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IN THE HIGH COURT AT CALCUTTA
SUGATO MAJUMDAR, J.
Debjyoti Basu And Ors. - Plaintiffs
Versus
Bhartia Electric Steel Co. Ltd. & Ors. – Respondents
CS No.300 Of 2000
Decided On : 12-07-2023
LANDLORD TENANT - SUIT FOR MESNE PROFIT - LIMITATION - ORDER II RULE 2 OF THE CODE OF CIVIL PROCEDURE, 1908 - RES JUDICATA - APPLICABILITY - MESNE PROFIT - OCCUPATIONAL CHARGES - OCCUPATIONAL CHARGES - ASSESSMENT - DAMAGES - AWARD - COLLUSIVE SUIT - ABUSE OF PROCESS OF COURT - PLEADINGS - EVIDENTIARY VALUE.
Fact of the Case:
Suit for mesne profit from April 1997 to May 2000. Defendant No. 1 raised a plea of limitation and res judicata. Defendant No. 2, 3 and 4 continued to possess the suit property even after the expiry of tenancy and passing of the eviction decree. Plaintiff filed a previous suit for mesne profit from January 1993 to January 1997, which was decreed.
Finding of the Court:
1. The suit is not barred by limitation or by the provisions of Order II Rule 2 of the Code of Civil Procedure, 1908 or by the principle of res judicata or constructive res judicata. 2. The suit is not an abuse of the process of Court or collusive. 3. The Plaintiff is entitled to mesne profit from April 1997 to May 2000 at a rate of Rs. 23,000/- per month with interest at a rate of 10 per cent per annum along with damages of Rs. 3,00,000/-. 4. Defendant No. 2 & 3 shall be jointly and severally liable to pay the decretal amount to the Plaintiff.
Issues: 1. Whether the suit of the Plaintiff is hit or barred by the provisions under Order II Rule 2 of the Code of Civil Procedure, 1908? 2. Is the suit an abuse of the process of Court or collusive as alleged by the first Defendant? 3. Is any mesne profit recoverable from the first Defendant as claimed? 4. Is the claim or any part of it is barred by the laws of limitation? 5. Whether the Plaintiff is entitled to the relief prayed for? 6. If so who is liable to pay to the Plaintiff? 7. What other relief/reliefs, the Plaintiff is entitled to?
Ratio Decidendi: 1. Every unauthorized occupation in the suit property gives rise to a cause of action everyday; everyday’s unauthorized occupation gives rise to a separate cause of action; it is a continuing one. 2. Cause of action is a continuing one in a claim for mesne profit. Everyday’s’ unauthorized occupation gives rise to a separate claim for mesne profit. 3. The previous suit namely Money Suit No. 63 of 1997 was decreed for payment of mesne profit from the month of January 1993 to January 1997. The present suit is in respect of a mesne profit related to a different period of unauthorized occupation subsequent thereto. 4. Therefore, once a suit is decreed cause of action based on subsequent event and subsequent wrongful period of occupation cannot be said to be barred by the principles of res judicata or constructive res judicata.
Final Decision: The suit is decreed for mesne profit from April 1997 till May 2000 at a rate of Rs. 23,000/- per month with interest at a rate of 10 per cent per annum along with damages of Rs. 3,00,000/-. Defendant no. 2 & 3 shall be jointly and severally liable to pay the decretal amount to the Plaintiff.
JUDGMENT :
(Sugato Majumdar, J.) :
1. The instant suit was filed by the original Plaintiff praying for mesne profit, damages along with other prayers.
2. The plaint case, in nutshell, is that the suit property being the flat no. 14C, located on the 14thfloor of the multistoried building situated at 10 Lord Sinha Road, Kolkata – 700071 was let out to the Defendant no. 1 M/s. Bharatia Electric Steel Company Limited for residential purpose of the executives of the company. The tenancy was initially for a period of three years beginning from 01/08/1977. Initially rent was fixed at Rs.1000/-per month and Rs.600/-towards hiring charges of fittings, fixtures as well as towards service charges. It was represented to the original Plaintiff by the Defendant no. 1 that the flat would be used for occupation of one of its manger T. R. Desai. In terms of the letters dated 26/07/1985 and 30/07/1985, the Defendant no. 1 informed the original Plaintiff that in case, the said Mr. T. R. Desai leaves the job of the company then tenancy would be surrendered and vacant possession would be handed over.
