w w w . L a w y e r S e r v i c e s . i n



Hindusthan Consultancy & Services Ltd. v/s State of West Bengal & Another


Company & Directors' Information:- J K CONSULTANCY AND SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1995PTC066762

Company & Directors' Information:- H S CONSULTANCY PVT LTD [Active] CIN = U74140WB1988PTC044368

Company & Directors' Information:- S M CONSULTANCY PVT LTD [Active] CIN = U74140WB1992PTC057293

Company & Directors' Information:- K S CONSULTANCY SERVICES PVT LTD [Active] CIN = U74140WB1988PTC045137

Company & Directors' Information:- HINDUSTHAN CONSULTANCY AND SERVICES LIMITED [Active] CIN = U74140WB1980PLC221662

Company & Directors' Information:- HINDUSTHAN CONSULTANCY AND SERVICES LIMITED [Active] CIN = U74140DL1980PLC010952

Company & Directors' Information:- E TO E CONSULTANCY PRIVATE LIMITED [Active] CIN = U63030KA2008PTC048557

Company & Directors' Information:- Y A CONSULTANCY SERVICES PVT LTD [Active] CIN = U74140WB1987PTC043225

Company & Directors' Information:- R. A. CONSULTANCY PVT. LTD. [Under Process of Striking Off] CIN = U67120WB1994PTC066521

Company & Directors' Information:- V G CONSULTANCY PRIVATE LIMITED [Active] CIN = U74899DL1993PTC054746

Company & Directors' Information:- L S D CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262781

Company & Directors' Information:- K .P. A. CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140WB2010PTC142889

Company & Directors' Information:- P O CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U93000WB2009PTC134219

Company & Directors' Information:- T K M CONSULTANCY INDIA PRIVATE LIMITED [Strike Off] CIN = U74140KL1998PTC012694

Company & Directors' Information:- A & A CONSULTANCY PVT. LTD. [Active] CIN = U74140WB1986PTC040777

Company & Directors' Information:- Y K CONSULTANCY (INDIA) PRIVATE LIMITED [Active] CIN = U74140DL2003PTC121113

Company & Directors' Information:- L M J CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140DL2010PTC208950

Company & Directors' Information:- R. K . CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74140AS2006PTC008131

Company & Directors' Information:- M U S INDIA CONSULTANCY LIMITED [Strike Off] CIN = U74900WB2013PLC191253

Company & Directors' Information:- A & A SERVICES AND CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74140OR2012PTC015010

Company & Directors' Information:- J R CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74900TN2015PTC102294

Company & Directors' Information:- R A D CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140DL2011PTC224038

Company & Directors' Information:- S I M CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74999DL2007PTC162468

Company & Directors' Information:- Y. K. M. CONSULTANCY PRIVATE LIMITED [Active] CIN = U74900DL2013PTC254940

Company & Directors' Information:- J. P. CONSULTANCY PRIVATE LIMITED [Active] CIN = U51909GJ2002PTC040433

Company & Directors' Information:- V & T CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74999CH2005PTC027862

Company & Directors' Information:- P C CONSULTANCY PVT LTD [Active] CIN = U74210WB1991PTC053835

Company & Directors' Information:- J A CONSULTANCY PRIVATE LIMITED [Under Process of Striking Off] CIN = U93090MH2008PTC188284

Company & Directors' Information:- L M B CONSULTANCY SERVICES INDIA PRIVATE LIMITED [Active] CIN = U74999KL2002PTC015318

Company & Directors' Information:- M Y M CONSULTANCY SERVICES INDIA PRIVATE LIMITED [Strike Off] CIN = U74900KA2011PTC058364

Company & Directors' Information:- S K A CONSULTANCY PRIVATE LIMITED [Active] CIN = U74999UP2020PTC136502

Company & Directors' Information:- T C S CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140RJ1995PTC011052

Company & Directors' Information:- K B M CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U72900TG2002PTC038403

Company & Directors' Information:- D M M CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140WB2010PTC151887

Company & Directors' Information:- C I S (INDIA) CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74120BR2013PTC021019

Company & Directors' Information:- R I W CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U72200KL2013PTC034174

Company & Directors' Information:- P S P CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74900DL2011PTC222022

Company & Directors' Information:- N. K. CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140HR2006PTC036471

Company & Directors' Information:- M E CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74140KL2012PTC031172

Company & Directors' Information:- M & M CONSULTANCY SERVICES PVT. LTD. [Strike Off] CIN = U74140WB1992PTC056149

Company & Directors' Information:- V S B D CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140TN2000PTC045338

Company & Directors' Information:- Z K CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74210DL1993PTC052338

Company & Directors' Information:- B AND D CONSULTANCY SERVICES PVT LTD [Strike Off] CIN = U74210MH1982PTC027430

Company & Directors' Information:- D. G. CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140WB2008PTC129948

