The Court's power to dismiss a suit under Order VII, Rule 11 of the Code of Civil Procedure, 1908 is limited to cases where there is no definite evidence with regard to the quantum of monthly rent.

JUDGMENT :

Krishna Rao, J.

1. The plaintiff has filed Civil Suit No. 173 of 2021 against the defendant for eviction, recovery of possession and for mesne profit. In the suit, the defendant has filed the present application being G.A No. 1 of 2022 for dismissal of the suit or in the alternative, the plaintiff of the suit be taken off the file.

2. The defendant has filed the present application on the following grounds:

a. The tenancy of the defendant is governed under the West Bengal Premises Tenancy Act,1997 and the suit is not maintainable before this Court;

b. The plaintiff has shown the value of the suit overvalued in order to invoke the jurisdiction of this Court by assessing the mesne profit @ Rs.200/- per sq.ft. which is absurd and imaginary.

3. Mr. Rupak Ghosh, learned Advocate representing the defendant submitted that the monthly rent of the suit schedule premises is Rs. 9,923/- per month and the Municipal Taxes payable by the defendant is Rs. 6,003/- thus the plaintiff cannot file the suit for eviction of the defendant before this Court.

4. Mr. Ghosh submitted that the plaintiff has assessed the mesne profit at the rate of Rs. 200/- per sq. ft. per month is absurd and imaginary and in the event, the assessment is to be believed, the plaintiff is entitled to Rs. 2,02,000/- per month though the last monthly rent as claimed by the plaintiff is Rs. 11,411/- per month.

5. Mr. Ghosh submits that the plaintiff has escalated the monthly compensation for letting out the suit premises to the defendant from the alleged amount of Rs. 11,411/- per month to Rs. 2,02,000/- which is an increase by 1670.22%.

6. Mr. Ghosh relied upon the letter dated 20th April, 2019 issued by the plaintiff to the defendant which the plaintiff has suppressed in the suit and in the said letter, the plaintiff has informed the defendant that due to increase of the component of the Kolkata Municipal Corporation Tax, the plaintiff is compelled to increase the rent and municipal taxes by 15% from April’ 2019. He submits that from the said letter, it is admitted that the monthly rent is Rs. 9,923/- and 15% is to be increased on Rs. 9,923/-.

7. Mr. Ghosh submits that in the absence of the mandatory statutory notice under Section 6 of the West Bengal Premises Tenancy Act, 1997, the suit is not maintainable and in the present suit, the plaintiff had not issued any notice under the said Act.

8. Mr. Ghosh submitted that there is no Premises No. 87A, Park Street as described by the plaintiff. He submits that as per Municipal records only Premises No. 87, Park Street is in existence.

9. Mr. Ghosh relied upon the Judgment reported in 2015 SCC Online Cal 507 (State Trading Corporation of India Limited & Anr. vs. Glencore Grain B.V.) and submitted that “It is the duty of the Court in such a situation, on full consideration of the materials on record to form an opinion if the suit is vexatious or an abuse of process of the Court in the sense that it is bogus and irresponsible litigation, and in the event the answer is in the affirmative, the Court should dismiss the suit in limine”.

10. Mr. Ghosh relied upon the unreported judgment passed by the Hon’ble Division Bench of this Court in APD No. 265 of 2017 in CS No. 354 of 2012 dated 25th June, 2019 (EIH Ltd. vs. MS.NADIA A VIRJI) wherein the Hon’ble Court held that “clearly, the rent does not include the rates and taxes. Section 3 (f) refers to rent and has nothing to do with municipal rates and taxes. If the rent component is upto Rs. 10,000/- in respect of any non-residential premises, the tenant at such nonresidential premises enjoys the protection under the said Act. The expression used in Section 3 (f) is “more than”. The quantum indicated in the relevant sub-clause is “ten thousand rupees”. In other words, if the rent at any premises used for non-residential purpose is more than ten thousand rupees per month, it would stand excluded from the purview of the Act.”

11. Mr. Ghosh submitted that the order of the Hon’ble Division Ben