IMPORTANT POINT
The valuation of a suit is determined by the plaintiff's estimation unless it is grossly improper, and issues of mesne profits must be resolved at trial.

JUDGMENT :

Krishna Rao, J.

1. The defendants have filed the present application being G.A. No. 2 of 2023 under Order 7, Rule 10 of the Code of Civil Procedure, 1908 for return of plaint on the pretext that the suit has not properly valued.

2. The plaintiff has filed the suit against the defendants for their eviction, recovery of possession and mesne profit.

3. Mr. Budhadeb Ghosal, Learned Advocate representing the defendants submits that the plaintiff has valued the mesne profit at the rate of Rs.3000/-per month upon his subjective view which is not correct.

4. Mr. Ghosal submits that suit has been arbitrarily valued in violation of the Court Fees Act, Suit Valuation Act for which necessary enquiry is to be made as provided under Section 7(IV)E and Sections 10 and 11 of the Court Fees Act for ascertaining the actual valuation of the suit.

5. Mr. Ghosal submits that mesne profits is a matter, consequential to the original relief which is an unascertained sum subject to the adjudication under Order 20 Rule 12 of the Code of Civil Procedure, 1908 and the same is not to be assessed as per Subjective Valuation suggested by the plaintiff.

6. Mr. Ghosal in support of his submissions relied upon judgment in the case of Jayantilal Ojha & Co. vs. Dalhousie Properties Ltd. reported in 70 CWN 55 and submitted that Section 7(i) of the Court Fees Act does not apply to mesne profits for the period subsequent to the institution of the suit.

7. Mr. Ghosal relied upon judgment in the case of Pravin Chandra Ochhavlal vs. Girdharlal Govindji reported in 72 CWN 404 and submitted that mesne profit is not synonymous with rent and mesne profit cannot be equated with rent.

8. Mr. Ghosal also relied upon an unreported judgement passed by the Coordinate Bench of this Court in C.S. No. 252 of 2021 in the case of Kausick Auddy and Anr. vs. Uday Shah and Anr. dated 20th December, 2023 and submitted that provisions of Section 7(xii)(d) of the West Bengal Court Fees Act, 1970 which includes even a tenant by holding over determination of a tenancy, the suit is to be valued according to the aggregate rent payable for 12 months immediately preceding to the filing of the suit.

9. Per Contra, Mr. Subhasish Sengupta, Learned Advocate representing the plaintiff submits that the plaintiff is the dominus litis and the plaintiff has valued the suit on the basis of a tentative mesne profit. He submits that the defendants are not the tenants under the provisions of West Bengal Premises Tenancy Act, 1997 and therefore, the defendants are liable to pay mesne profit immediately after the expiry of five years from 10th July, 2001 when the West Bengal Premises Tenancy Act, 1997 came into force.

10. Mr. Sengupta submitted that the defendants are not the tenant under Section 2(g) of the West Bengal Premises Tenancy Act, 1997 and their tenancy has not been terminated by giving notice under Section 6 of the West Bengal Premises Tenancy Act, 1997.

11. Mr. Sengupta submits that cause of action in the plaint is ex-facie clear that the plaintiff is seeking eviction of the defendants from the suit premises on the basis that the defendants are in illegal and unauthorised occupation of the suit premises. He submits that the defendants cannot claim themselves as tenants under the West Bengal Premises Tenancy Act, 1997.

12. Mr. Sengupta submits that the plaintiff has assessed Rs.3000/-per day and has claimed on and from 27th December, 2020. The suit property is consisting of a space about 2000 Sq. Ft. on the first floor at the premises No. 19B, B.B. Ganguly Street which is a Commercial hub and the plaintiff has not grossly overvalued the suit.

13. Mr. Sengupta in support of his submissions relied upon the judgment in the case of Smt. Nandita Bose vs. Ratanlal Nahata reported in (1987) 3 SCC 705 and submitted that question whether the plaintiff is entitled to claim mesne profits or damages as per the claim made by the plaintiff could not have been disposed of at a preliminary stage even before the tria