Company & Directors' Information:- V F C CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140RJ2015PTC048025

Company & Directors' Information:- E & C CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74140TN2007PTC062260

Company & Directors' Information:- L & R CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140TN2009PTC072839

Company & Directors' Information:- P P CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74210TN1982PTC009556

Company & Directors' Information:- N R 'S CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74210TN1986PTC013630

Company & Directors' Information:- M F S CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140MH2008PTC177948

Company & Directors' Information:- D P CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74140PN2008PTC132654

Company & Directors' Information:- C AND H CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74100MH2004PTC148618

Company & Directors' Information:- R V K CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74120MH2011PTC221273

Company & Directors' Information:- H A S D CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74120MH2011PTC222997

Company & Directors' Information:- H H S CONSULTANCY PRIVATE LIMITED [Active] CIN = U74120MH2013PTC250345

Company & Directors' Information:- M & W CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74910TN2004PTC053384

Company & Directors' Information:- J K M CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74120UP2010PTC042726

Company & Directors' Information:- Y V R CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74900TG2015PTC098309

Company & Directors' Information:- J L I CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U72300UP2012PTC052649

Company & Directors' Information:- D R M B CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74900WB2014PTC201139

Company & Directors' Information:- M P CONSULTANCY PVT LTD [Strike Off] CIN = U74120WB1996PTC081085

Company & Directors' Information:- J. L. CONSULTANCY PVT LTD [Active] CIN = U74140WB1985PTC039818

Company & Directors' Information:- S E S CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74999WB2011PTC170939

Company & Directors' Information:- G P R CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140CH2012PTC033622

Company & Directors' Information:- S K CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U93000JH2012PTC000348

Company & Directors' Information:- R & A CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U67100DL2011PTC215340

Company & Directors' Information:- M J M CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74140DL2005PTC133200

Company & Directors' Information:- A C G CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74140DL2005PTC140720

Company & Directors' Information:- H M S CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140DL2010PTC201488

Company & Directors' Information:- D & G CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U65990DL2011PTC214142

Company & Directors' Information:- R H H H CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74900AP2014PTC095348

Company & Directors' Information:- A & C CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140KA2008PTC046754

Company & Directors' Information:- J S M CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U93000HR2011PTC043455

Company & Directors' Information:- A P R CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U93000KA2014PTC073639

Company & Directors' Information:- L AND L CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74140KL1997PTC011084

Company & Directors' Information:- J AND S CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74140KL2005PTC018496

Company & Directors' Information:- P E B CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74140KL2011PTC027680

Company & Directors' Information:- Z & H CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U85190KL2008PTC023534

Company & Directors' Information:- D C D CONSULTANCY PRIVATE LIMITED [Active] CIN = U74999RJ2020PTC071399

Company & Directors' Information:- D AND N CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74999PN2020PTC195417

Company & Directors' Information:- S S G CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140TN1997PTC037763

Company & Directors' Information:- V Z CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74140MH2007PTC170875

Company & Directors' Information:- F T CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74900CH2007PTC030854

Company & Directors' Information:- A. A. R. M. CONSULTANCY SERVICES PRIVATE LIMITED [Under Process of Striking Off] CIN = U74140DL2006PTC150076

Company & Directors' Information:- M AND M CONSULTANCY PVT LTD [Strike Off] CIN = U74140PB1985PTC006557

Company & Directors' Information:- SERVICES AND CONSULTANCY P. LTD. [Strike Off] CIN = U99999DL2000PTC902217

    C.S. No. 489 of 2000 (Original Side)

    Decided On, 07 February 2014

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE JUSTICE MR. DEBANGSU BASAK

    For the Plaintiff: Ajoy Krishna Chatterjee, Sr. Advocate Tapas Banerjee, Rajarshi Dutta, A.P. Agarwalla, Advocates. For the Defendants: Parthosarathi Bose, Sr. Advocate Chandrika Joshi, Advocate.



Judgment Text

Debangsu Basak, J.

On November 9, 1949 the State of West Bengal, the Defendant No.1 herein, requisitioned 1,000 square feet on the north western portion of the ground floor of Premises No. P-13, Mission Row Extension, Calcutta presently known as 27, R.N. Mukherjee Road, Kolkata.

The Defendant No. 1 took possession of the requisitioned portion of the premises and put the Defendant No. 2 in possession thereof. The then owner of the premises entered into an agreement dated June 23, 1952 with the Defendant No. 1 for rent compensation in respect of the requisitioned portion. The rent compensation was fixed at Rs. 404/- per month. The premises were requisitioned under the West Bengal Premises Requisition & Control (Temporary Provisions) Act, 1947. An amendment to the 1947 Act was introduced which came into effect from March 31, 1987. The amendment, that is, Section 10B of the Act of 1947 provided that a requisitioned portion would stand automatically derequisitioned after expiry of a period of five years from the date of coming into force of the West Bengal Premises Requisition & Control (Temporary Provisions) Second Amendment Act, 1947. According to the plaintiff the requisitioned portion of the said premises stood automatically released from requisition with effect from April 1, 1992 by virtue of Section 10B.

