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2001 Supreme(Cal) 104
HIGH COURT OF CALCUTTA
Dilip Kumar Seth, J.
Russel Properties & Estates
Versus
Indian Alluminium Company Ltd. & Ors.
G.A. No. 655 of 2001 C.S. No. 320 of 2000
Decided On : February 26, 2001
A claim for damages can be joined with a claim for eviction in a suit for eviction, as the damages arise out of the same cause of action as the claim for eviction.
Headnote:
CIVIL PROCEDURE CODE - MISJOINDER OF CAUSES OF ACTION AND PARTIES - VALUATION OF SUIT - SUIT FOR EVICTION WITH CLAIM FOR DAMAGES - WHETHER MISJOINDER OF CAUSES OF ACTION AND PARTIES - WHETHER VALUATION OF SUIT ARBITRARY OR UNREASONABLE.
Fact of the Case:
The plaintiff filed a suit for eviction against the defendant No.1, who was a tenant under the plaintiff, and also claimed damages against the defendant No.1 and defendants No.2 and 3, who were alleged to have colluded with the defendant No.1 in surrendering the tenancy and inducting a third party into the premises. The defendant No.1 filed an application contending that the suit was barred for misjoinder of cause of action and parties, and that the valuation of the suit was arbitrary and unreasonable.
Finding of the Court:
The court held that there was no misjoinder of cause of action or parties, as the claim for damages arose out of the same cause of action as the claim for eviction, and all the defendants were necessary parties to the suit. The court also held that the valuation of the suit was not arbitrary or unreasonable, as the plaintiff had the liberty to determine the valuation unless it could be demonstratively shown to be arbitrary and unreasonable.
Issues: 1. Whether there was misjoinder of cause of action and parties. 2. Whether the valuation of the suit was arbitrary or unreasonable.
Ratio Decidendi: 1. Under Order 2 Rule 4 of the Code of Civil Procedure, claims can be joined together if they are based on the same cause of action, or if they arise out of the same act or transaction or series of acts or transactions. In the present case, the claim for damages arose out of the same cause of action as the claim for eviction, as the damages were claimed for breach of the contract of tenancy. Therefore, there was no misjoinder of cause of action. 2. Under Order 1 Rule 3 of the Code of Civil Procedure, all persons against whom relief arising out of the same act or transaction or series of acts or transactions is sought for, or where if separate suit is brought against such person any common question of law or fact would arise, can be joined as defendants in one suit. In the present case, the alleged surrender of tenancy by defendant No.1 to the defendant No.2 and the induction of defendant No.3 by the defendant No.2, the rein, is a series of acts or transaction, which is but one cause of action. The question of fact and law involved in this case would be common if separate suits are filed against these three defendants. Thus the facts of the present case satisfies the test as discussed above. 3. The valuation of a suit is a matter for the plaintiff to determine, and it will not be held to be arbitrary or unreasonable unless it can be demonstratively shown to be so. In the present case, the defendant No.1 had not demonstrated that the valuation of the suit was arbitrary or unreasonable.
Final Decision: The court dismissed the application filed by the defendant No.1.
D.K. Seth, J.
In this application amongst others the following prayer has been made:
(Para 15)
"(a) The pliant filed in the above suit be rejected and/or be returned to the plaintiff and/or an enquiry be ordered under section 11 of the West Bengal Court Fees Act, 1970."
2. In order to support such relief Mr. Deb, learned counsel for the petitioner contends that the suit is barred for misjoinder of cause of action. The cause of action pleaded cannot be joined together under Order 2 Rule 4 of the Code of Civil Procedure. Next he contends that there are misjoinder of parties and that the suit can not proceed. Third point that was taken by him is that the suit has been valued at Rs. 15 lakhs only to create jurisdiction of this court without any foundation. Elaborating his submission be contended that the present one is a suit for eviction in which the claim for damage cannot be incorporated since it is altogether a different cause of action which cannot be joined in a suit for eviction. Similarly, he contends that the claim for damages is a money claim which is confined against the defendant No.1 alone and as such defendants No.2 and 3 cannot be roped in and therefore it is altogether a mis-joinder of cause of action. Then he contends that the valuation of damages at Rs. 15 lakhs is baseless. No particulars have been given as to how such valuation has been assessed. Therefore, the suit should be dismissed.
3. Mr. Pratap Chatterjee, learned counsel for the plaintiff opposing the said application contends that the defendant No.1 is a tenant under the plaintiff who had taken the property on lease from the defendant No.2. In paragraphs 14 and 15 of the plaint it has been pleaded that in collusion between the three defendants the defendant No.1 purported to have surrendered the tenancy to the defendant No.2 though the defendant No.1 was the tenant under the plaintiff to whom the defendant No.2 had given the property on lease. In turn the defendant No.1 had inducted the defendant No.3 and that there is collusion between the three defendants. Therefore, there is no scope either of mis-joinder of cause of action or misjoinder of parties as soon the allegations are made against all the three defendants. The cause of action cannot be divided and even if it is so divided or separated in that event the identical question and common question of law and fact would be involved. Be that as it may, in a suit for eviction, damages can very well be included for any wrongful action with regard to the condition under which the tenancy is held. Surrendering of the tenancy to a third party is a breach of contract of tenancy between the plaintiff and the defendant No.1 and as such a claim for damages with regard thereto is very much maintainable within the meaning of clause (b) of Rule 4 of Order 2 of Civil Procedure Code. He then contends that the valuation has since been made on the basis of the plaintiffs choice which can be questioned only when the defendants show that such valuation demonstrates to be baseless then only the question can be gone into, otherwise it should be decided on evidence at the time of trial, not at this stage. He has relied on a decision in the case of In re: Smt. Dalia Ghosh, reported in 96 CWN 77. On this ground he contends that the application should be dismissed.
4. I have heard both the Counsel at length.
5. So far as the question of misjoinder of cause of action is concerned, it appears that in paragraphs 14 and 15 of the plaint there are certain pleadings with regard to collusion between the three defendants as contended by Mr. Chatterjee. It is alleged that the defendant No.1 is tenant under the plaintiff who had taken the property on lease from the defendant No.2. In collusion between the said three defendants the defendant No.1 had purported to surrender the tenancy to the defendant No.2 and in turn the defendant No.2 purported to induct the defendant No.3. Thus, it appears that all these three persons are necessary p
