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



Jiten Das & Others v/s Matiary Vivekananda Shikshalay & Another


Company & Directors' Information:- G DAS & CO PVT LTD [Active] CIN = U74992WB1935PTC008299

Company & Directors' Information:- DAS & CO PVT LTD [Strike Off] CIN = U72100AS1946PTC000740

Company & Directors' Information:- K C DAS PVT LTD [Active] CIN = U15433WB1946PTC013592

Company & Directors' Information:- D K DAS & CO PVT LTD [Active] CIN = U51909WB1938PTC009288

Company & Directors' Information:- U C DAS & CO PVT LTD [Active] CIN = U31200WB1987PTC042709

Company & Directors' Information:- DAS & DAS PVT LTD [Strike Off] CIN = U51109WB1950PTC019222

Company & Directors' Information:- A S DAS CO PVT LTD [Strike Off] CIN = U51109WB1957PTC023552

Company & Directors' Information:- DAS-G INDIA PRIVATE LIMITED [Active] CIN = U24304DL2020PTC370609

Company & Directors' Information:- P K DAS & CO PVT LTD [Strike Off] CIN = U74210WB1955PTC022259

    C.O. No. 1318 of 2019

    Decided On, 17 June 2020

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE BISWAJIT BASU

    For the petitioners: Biswrup Biswas, Sayantan Hazra, Advocates. For the Opposite Parties: D.S Mullick, Dipak Das, Advocates.



Judgment Text


1. The revisional application under Article 227 of the Constitution of India is at the instance of the defendants in a suit for permanent injunction being Title Suit No. 33 of 2017 pending before the Additional Court of learned Civil Judge (Junior Division), Krishnanagar, District - Nadia and is directed against the Order No. 26 dated March 12, 2019.

2. The petitioners in the said suit by way of counter-claim inter alia have prayed for a decree of eviction of the opposite parties from the suit property, describing them as gratuitous licensees under them.

3. The petitioners have valued their said relief of counter-claim at Rs. 5000/-(Rupees Five Thousand only), the plaintiffs/opposite parties disputing the said value filed an application praying assessment of actual valuation of the said counter-claim and determination of the pecuniary jurisdiction of the learned Trial Judge to entertain such counter-claim.

4. The learned Trial judge held an inquiry in terms of Section 11 of the West Bengal Court-fees Act of 1970(hereinafter referred to as 'the said Act of 1970' in short) and by the order impugned has revised the valuation of the said counter-claim at Rs. 16,23,857/- (Rupees Sixteen Lakh Twenty Three Thousand Eight Hundred Fifty Seven). The learned Trial Judge relied on the decision of the learned Single Judge of this Court in the case of Shambhu Nath Singh and Ors. v. Shankarananda Banerjee reported in 1981 (1) Calcutta Law Journal 316 to hold that in the instant case, there is an objective standard of valuation as in paragraph 10 of the written statement-cum-counter-claim, the defendants have claimed that they have purchased the suit property along some non-suit property at a total price of Rs. 37,89,000/-(Rupees thirty seven lakh eighty nine thousand only). Thus, based on the said objective standard the learned Trial Judge assessed the value of the said counter-claim at the aforesaid rate and returned the said counter-claim to the petitioner to be filed as a separate suit in the appropriate Court having jurisdiction.

5. Mr. Biswarup Biswas learned advocate appearing on behalf of the petitioners submits that the opposite parties are licensees under the petitioners without license fees as such the petitioners are entitled to value their relief of recovery of possession of the suit property from the opposite parties in terms of Section 7(vi)(b)(ii) of the said Act of 1970 and they have accordingly valued their said relief at Rs. 5000/- (Rupees Five Thousand). The value of the said relief so put in by the petitioners cannot be revised on the basis of the market value of the suit property. Mr. Biswas to fortify his said argument places reliance upon the decision of the Hon'ble Division Bench of this Court in the case of CHANDI CHARAN DAS v. SMT. SUSHILA BALA DASI reported in AIR 1955 Calcutta 144 and the decision of the learned Single Judge of this Court in the case of MAN MOHAN KHEMKA v. DR. KAILASH KUMAR SHARMA reported in 1984 (1) Calcutta High Court Notes 121.

6. Mr. Durga Shankar Mallick learned advocate appearing on behalf of the opposite parties on the other hand strongly places reliance on the case of Shambhu Nath Singh's case (supra) to contend that the disclosed value of the suit property is the only available objective standard to ascertain the correct valuation of the relief of the said counter-claim as such, the learned Trial Judge has rightly revised the said valuation on the basis of the said market value of the suit property. Mr. Mallick to give further strength to his said submission places reliance on the judgment of the Hon'ble Division Bench of this Court in the case of TARAI TEA Co. Pvt. Ltd. v. Life Insurance Corporation of India & Ors. reported in AIR1979 Calcutta 84 and the two other decisions of the learned Single Judges of this Court in the case of Smt. Nilima Bose v. Santosh Kumar Ghosh reported in AIR 1997 Calcutta 202 and in the case of Rampuria Industries and Investments Ltd. v. Nellimarla Jute Mills Co. Ltd. reported in AIR 1997 Calcutta 366. Mr. Mallick thereafter by referring the decision of the Hon'ble Supreme Court in the case of Jai Singh and Others v. Municipal Corporation of Delhi reported in (2010) 9 Supreme Court Cases 385 contends that the learned Trial Judge since has not committed any jurisdictional error in revising the value of the said counter-claim the order impugned is not open to challenge under Article 227 of the Constitution of India.