The Defendant No. 1 requested the plaintiff by several letters to receive vacant possession of the suit premises. The Defendant No. 2 failed and neglected to make over possession thereof. The Defendant No. 2 continued to remain in possession. The plaintiff, thereafter, approached this Hon’ble Court under Article 226 of the Constitution of India by way of a writ petition being W.P. No. 1086 of 1999. Such writ petition was disposed of by an Order dated August 18, 1999. The First Land Acquisition Collector, Calcutta was directed to make over possession of the suit premises after evicting the occupiers therefrom as expeditiously as possible and to assess the rent compensation in respect of the suit premises for the period under requisition by the Order dated August 18, 1999.

The period of six months fixed by the Order dated August 18, 1999 expired on February 17, 1999. Possession was not made over to the plaintiff. The plaintiff after issuing a notice under Section 80 of the Code of Civil Procedure, 1908 dated August 31, 2000 filed the instant suit. In the instant suit the plaintiff sought compensation at the rate of Rs. 2,000/- per day on and from April 1, 1992 till August 31, 2000 and mesne profit at the rate of Rs. 3,000/- per day from September 1, 2000 till receipt of possession.

During the pendency of the instant suit acquisition proceedings were initiated. Such acquisition proceedings were quashed by an Order dated July 11, 2002 passed in W.P. No. 999 of 2001. An appeal carried against the Order dated July 11, 2002 was dismissed on April 13, 2006. The plaintiff received possession of the suit property on December 15, 2006.

The suit was contested primarily by the Defendant No. 2. The Defendant No. 2 used and occupied the suit premises. In its written statement Defendant No. 2 claimed that the suit premises was required for a public purpose. It ran a post-office from the suit premises. There was no other suitable accommodation available to the Defendant No. 2 to shift the post-office operating from the suit premises.

Issues with regard to the instant suit were framed on October 11, 2007. Such issues were as follows:-

(1) Is the maintainable in its present form?

(2) Was there any cause of action to file the suit by the plaintiff?

(3) Is the suit barred by limitation or any other provision of law?

(4) Whether the defendants were in wrongful and illegal possession of the suit property since April 1992?

(5) Is the plaintiff entitled to claim mesne profit as claimed in para 11 of the plaint till 31st August, 2000?

(6) Is the plaintiff entitled to a mesne profit at the rate of 3000 per day from 1st September, 2000 till 15th December, 2006 that is the date on which the defendants vacated the suit premises?

(7) Is the plaintiff entitled to the decree as prayed for?

(8) To what other relief or reliefs, if any, is the plaintiff entitled?

Additional issue was framed on February 4, 2009. The additional issue related to whether the reliefs sought for the plaintiff was barred by the principles of res judicata or not.

The plaintiff produced two witnesses who were also cross-examined.

Mr. Ajoy Krishna Chatterjee, learned Senior Advocate for the plaintiff addressed the issue of res judicata first. According to him the reliefs sought for by the plaintiff in the suit were not barred by the principles of res judicata. The Order dated August 18, 1999 marked as Exhibit ‘N’ was passed in W.P. No. 1086 of 1999 which was Exhibit ‘O’. He relied on various paragraphs of the writ petition as also the prayers sought for in the writ petition being Exhibit ‘O’. He submitted that, by the Order dated August 18, 1999 which was Exhibit ‘N’, this Hon’ble Court directed the First Land Acquisition Collector, Calcutta to make over possession of the suit premises to the plaintiffs, after evicting the occupiers therefrom, as expeditiously as possible, preferably within a period of three months from the date of communication of the order, provided that there was no further order of requisition, nor any contemplation for acquisition of the suit premises under the relevant provisions of law. The Order dated August 18, 1999 being Exhibit ‘N’ directed that the rent compensation in respect of the suit premises for the period under requisition would be determined, by the concerned authority, expeditiously, if not determined, in the meantime and upon such determination, to pay such determined amount, to the plaintiff immediately thereafter.

He contended that, the instant suit was not for possession. Since the instant suit was not for possession, the first part of the Order dated August 18, 1999 being Exhibit ‘N’ relating to possession had no role to play. The portion of the Order dated August 18, 1999 Exhibit ‘N’ relating to rent compensation would not defeat the relief claimed in the instant suit on the principles of res judicata. Such order directed, rent compensation to be determined for the period under requisition and payment thereof. The period of claim in the instant suit was subsequent to the period of requisition. The valid requisition of the suit premises expired on March 31, 1992. The claim for compensation, in the instant suit, was from April 1, 1992 till August 31, 2000 at the rate of Rs. 2,000/- per day and for the period from September 1, 2000 till vacant possession at the rate of Rs. 3,000/-per day. Moreover, no rent compensation was paid by the defendant for the period of time claimed in the suit.

