OD-8 & 9 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE APO/25/2025 WITH CS/257/2018 RAJSHRI PRODUCTIONS PVT. LTD.

-VERSUS-

T. E. THOMSON AND COMPANY LTD.

APD/1/2025 IA No.GA/1/2025 RAJSHRI PRODUCTIONS PVT. LTD.

-VERSUS-

T. E. THOMSON AND COMPANY LTD.

Present :

The Hon’ble Justice Debangsu Basak -And-

The Hon’ble Justice Md. Shabbar Rashidi For the Appellant : Mr. Rajarshi Dutta, Adv.

Mr. Varun Kothari, Adv. Mr. A. P. Agarwalla Adv.

For the Respondent : Mr. K. R. Thaker, Sr. Adv.

Mr. Chayan Gupta, Adv.

Mr. Rittick Chowdhury, Adv.

Mr. Dwip Raj Basu, Adv.

HEARD ON : 20.04.2026 DELIVERED ON : 20.04.2026 DEBANGSU BASAK, J.:-

1. Appeal is at the behest of a defendant in a suit for eviction and directed against a judgment and decree dated October 7, 2024 passed in IA No.GA/5/2024 and IA No.GA/6/2024 in CS/257/2018.

2. Appellant suffered a decree for eviction on December 13, 2022 passed under Chapter XIIIA of the Original Side Rules. Decree for eviction was assailed before the Appeal Court and affirmed by order dated February 3, 2023. A Special Leave Petition (SLP) carried was dismissed.

3. Judgment and decree dated December 13, 2022 not only directed eviction but also referred the calculation of mesne profit to the Special Referee.

4. In terms of the judgment and decree dated December 13, 2022, Special Referee calculated the mesne profit. Report of the Special Referee was assailed by both the parties to the suit.

5. IA No.GA/5/2024 is an application by the appellant before us as the defendant in the suit for mesne profit challenging the calculation of mesne profit by the Special Referee while IA No.GA/6/2024 is by the respondent as the plaintiff.

6. Materials placed on record establish that, the suit for eviction was in respect of an immovable property which was being used for commercial purposes. An office was being run by the appellant in such tenanted premises. Appellant made over possession of the tenanted premises to the respondent before us during the pendency of the suit.

7. Commercial Courts Act, 2015 came into effect on and from October 23, 2015. Under Section 15 of the Act of 2015, the suit was required to be transferred to the Commercial Division on its establishment and constitution. Commercial Division was established by this Hon’ble Court on July 16, 2016.

8. None of the parties to the suit nor the Court transferred the suit to the Commercial Division till date.

9. The judgment and decree dated October 7, 2024 was passed by the Court in the non-commercial division. By virtue of Section 7 of the Act of 2015 read with Section 15 thereof, the non-commercial division lost jurisdiction to try and decide the pending suit, which was required to be transferred to the commercial division which was not done.

10. Learned Senior Advocate appearing for the respondent submits that, the claim of the respondent is for mesne profit. It is independent of the contract of tenancy. A subsequent suit for mesne profit is also maintainable. Since the claim for mesne profit is not relating to any agreement involving a commercial dispute within the meaning of Section 2(1)(c) of the Act of 2015, the calculation of mesne profit, therefore, should not be treated to be one involving commercial dispute within the meaning of the Act of 2015 so as to hold that the Court which passed the impugned decree, was without jurisdiction. In support of his contention, he relies upon (1965) 2 SCR 661 (Chittoori Subbanna vs. Kudappa Subbanna & Ors.) and 2023 SCC OnLine SC 1614 (Bharat Petroleum Corporation Ltd. & Anr. vs. ATM Constructions Pvt. Ltd.).

11. With deepest of respect, we are unable to agree with the contentions advanced on behalf of the respondent. Initially, on the date of filing of the suit, the tenancy premises was being exploited for commercial purposes. An office was being run from the tenancy premises. The suit fell within the meaning of Section 2(1)(c)(vii) of the Act of 2015 when it was filed.

12. The suit was decreed on December 13, 2022 for