The main legal point established in the judgment is that the estimate of mesne profit for computing the suit value should not be arbitrary or absurd, and the court should rely on such valuation unless demonstrated to be ridiculous or unreasonable.

JUDGMENT

Arindam Mukherjee, J. - In a suit for eviction wherein the plaintiffs case is that tenancy is governed under the provisions of the Transfer of Property Act, 1882, the defendant has taken out an application for rejection of plaint and / or dismissal of the suit on the ground that the estimate of mesne profit made by the plaintiff and included in claim for computing the suit value is excessive. This has been purposely done to invoke the pecuniary jurisdiction of this Court.

2. In a suit for recovery of possession by a landlord against his/her tenant, the plaintiff can for the purpose of valuation include therein mesne profits and arrears of rent apart from the rent for the year next before the date of presenting the plaint. The valuation of the plaint, therefore, can include Rs.2,63,952/- along with mesne profit and arrears of rent, if any. The estimate of plaintiff's mesne profit is Rs.25,000/- per diem which works out to Rs.10,50,000/- for the period from 22nd April, 2016 to 2nd June, 2016, as mentioned in paragraph 17 of the plaint. There are no arrears of rent and, as such, the suit can be valued at Rs.13,13,952/-, even if interest charged by the plaintiff is excluded. The pecuniary jurisdiction of this Court can, therefore, be attracted since it is in excess of Rs.10 lakhs. The question then arises is whether the estimate of mesne profit for computing the suit value is arbitrary and absurd.

3. The suit property comprises of the 2nd, 3rd and 4th floors of premises no.16, Rabindra Sarani, Kolkata-700001 (hereinafter referred to as the "suit property"). The total area comprised in the suit property is 12,333 Sq. ft. The mesne profit estimated by the plaintiff is Rs.25,000/- per diem which comes to Rs.7,50,000/- per month. If one divides the said sum of Rs.7,50,000/- by the area of the suit property, i.e., 12,333 sq. ft., it comes to about Rs.60/- per sq. ft.

4. The defendant says that the estimate of mesne profit is defined under Section 2(12) of the Code of Civil Procedure, 1908 (hereinafter referred to as the "Code"), it is such profits which the person in wrongful occupation of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits. It is further submitted that the original deed of lease executed by the predecessor-in-interest of the plaintiff and / or defendant contains a clause by which the Land Acquisition Collector is empowered to decide the rate of rent. The said lease dated 29th February, 1968, has expired. The rent assessed by the Land Acquisition Collector on 3rd July, 2019 was Rs.21,996/- which comes about Rs.1.78/- per sq. ft. and, as such, the mesne profit could not have been estimated at about Rs.60/- per sq. ft. for filing the suit. It is further submitted by the defendant that the said defendant could not have received or might have received about Rs.60/- per sq. ft. in accordance with the provisions of section 2(12) of the Code of Civil Procedure, 1905 assuming without admitting that the defendant is in wrongful possession of the suit property.

5. Several judgments have been cited by the defendant as to the permissibility of the plaintiff's estimate of mesne profit for computing the valuation of the suit. Before I deal with such judgments, the point of maintainability of the application as raised by the plaintiff has to be gone into.

6. The plaintiff has submitted that the application cannot be one under the provisions of Order VII Rule 11 of the Code, as it does not fit into any of the clauses of Order VII on which the plaint can be rejected and / or suit be dismissed. At best the plaintiff can file an application under Order VII Rule 10 of the Code and the Court, if not satisfied with the valuation made by the plaintiff, will allow the plaintiff to cure the same, thereafter only if the plaintiff does not take any steps within the time fixed by the Court for curing such defect in valuation, the suit can be dismissed under the p