He submitted that, the prayers and the pleadings in writ petition being Exhibit ‘O’, did not take away the right of the plaintiff to seek compensation, as done by way of the present suit, on the principles of res judicata. He relied on Section 11 of the Code of Civil Procedure, 1908 and Explanation V thereof. He submitted that compensation as claimed in the instant suit, was not directly and substantially in issue in the writ petition being Exhibit ‘O’. The issue of compensation was raised collaterally and incidentally in any event, such compensation was not adjudicated upon finally. He relied on AIR 1968 Patna page 117 (Management of Vihar Talkies, Jharia v. Presiding Officer, Industrial Tribunal & Anr.), 2000 Volume 3 Supreme Court Cases page 350 (Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer & Ors.) and AIR 1929 Calcutta page 566 (Bipul Behari Chakravarty v. Nikhil Chandra Chakravarty & Ors.) on the issue of res judicata.

He then took up the issue of limitation. He submitted that the claim was for the period from April 1, 1992 till August 31, 2000 at the rate of Rs. 2,000/- per day and from September 1, 2000 till December 15, 2006 being the date when the plaintiff received actual physical possession of the suit premises at the rate of Rs. 3,000/- per day. The suit was filed on December 1, 2000. In support of his contention that, the claim of the plaintiff was not barred by the laws of limitation, he submitted that the plaintiff received possession on December 15, 2006, which was subsequent to filing of the suit. The plaintiff had a joint right to receive possession and to receive compensation for the period during which the Defendant No. 2 was in wrongful occupation of the suit premises. He submitted that, after March 31, 1992, the possession of the defendant was wrongful. The defendants being in wrongful possession till December 15, 2006, the defendants were obliged to compensate the plaintiff for such period, at the rates claimed. He submitted that, there was no justification in splitting up the cause of action of the plaintiff to receive possession and compensation. Viewed from the perspective that the plaintiff received possession only in December 15, 2006 much after the filing of the suit, no portion of the relief claimed by the plaintiff could be contended to be barred by the laws of limitation.

He relied on 2011 Volume 2 Supreme Court Cases 682 (Hari Ram v. Jyoti Prasad & Anr.) as well as AIR 1959 Supreme Court page 798 (Balakrishna Sevalram Pujari Waghmare & Ors. v. Shree Dhyaneshwar Maharaj Sansthan & Ors.) on the issue of limitation.

On the issue of mesne profit and its quantum Mr. Chatterjee submitted that two witnesses were examined on behalf of the plaintiff. Both the witnesses were cross-examined by the Defendant No. 2. One of the witnesses was a valuer. The valuer proved his report. The report of the valuer disclosed the methodology adopted by the valuer. Such method of valuation remained unchallenged. At least there was no evidence to the contrary of the valuer’s report. The valuation report was just and reasonable. He submitted that the valuer submitted his report on the basis of lease deeds and the terms of lease governing leases at the adjoining area. The report of the valuer was Exhibit ‘M’. He submitted that there were nine relevant questions in cross-examination and he placed them.

Mr. Parthosarathi Bose, learned Senior Advocate, for the Defendant No. 2 contended that the pleadings at Exhibit ‘O’ being W.P. No. 1086 of 1999 and the relief prayed for therein read with the Order dated August 18, 1999 being Exhibit ‘N’ left no manner of doubt that the claim of the plaintiff was barred by the principles of res judicata. He relied on Section 11 of the Code of Civil Procedure and Explanation III, IV and V thereof. He submitted that prayer b(i) of the writ petition being Exhibit ‘O’ was not granted by the Order dated August 18, 1999. Prayer b(i) of Exhibit ‘O’ was compensation for the alleged wrongful possession of the suit premises by the Defendant No. 2. Such relief not being granted by the Order dated August 18, 1999 the plaintiff was not entitled to include such relief in the instant suit. He contended that the reliefs sought for by the plaintiff in the instant suit were barred under Explanation III, IV and V of Section 11 of the Code of Civil Procedure, 1908. He distinguished AIR 1968 Patna page117 (Management of Vihar Talkies, Jharia v. Presiding Officer, Industrial Tribunal & Anr.) by submitting that the Patna High Court was concerned with a discretionary relief which was not the case in the instant suit. He distinguished 2000 Volume 3 Supreme Court Cases page 350 (Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer & Ors.) by submitting that the Supreme Court found that there was a change of law in the facts of the case which did not warrant the applicability of the principles of res judicata. Such was not the case in the instant suit. There was no change in law. Similar circumstances obtained in AIR 1929 Calcutta page 566 (Bipul Behari Chakravarty v. Nikhil Chandra Chakravarty & Ors.) where there was a change of law.