Heard learned advocate for the parties, perused the materials-on- record.

7. The Court no doubt has the power under Section 11 of the said Act of 1970 to revise the valuation of the subject-matter of any suit if it is of the opinion that such subject-matter has been wrongly valued and to determine the correct valuation thereof may hold such inquiry as it thinks fit and proper, but the instant revisional application raises an issue, whether the Court while holding such inquiry in respect of a suit for eviction of a gratuitous licensee can revise the value of the relief put in by the plaintiff only on the basis of the value of the suit property and to address the said issue properly the evolution of the law governing the field needs to be looked into.

8. The said Act of 1970 is a special statute brought into force by the state legislature for the purpose of amending and consolidating the law relating to levy of Court-fees within the State of West Bengal. The Court-fees Act 1870 is a central statute which used to govern the field prior to the said Act of 1970 came into force. There were divergent views amongst the Hon'ble Judges of this Court on the issue what is the proper valuation of a suit for ejectment of licensee for the purpose of court fees and jurisdiction. A Special Bench was constituted to resolve the said issue. The Special Bench in the case of Sisir Kumar Dutta & Ors. V. Sushil Kumar Dutta reported in AIR 1961 Cal 229 answered the said issue holding that if a licensee, whose license stands revoked, becomes a trespasser, then a suit for eviction of such a person undoubtedly would be a suit for possession of land, house or garden and must be valued according to the value of the subject-matter under S.7(v) of the Court-fees Act of 1870.

9. The said Special Bench in spite of such a conclusion at paragraph 48 of the aforesaid report observed as follows:-

"48. The view which I take must operate harshly on those who may seek eviction of licensees, on determination of their licences. While a landlord who seeks to evict a tenant, on determination of tenancy, has to pay a lesser amount of Court-fee, calculated on the basis of S. 7(xi)(cc), an owner shall be required to pay more and larger amount of court-fees, under S.7(v)(a) of the Court-fees Act, if he wants to evict a licensee, .........

..................But I am unable to give such relief against such hardship. Law is an objective thing and there it stands, whether it entails any hardship or does not."

10. The Court-fees Act, 1870 in its application to the State of West Bengal in respect of a suit for eviction of licensee was amended by the state legislature vide the Court Fees (West Bengal Amendment) Act, 1963. It will appear from the object of the said amendment Act that such an amendment in the said Act was necessitated due to the aforementioned observations of the said Special Bench. The said object of the said amendment Act is quoted below for ready reference:-

"Object- It has been held by a Special Bench of the High Court at Calcutta in a recent case that while an owner wanting to evict a licensee in respect of immovable property has to pay a larger amount of court fees on the basis of the value of the property under Section 7(v) of the Court-fees Act, a landlord wanting to evict a tenant has to pay a smaller amount of court-fees, on the basis of the annual rent payable for the year next proceeding the suit under Section 7(xi) of the Act. In order to remove this anomaly, it is proposed to amend the Act so as to enable the owner in a suit against a licensee to pay court fees according to the amount of license fee, or according to the amount at which the relief sought for is valued, when no license fee is payable."

11. Section 7 of the Court-fees Act, 1870 in its application to the State of West Bengal was amended by Section 3 of the aforesaid amendment Act which runs as follows:-

"3. Amendment of section 7 of the Act 7 of 1870.-In Section 7 of the said Act,-

(1) in clause v, after the words "In suits for possession of land, buildings or gardens". the words "not being suits referred to in clause vA" shall be inserted;

(2) after clause v, the following clause shall be inserted, namely:-vA. In a suit for recovery of possession of immovable property from-

(a) a trespasser, where no declaration of title to the property is either prayed for or necessary for disposal of the suit,- according to the amount at which the relief sought is valued in the plaint subject to the provisions of Section 8C;

(b) a license upon revocation or termination of his license,-

(i) where a license fee is payable by the licensee in respect of the immovable property to which the suit refers, according to the amount of the license fee of the immovable property payable for the year next before the date of presenting the plaint, or

(ii) where no such license fee is payable by the licensee, according to the amount at which the relief sought is valued in the plaint subject to the provisions of Section 8C;"

