the learned Single Judge of this Court on an application under Chapter XIIIA of the Original Side Rules of this Court whereby the learned Judge had written final judgment and decree evicting the appellant.
2. THE fact relating to relationship between the parties as well as leading to preferring this appeal needs to be stated briefly.
3. BOTH the parties brought separate action for their desired relief. The appellant before us had filed Title Suit being No.5305 of 2008 in the City Civil Court at Calcutta in or about December 2008 claiming for a declaratory decree "that the appellant (plaintiff in the above suit) is a monthly tenant under the respondent in respect of the entire basement situated at premises No. 157C, Lenin Sarani, Kolkata-700 013 at a monthly rent of Rs.45,000/- and Rs.1000/ - respectively and other consequential reliefs. Immediately after filing of the said suit the appellant filed an application for interlocutory relief praying for temporary injunction restraining the respondents and/or their men, agents and servants from disturbing plaintiffs peaceful right of his tenancy comprising of entire basement situated at the said premises. From the records it appears that appellant was successful in obtaining interlocutory relief of status quo with regard to the said property in question.
4. THE respondent thereafter filed a suit in this Hon'ble Court in its ordinary original civil jurisdiction as mentioned above claiming decree for recovery of vacant, peaceful and quiet possession of the same property, by evicting the appellant herein and a decree for Rs. 15,30,000/- towards the mesne profit calculated from 1st April, 2009 till 31st August, 2009; decree for further mesne profit at the rate of Rs.10,000/- per diem from the date of filing of the suit till the delivery of vacant peaceful and quiet possession of the said property and other reliefs incidental thereto.
5. IN the suit filed by the appellant he claims that he is a monthly tenant though he was inducted by and under a document which is described as-leave and license for a period of five years. Various grounds were taken to seek for declaration even on the face of the aforesaid document of leave and license for five years.
6. ACCORDING to the appellant before us the said document is in substance a tenancy agreement and acting upon between the parties pursuant thereto will substantiate such claim. The respondent being partnership firm admittedly on the date of institution of the suit was an unregistered one. In its suit it claimed that the appellant before us was inducted as a licensee by and, under an agreement of leave and license dated 1st April, 2004 for a period of five years at a monthly license fee of Rs.45,000/- per month. On the date of execution of the said leave and license, the appellant/defendant in the High Court suit took possession and also deposited a sunrof Rs.2,70,000/- ainterest free security. After expiry of five years by efflux of time on 31st March, 2009 the defendant has failed and neglected to hand over peaceful vacant and khas possession to the plaintiff. The, defendant/appellant also committed breach of said agreement by not paying certain other charges such as electricity and maintenance and the same is liable to be recovered. Even during currency of the said leave and license agreement the defendant had stopped paying license fee for the period from October, 2008 to March, 2009 and the said arrears of payment has been adjusted against the security deposit of Rs.2,70,000/-. The plaintiff issued a notice dated 25th February, 2009 through its advocate under Section 108 of the Transfer of Property. Act, 1882 calling-upon the defendant to deliver vacant and peaceful possession.
7. IT appears from the records that appellant herein filed an application in this Court before the learned Trial Judge for stay of proceedings and furth
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