Mr. Bose relied on 2007 Volume 8 Supreme Court Case page 329 (Saroja v. Chinnusamy & Anr.) on the principles of res judicata. He relied on AIR 1998 Supreme Court page 2046 (Ashok Kumar Srivastav v. National Insurance Co. Ltd. & Ors.) for the proposition that principles of res judicata were applied to a suit filed after an earlier writ petition was disposed of.

On the issue of limitation Mr. Bose contended that the instant suit was governed by Article 91 and Article 113 of the Limitation Act, 1963. He relied on Section 23 of the Limitation Act, 1963 and submitted that the plaintiff was entitled to claim three years compensation and no more.

He submitted that prayer (a) of the plaint was barred by the principles of res judicata. So far as prayer (b) of the plaint be concerned the same was barred by limitation. According to him the plaintiff did not have a continuing right to seek compensation.

The claim of the plaintiff was sought to be assailed on the ground of principles of res judicata. Both parties made submissions on Section 11 and Explanation III, IV and V thereof. Various authorities were cited on behalf of the parties.

In Saroja (Supra) the Supreme Court laid down six conditions which were required to be satisfied for the purpose of attracting Section 11 of the Code of Civil Procedure, 1908. These six conditions were:-

(i) There must be two suits – one former suit and the other subsequent suit;

(ii) The Court which decided the former suit must be competent to try the subsequent suit;

(iii) The matter directly and substantially in issue must be the same either actually or constructively in both the suits;

(iv) The matter directly and substantially in issue in the subsequent suit must be heard and finally decided by the Court in the former suit;

(v) The parties to the suits or the parties under whom they or any of them claim must be the same in both the suits; it was not necessary that all the parties to the two litigations must be common; all that was necessary was that the issue should be between the same parties or between the parties under whom they or any of them claimed;

(vi) The parties in both the suits litigated under the same title.

There were two proceedings which required consideration. The first proceeding being the writ petition which was Exhibit ‘O’ and the second being the suit herein. The first ingredient was satisfied.

It was nobody’s case that the Court hearing W.P. No. 1086 of 1999 in which the Order dated August 18, 1999 was passed did not have jurisdiction. The second ingredient, therefore, stood satisfied.

Exhibit ‘O’ was a copy of the writ petition in W.P. No. 1086 of 1999. In paragraph 20 of the writ petition the plaintiff claimed that the defendants were in wrongful possession of the suit premises since April 1, 1992 and sought compensation at the rate of Rs. 2,000/- per day. The claim at the rate of Rs. 2,000/- per day was made up to April 30, 1999 as would appear from paragraph 22 of the writ petition being Exhibit ‘O’. The alternative prayer in paragraph 23 of the writ petition being Exhibit ‘O’ was assessment of reasonable compensation for the period subsequent to April 1, 1992 and payment of such assessed compensation to the plaintiff.

In the present suit, the plaintiff claimed compensation at the rate of Rs. 2,000/- per day for the period from April 1, 1992 till August 31, 2000. The period claimed in the plaint was slightly more than the eriod claimed in the writ petition being Exhibit ‘O’.

Therefore, it could be safely inferred that compensation as claimed by the plaintiff in the instant suit for the period from April 1, 1992 to April 30, 1999 was in issue in W.P. No. 1086 of 1999 being Exhibit ‘O’. The third ingredient was also satisfied.

The parties differed in the question whether such issue was raised directly and substantially or collaterally and incidentally in the writ petition or not.

In Sajjadanashin Sayed Md. (Supra) the Supreme Court considered the meaning of the words 'collaterally or incidentally in issue'. The Supreme Court noted that Section 11 of the CPC used 'directly and substantially in issue'. It explained that a collateral or incidental issue was one that was ancillary to a direct and substantive issue; the former was an auxiliary issue and the latter the principal issue. The Supreme Court referring to Mulla’s Civil Procedure Code, 15th edition was of the view that the expression 'collaterally or incidentally' in issue implied that there was another matter which was 'directly and substantially' in issue. The Supreme Court addressed the difficulty in distinguishing whether a matter was directly in issue or collaterally in issue or incidentally in issue. It adverted to various case laws and authors cited before it. So far India was concerned the Supreme Court was of the view that the summary in Mulla’s Civil Procedure Code, 15th edition page 104 was a correct statement of law. A passage of Mulla’s Civil Procedure Code, 15th edition page 104 was quoted in the Supreme Court report. In Sajjadanashin Sayed Md. (Supra) the Supreme Court was of the view that a matter in respect of which relief was claimed in an earlier suit could be said to be generally a matter 'directly and substantially' in issue, but, it did not mean that, if the matter was one in respect of which no relief was sought, it was not directly and substantially in issue. It may or may not be so. It was possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question would be, what was the test for deciding into which category a case falls? One test was that if the issue was 'necessary' to be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it was clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue.