3. Tenancy was extended from time to time and it was last extended upto 31/08/1986. Rent was enhanced to Rs.2000/-per month along with service charges at a rate of Rs.1000/-per month with effect from 01/08/1985.
4. After 31/08/1986, tenancy was not renewed. The Defendant no. 1 also neglected and failed to pay rent thereafter. In the year 1990, the said T. R. Desai left the service of the Defendant no. 1, but the Defendant no. 1 neglected and failed to hand over the vacant possession to the original Plaintiff. Thereafter the original Plaintiff filed a suit for eviction against the Defendant no. 1 in the City Civil Court of Calcutta. The said suit was registered as Ejectment Suit No. 348 of 1991. The said T. R. Desai filed an application in the said suit under Order I Rule 10 (2) of the Code of Civil Procedure, 1908 but the petition was rejected. The Ejectment Suit No. 348 of 1991 was decreed ex-parte against the Defendant no. 1 on 07/01/1994.
5. The original Plaintiff, on the Ejectment Suit No. 348 of 1991 being decreed, drawn up execution proceeding numbered as Ejectment Execution Case No. 44 of 1994. In that proceeding the Defendant no. 2, being one of the legal heirs of the said T. R. Desai filed an application under Order XXI Rule 97/100/101/103 of the Code of Civil Procedure, 1908 which was numbered as Miscellaneous Case No. 1104 of 1994 (Samir Desai vs. Buddhadeb Bose & Ors.). Another application filed for stay of the execution petition was rejected. The Defendant no. 2 moved to this Court on being aggrieved by such rejection of stay application. This Court directed the Trial Court to dispose of the proceeding within two months. Thereafter the Miscellaneous Case No. 1104 of 1994 was converted into Title Suit No. 3940 of 1995 by the Trial Court. The Defendant no. 3 & 4 applied to be made a party in that suit but the same was rejected.
6. The original Plaintiff moved before this Court in C.O. 3203 of 1998 against conversion of the Miscellaneous Case No. 1104 of 1994 to Title Suit No. 3940 of 1995. This Court set aside the Order of conversion and directed the Miscellaneous Case No. 1104 of 1994 to be disposed of. This Miscellaneous Case No. 1104 of 1994 was ultimately dismissed for default.
7. In the meantime the Defendant no. 3 & 4 filed another suit registered as Title Suit No. 177 of 1999 challenging the decree passed in the Ejectment Suit No. 348 of 1991 and also praying for declaration of their legal status as tenant. An application for ad interim order of injunction was moved and order of status quo was granted. Subsequently the order was vacated against which an appeal was preferred in this Court which was also dismissed.
8. Miscellaneous Case No. 1104 of 1994 which was dismissed for default was restored subsequently but this time the Defendant no. 3 & 4 filed an application under Order XXI Rule 97/100/101/103 of the Code of Civil Procedure,
A suit for mesne profit is not barred by limitation or by the provisions of Order II Rule 2 of the Code of Civil Procedure, 1908 or by the principle of res judicata or constructive res judicata, if t....
The main legal point established in the judgment is the determination of mesne profits for unauthorized use and occupation of premises by a tenant, and the court's authority to decree recovery of suc....
Mesne profits can only be claimed from the date of the eviction decree, not from the date of filing the suit, as possession remains lawful until the decree is passed.
The judgment establishes the principle that disputes over ownership must be substantiated with evidence, and mesne profits can be calculated based on the property's potential. Interest on mesne profi....
Tenant remains liable for mesne profits after lease expiration unless proper notice is issued, with courts affirming owner's rights to possession and profit recovery.
The valuation of a suit for recovery of possession must comply with statutory provisions, and claims for mesne profits require a declaration of unauthorized occupation.
The court established that mesne profits can be claimed for unlawful occupation post-de-requisition, and res judicata does not apply if the compensation issue was not previously determined.
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