12. A Division Bench of this Court in the case of Amritalal Chatterjee v. Hiralal Chatterjee and anr. reported in 70 CWN 857 had the occasion to consider the issue in the light of the aforementioned amendment of the Court-fees Act, 1870. The said Division Bench held that in view of such amendment of the said Act the decision of the Hon'ble Division Bench reported in AIR 1961 Calcutta 229 (supra) is no longer a good law and observed further that in evaluating the relief in a suit for eviction of a licensee without license fees subjective and objective both elements are there. In other words this valuation is not a wholly subjective valuation in the sense that the plaintiff can put an arbitrary or whimsical valuation but the amendment was obviously intended, both expressly and by necessary implication of the language used in the Amendment Act to make it clear that an owner wanting to evict a licensee should not be put into a position where he has to pay either the same or even a larger amount of Court fees than a landlord wanting to evict a tenant. That overriding purpose of the Amending Act, therefore, has to be respected and that is grant of relief to a person evicting a licensee on the ground of revocation or termination of his license that relief should not be rendered illusory by any construction or interpretation introducing value of the "property" or "subject-matter" and ignoring the value of "relief sought" which was the only object of the amendment.(emphasis supplied by me)

13. The Court-fees Act, 1870 in its application in the State of West Bengal was repealed by the said Act of 1970 but the provision for computation of fees payable in respect of a suit for recovery of possession of immovable property from a licensee upon revocation or termination of his license remains same which is now Section 7(vi)(b) of the said Act of 1970. Therefore, the aforesaid observations of the Hon'ble Division Bench in the Amrita Lal Case (supra) are still relevant and this Court keeping in view of such observation of the said Hon'ble Division Bench is unable to hold that the market value of the suit property is the only objective standard to revise the valuation of the relief of the said counter-claim.

14. Let me now consider the decisions relied on by Mr. Mallick. The decision of Sambhunath Singh case (supra) which the learned Trial Judge followed hook, line and sinker is a case arising out of a suit eviction of a trespasser, a different class of suit altogether, the other two decisions relied on by Mr. Mallick reported in AIR 1997 Calcutta 202 (supra) and AIR 1997 Calcutta 366 (supra) are also arising out of suits for recovery of possession from trespasser as such those decisions have no relevance to the present issue. The decision relied on by Mr. Mallick reported in AIR 1979 Calcutta 84 (supra) is arising out of a suit for declaration and consequential relief, therefore, the said decision is also no pointer to the issue under consideration.

15. The Hon'ble Division Bench in the decision reported in AIR 1961 Calcutta 229 (supra) overruled the decision of the Hon'ble Division Bench reported in AIR 1955 Calcutta 144 (supra) with the following observations at paragraph 36 of the said report:-

"36. It is also appears, from the review of case law hereinabove made that the two decisions reported in 59 Cal WN 606: ((S) AIR 1955 Cal 144) and 64 Cal WN 80: (AIR 1960 Cal 420) (both by Das Gupta, J.,) are not reconcilable, unless it be held that his Lordship confined his observations in the case, reported in 59 Cal WN 606: ((S) AIR 1955 Cal 144), only to valuation of a suit for the purpose of jurisdiction."

However the following observations of the learned Single Judge of this Court at Paragraph 9 in the decision reported in 1984 (I) CHN 121 (supra) relied on by Mr. Biswas illuminates the issue as such quoted below:-

"9. Where there is no basis for valuation, the plaintiff may even make an imaginary valuation subject to the limitation that proper Court-fees should be paid if the Court so directs on enquiry. But, one thing is certain that the valuation initially rests with the plaintiff and not the Court. On the interpretation of the words "subject to provisions of Section 11", the difficulty in exercising the power would appear in the absence of any objective standard and such power can be availed of or resorted to only when there is an objective standard. Thus, when an objective standard for valuing the relief would be available, Court will be empowered to amend the valuation. But if there is no such objective standard, the valuation as put forward by the plaintiff should prevail................."

16. Summing up the discussion made above it can safely be concluded that the purchase value of the suit property cannot be the sole criterion to revise th

Please Login To View The Full Judgment!

e value put in by the petitioners for their relief of said counter- claim. The Hon'ble Supreme Court in the case of Kishore Kumar Khaitan and another vs. Praveen Kumar Singh reported in (2006) 3 SCC 312 has held that the jurisdiction under Article 227 of the Constitution of India may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction, but when a Court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution of India. The learned Trial Judge by revising the value of the said relief of counter-claim solely on the basis of the purchase value of the suit property has certainly committed a jurisdictional error, consequently the argument of Mr. Mallick on this score also fails. 17. The order impugned for the aforesaid reasons is set aside. C.O. 1318 of 2019 is thus allowed. The petition dated January 28, 2019 filed by the plaintiffs is dismissed. There will be no order as to costs. The instant judgment could not be delivered within the time mandated by the Hon'ble Supreme Court for delivery of judgment after conclusion of argument in the case of Anil Rai v. State of Bihar reported in AIR 2001 Supreme Court 3137 as normal functioning of Court has been disrupted due to outbreak of Covid-19 pandemic. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
O R