It was urged on behalf of the plaintiff that prayer b(i) made in W.P. No. 1086 of 1999 was not directly and substantially in issue in such writ proceedings. Reliance was placed on paragraph 18 of Sajjadanashin Sayed Md. (Supra). It was submitted that prayer b(i) of the writ petition was not necessary for adjudicating the principal issue of eviction. With all due respect to Mr. Chatterjee, I could not agree with such contention. The plaintiff agitated two claims before the Writ Court. One was for recovery of possession and the other compensation for wrongful occupation from the defendants. Both the limbs or claims were raised by the plaintiff directly and substantially.

The two rights canvassed by the plaintiff were distinct. The plaintiff in W.P. no 1086 of 1999 prayed for vacant and peaceful possession of the suit premises in prayer (a) and in prayer b(i) prayed for compensation. The plaintiff was entitled to seek compensation for alleged wrongful occupation without seeking relief with regard to possession in the earlier writ petition. In fact, the plaintiff in this suit sought relief with regard to compensation for wrongful occupation although the plaintiff did not receive possession of the suit premises when the plaintiff filed the suit. The right to receive compensation was not depended upon eviction of the defendants from the suit premises.

It was contended by Mr. Chatterjee that the relief with regard to compensation or prayer b(i) at Exhibit ‘O’ was depended upon the result of prayer (a) at Exhibit ‘O’. The plaintiff was entitled to and could receive compensation for wrongful occupation by the defendants without seeking eviction of the defendants. In fact, it was such a course of action which the plaintiff embarked upon in the suit. The plaintiff by its own conduct established that the right to receive possession and the right to receive compensation for a wrongful occupation were distinct. The plaintiff canvassed such right in his pleadings. It would be not proper for me to accept the contention of the plaintiff that the right to receive compensation was depended upon the right to obtain eviction of the defendants from the suit premises. The contention of the plaintiff in this regard, that, there would be no justification in dissecting two causes of action, in my opinion, was contrary to the pleadings and conduct of the plaintiff.

The next ingredient of res judicata in terms of Saroja (Supra) was whether the issue of compensation was finally decided. The Order dated August 18, 1999 directed the concerned authority to determine the rent compensation in respect of the suit premises for the period under requisition. The claim in the instant suit was not for the period under requisition. It was not the case of the defendants that the plaintiff received any compensation for the period for which the plaintiff was claiming in the instant suit. Therefore, the issue of compensation was not finally decided by the Order dated August 18, 1999. This ingredient was not satisfied.

The next two ingredients of Section 11 in terms of Saroja (Supra) were also satisfied. The plaintiff and the defendants were parties to W.P. No. 1086 of 1999 and were litigating under the same title.

Mr. Bose submitted that reading Explanation III, IV, V of Section 11 of the Code of Civil Procedure, 1908 and particularly Explanation V which specified that any relief claimed which was not expressly granted shall for the purposes of Section 11 of the Code be deemed to be refused. He submitted that in terms of Explanation III and IV of the Code the parties were at issue with regard to the compensation as prayed for in the plaint in the prior writ petition. The petitioner in W.P. No. 1086 of 1999 alleged and claimed compensation for the period commencing April 1, 1992.

On a reading of the Order dated August 18, 1999 being Exhibit ‘O’ and the writ petition being Exhibit ‘N’ I am of the view that, although the plaintiff did claim compensation for the period commencing April 1, 1992 in W.P. No. 1086 of 1999, and although reading Explanation III, IV, V the non-grant of such compensation could attract the principles of res judicata to deny the claim of the plaintiff, but since the issue was not decided finally by the Order dated August 18, 1999, the claim of the plaintiff made in the suit was not barred by the principles of res judicata.

The rent compensation was not decided in W.P. No. 1086 of 1999. By the Order dated August 18, 1999 the Writ Court directed the concerned authority to determine the rent compensation as expeditiously as possible. The rent compensation was never determined by any authority. It could not be contended that the Order dated August 18, 1999 did not grant the relief of rent compensation and as such the claim on this account was barred by the principles of res judicata on the touch stone of Explanations III, IV, V of Section 11 of the Code Civil Procedure, 1908.

In Management of Vihar Talkies, Jharia (Supra) the Division Bench of the Patna High Court considered an application under Article 226 and 227 of the Constitution of India seeking quashing of orders passed by the authorities under the Bihar Shops and Establishments Act, 1953. The subject matter of challenge before the Patna High Court was an order passed by the Assistant Labour Commissioner ordering payment of specified sum to two employees as also the order of the Appellate Authority which affirmed the original order. It was contended before the Patna High Court that, since the two employees filed two earlier applications complaining of their dismissal and seeking full backwages which such applications were allowed in part by the Order dated July 10, 1961 not granting the backwages, the claim of the employees in the subsequent proceedings for the backwages for such period, was barred under the principles of res judicata. Such contention was negated by the Patna High Court. In the facts of that case the Division Bench of the Patna High Court found that Explanation V of Section 11 of the Code of Civil Procedure, 1908 could not be invoked.

