IMPORTANT POINT
Mesne Profits – A tenant who once entered property in question lawfully, continues in possession after his right to do so stands extinguished, is liable to compensate landlord for such time period after right of occupancy expires.

1. These petitions for special leave to appeal seek to lay a challenge to the judgment and order dated 7th November 2019 passed in C.O.Nos.1582-85 of 2019 by the High Court of Calcutta. The learned Single Judge while deciding the issue as to whether the West Bengal Tenancy Act, 1997¹[Tenancy Act] or the Transfer of Property Act, 1882²[T.P. Act] was to be applied for framing of the issues in the instant landlord-tenant dispute, held that the Tenancy Act would govern the same.

2. Impugning the judgment of the learned Single Judge, the present Special Leave Petitions were filed before this Court. However, the reasoning adopted therein is not within the scope of the present adjudication. During the pendency of these Special Leave Petitions interlocutory applications have been filed seeking direction for payment of rent and other associated benefits in connection with the property which is the subject matter of the present dispute. It is these Interlocutory Applications that are sought to be disposed of by way of the present judgment.

3. It would, however, be apposite to have a bird’s eye view of the controversy. It is not in dispute that the lis governs four different tenancies. Due to alleged non- payment of rent, the lease was forfeited, and the petitioner-applicant initiated proceedings for ejectment under the T.P. Act. Suit(s) were filed before the City Civil Court at Calcutta seeking inter alia, a) recovery of possession by eviction of defendant (respondent- tenant herein); b) permanent injunction against the present respondents and his agents, servants, employees or associates etc., from alienating, transferring or parting with possession of the property. The respondent-tenant, in opposition thereto, filed an application seeking the rejection of the plaint, on the grounds of jurisdiction, and for the premises to be governed under the Tenancy Act alleging particularly that, possession has been sought in respect of a lease that is yet undetermined; the claim is bad in law, illegal and arbitrary; the suit has been misvalued and the plaint is insufficiently stamped, among others. The same came to be rejected by the concerned Court by order dated 3rd February 2015³[Annexure P 11 of the paper book at page 132]. It was observed: –

“…Without a full-fledged trial and evidence the court cannot come to conclusion that the averments made in the plaint are false and frivolous or that there is any suppression of material fact. Notice of determination of lease, if not at all served upon the defendant and if it is mandatory, then the suit may fill in future. But that cannot come under the ambit of the provision of O 7 R 11 CPC. This court cannot take the view for rejection of plaint without giving or affording opportunity to the parties to bring evidence justifying their plea. On the other hand, because of action of the suit has to be found out on the conjoint reading of all paragraphs of the plaint. Because of action does not mean only a date. Above all, the Plaintiff has specifically mentioned cause of action in paragraph 15 of the plaint. The allegations or the averments made in the plaint has to be proved by the Plaintiff had the time of trial by producing evidence and it is the duty of the Plaintiff to prove that the lease has been determined properly or not.”

Allowing the matter not to rest there, the respondent-tenant pursued the matter further. The High Court, in its Civil Revisional Jurisdiction under Article 227 of the Constitution of India, vide order dated 31st March 2015⁴[Annexure P 12 of the paper book at page 138] upheld the dismissal of the application under Order VII Rule 11. Eventually, this Court vide judgment and order dated 12th December 2018⁵[Annexure P -29 of paper book] directed the remand of the matter, observing thus: –

“9. Taking into consideration the peculiar facts and circumstances of the case, since the suit is still in the preliminary stage, we dispose of the appeal is directing the trial court to frame the issue,