In Bipul Behari Chakravarty (Supra) this Hon’ble Court held that there was no bar to a suit for future mesne profit which was claimed in a previous suit between the parties, but in regard to which the decree was silent, the mesne profits being for a period subsequent to the institution of the first suit.

In Ashok Kumar Srivastav (Supra) the Supreme Court held that a decision on an issue raised in a writ petition under Article 226 or Article 32 of the Constitution would operate a res judicata between the same parties in subsequent judicial proceedings. The only exception was that the rule of res judicata would not operate to the detriment or impairment of a fundamental right.

All ingredients of Section 11 of the Code of Civil Procedure, 1908 in terms of Saroja (Supra) were not satisfied in the facts of this case. The claim of the plaintiff, therefore, was not barred by the principles of res judicata.

On the issue of limitation Mr. Chatterjee for the plaintiff contended that the plaintiff’s right to receive possession was continuing on the date when the suit was filed. The right to receive possession entailed with it, according to him, the right to receive compensation. Both the causes of action, according to him, ought not to be dissected by the Court.

The contention of Mr. Chatterjee could not be accepted in the facts of this case. The plaintiff itself split its so-called joint cause of action. The plaintiff sought money claim only in the suit without claiming possession. The plaintiff received possession without recourse to the present suit. When the plaintiff itself split the cause of action it would not be proper to permit the plaintiff to contend that the cause of action of the plaintiff to receive possession and compensation were joint. The conduct of the plaintiff demolished such contention.

Various Sections and Articles of the Limitation Act, 1963 were relied upon by both the sides. Mr. Chatterjee relied upon Section 22 of the Limitation Act while Mr. Bose on Section 23 of the Limitation Act, 1963 to submit that the case of the plaintiff came within the purview of the section respectively relied upon.

So far as the claim for compensation went, the plaintiff was entitled to compensation for a period of 3 years prior to the date of the filing of the suit. The suit was filed on December 1, 2000. Therefore, the plaintiff was entitled to compensation on and from December 1, 1997 being 3 years prior to the date of the filing of the suit.

Mr. Chatterjee relied on Hari Ram (Supra) and Balakrishna Sevalram Pujari (Supra) on the issue of limitation. In Hari Ram (Supra) the Supreme Court was concerned with a suit in which a defendant encroached upon a street. This encroachment was found by the Supreme Court to be a continuing breach in terms of Section 22 of the Limitation Act, 1963. The suit was for a declaration that the plaintiffs had common interest in the disputed street along with co-inhabitants of the same area. No money claim was involved. The contention of limitation in such context was negated by the Supreme Court. The facts of the Supreme Court Case were different to the one obtaining here. Moreover, the right to receive money compensation of the plaintiff was distinct to that of its right to evict the defendants from the suit property.

In Balakrishna Sevalram Pujari (Supra) the Supreme Court was concerned with disputes between the worshipers who claimed hereditary rights and the trustees of Shree Dnyaneshwar Maharaj Sansthan, Alandi. Some of the hereditary worshipers were dismissed by the trustees. The hereditary worshipers asserted that they were the owners of the shrine and that the trustees did not have authority or power to dismiss them. Few suits were filed. Question of limitation came up for consideration in the suits. In the facts of the case the Supreme Court was of the view that for Article 124 of the Limitation Act, 1908 to apply it must be shown that the claim was for possession of an office which was hereditary and that the defendant took possession of the hereditary office adversely to the plaintiff. Unlike Article 142 the fact that the plaintiff was out of the possession of the hereditary office for more than 12 years between the dates of his suit would not defeat his claim for possession of the said office. What would defeat his claim was the adverse possession of the defendant for the prescribed period. On facts it was found that the right to sue accrued to the persons claiming hereditary right on November 4, 1922. The suit was filed long after the expiry of six years from 1992 and was, therefore, barred under Article 120 of the imitation Act, 1908. Article 120 of the Limitation Act, 1908 prescribed that a suit for which no period of limitation was provided elsewhere in the schedule was six years from the date when the right to sue accrued.

Mr. Bose relying on this judgment submitted that the right to sue for damages accrued to the plaintiff on April 1, 1992. The instant suit was filed in 2000. The claim of the plaintiff according to Mr. Bose was, therefore, barred by limitation applying Section 23 of the Limitation Act, 1963 and Article 91. He submitted that if Article 91 was not attracted then at least Article 113 was attracted. In either situation the prescribed period of limitation was three years.

Mr. Chatterjee referred to Article 52 of the Limitation Act, 1963. Article 52 of the Limitation Act, 1963 was in respect of arrears of rent. He submitted that the claim was not for arrears of rent. Therefore, Article 52 by his own submission was not attracted. No other Article was relied upon by Mr. Chatterjee. He relied upon Section 22 and Section 2(m) of the Limitation Act, 1963. Section 2(m) of the Limitation Act, 1963 defined 'tort'. Section 22 of the Limitation Act, 1963 specified that in the case of a continuing breach of a contract or in the case of a continuing tort, a fresh period of limitation began to run at every moment of time during which the breach or the tort as to the case may be continued. He submitted that since possession of the suit premises was made over only on December 15, 2006 no part of the claim of the plaintiff was barred by the limitation when the suit was filed much prior thereto in 2000. He submitted that in terms of Section 22 of the Limitation Act, 1963 the plaintiff was entitled to file the suit during the period when the tort continued. In this case the tort of wrongful possession continued till December 5, 2006. Coupled with this fact, he submitted that, there was no justification in splitting the cause of action to receive possession and compensation.

The instant suit was filed on December 1, 2000. The plaintiff was entitled to compensation for a period of three years prior to the suit which would be from December 1, 1997. The plaintiff was entitled to compensation from the date of the suit till it received possession on December 15, 2006. The defendants were in wrongful possession from April 1, 1992 till December 15, 2006 when the defendants vacated suit premises. The plaintiff was, therefore, liable to compensate the plaintiff for the entire period subject to the laws of limitation. Appling the laws of limitation the plaintiff was entitled to compensation on and from December 1, 1997 being three years prior to the date of filing to the suit till December 15, 2006 being the date of receipt of possession by the plaintiff.

The issue that remained was the quantum of compensation to be paid for this period to the plaintiff. Plaintiff submitted a valuation report which was Exhibit ‘M’. There was no other evidence to contradict the valuation report. The valuer disclosed his meth

Please Login To View The Full Judgment!

odology. The valuer was examined and cross-examined. From the deposition nothing contradictory to the valuation report was established. I, therefore, accept the valuation report of the valuer. The basis of the valuation report was also disclosed. The lease deeds forming the basis of the valuation report was also marked as Exhibits. So far as the valuation report and quantum of compensation concerned Mr. Bose did not advance any submission in that regard. The valuer in its report considered five periods, namely, April 1, 1992, April 1, 1996, April 1, 2000, April 1, 2004 and December 2006. To arrive at the fair rental value the valuer applied a formula which was disclosed in its report. By such methodology the valuer specified the rental value for the different periods. In the instant suit the plaintiff was entitled to rent compensation from December 1, 1997 till December 15, 2006. According to the valuation report the rent for such period was Rs. 60.05 square feet per month, such rate continuing till March 31, 2000 according to the valuer. The plaintiff would, therefore, be entitled to compensation at the rate of Rs. 60.05 per square feet per month with effect from December 1, 1997 till March 31, 2000. For the period from April 1, 2000 from March 31, 2004 the valuer specified Rs. 79.93/- per square feet. The plaintiff would, therefore be entitled to compensation at such rate for such period. For the period from April 1, 2004 till December 2006 the valuer specified rate of Rs. 94.50/- per square feet per month. The plaintiff would be entitled to compensation at such rate for such period. The valuer found rent to be at the rate of Rs. 102.18/- was per square feet as on December, 2006. The plaintiff received possession on December 5, 2006. Therefore, for these fifteen days the plaintiff would be entitled to receive rent compensation at the rate of Rs. 102.18/- per square feet per month. The plaintiff claimed interest at the rate of 18% per annum. No doubt the nature of transaction between the parties was commercial. The Defendant No. 2 was in wrongful occupation of the suit premises till it vacated. The Defendant No. 2 would, therefore, be liable to pay interest at the rate of 12% per annum on and from December 1, 1997 till March 31, 2000 on the sum decreed for this period. The plaintiff would be entitled to interest at the rate of 12% per annum on and from April 1, 2000 till March 31, 2004 on the sum decreed for this period. The plaintiff would, similarly, be entitled to interest at the rate of 12% per annum on the sum decreed for the period April 1, 2004 till December 15, 2006. The plaintiff would be entitled to interest at the rate of 12% per annum on the sum decreed for the period April 1, 2004 till December 15, 2006 until realization of its entire claim from the defendant. The rate of 12% was awarded as interest since the nature of transaction between the parties was commercial and with no evidence on record as to the commercial rate of interest prevailing during the period of time under contemplation. The Defendant No. 1 was the requisitioning authority. It did not enjoy the suit properly. It requisitioned the suit property at the instance of the Defendant No. 2. The Defendant No. 2 failed to vacate in spite of requests to make over possession to the plaintiff. The suit is, therefore, dismissed against the Defendant No. 1 and decreed against the Defendant No. 2. The suit is decreed accordingly. There will be no order as to costs. The department is directed to draw up the decree as expeditiously as possible.
O R