Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK CRP No.14 of 2023 In the matter of an Application under Section 115 of the Code of Civil Procedure, 1908 *** Santanu Kumar Bebarta Aged about 56 years Son of Apparna Bebarta Flat No.103, 1st Floor, GDS Gallery Ashok Nagar, Bhubaneswar – 751 009 District: Khordha. … Petitioner (Plaintiff in the Court below). -VERSUS- Kishore Kumar Samantaray Aged about 62 years Son of Late Dasarathi Samantaray Resident of Gumadera At/P.O.: Belpahar – 768 215 District: Jharsuguda. … Opposite party (Defendant in the Court below). Counsel appeared for the parties: For the Petitioner : Mr. Amit Prasad Bose, Advocate For the Opposite party : Mr. Swarup Kumar Patnaik, Advocate P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN CRP No.14 of 2023 Page 1 of 19 Date of Hearing : 22.08.2024 :: Date of Order : 22.08.2024 ORDER Challenge has been laid against Order dated 24.02.2023 passed by the learned Senior Civil Judge, Bhubaneswar in C.S. No.1062 of 2020 rejecting the petition filed by the plaintiff-petitioner (tenant of the suit schedule property) under Order VII, Rule 11 of the Code of Civil Procedure, 1908 (“CPC”, for short) for rejection of counter claim set up by the opposite party-defendant (owner of the suit schedule property), this civil revision petition has been filed craving to exercise power under Section 115 of the Code of Civil Procedure, 1908, (“CPC”, for short) with the following prayer(s):
Facts
“The petitioner, therefore, prays that Your Lordship’s may graciously be pleased to admit this case, call for the records from the court below and after hearing of the parties set aside order dated 24.02.2023 under Annexure-1 passed by the learned Civil Judge, Senior Division, Bhubaneswar in C.S. No.1062 of 2020 and thus allow the petition under Annexure-6 and thus reject the counter claim filed by the defendant/opp.party. And pass any other order(s) direction(s) as this Hon’ble Court may deem fit and proper. And for this act of kindness the petitioner shall, as in duty bound ever pray.” 1.1. Two petitions— one by the petitioner-plaintiff (tenant of the suit schedule property) filed on 09.02.2023 and the CRP No.14 of 2023 Page 2 of 19 other by the opposite party-defendant (counter claimant- owner of the suit schedule property) filed on 10.02.2023— vide Order dated 24.02.2023 being disposed of by the learned Senior Civil Judge Bhubaneswar, the petitioner-plaintiff assailed the rejection of his petition under Order VII, Rule 11 of the CPC, insofar as it sought to reject the counter claim instituted by the defendant. Facts: 2. Facts leading to filing of the present civil revision petition are adumbrated herein below. 2.1. The case in nutshell is that the plaintiff, inducted as tenant in the month of July, 2018 under the defendant- opposite party in respect of suit schedule premises on monthly rent of Rs.14,000/- for a period of three years computed from 01.06.2018, agreed to pay the enhanced rent of Rs.14,700/- after expiry of one year and it is claimed that he had invested around Rs.5,00,000/- in renovation of the premises and never defaulted in paying the rent. 2.2. It is stated that on 13.07.2020, the defendant-owner started demanding an amount of Rs.30,000/- as rent and asked to make payment of Rs.1,00,000/- towards security. It is alleged that the defendant used force to evict the plaintiff from the suit premises on 13.07.2020. CRP No.14 of 2023 Page 3 of 19 Alleging forcible eviction, the plaintiff by way of filing plaint instituted suit for permanent injunction, bearing C.S. No.1062 of 2020, before the Court of Civil Judge (Senior Division), Bhubaneswar with the following relief(s): “(a) Let a decree of permanent injunction be passed restraining the defendant, his agents, servants to evict the plaintiff from the tenanted premises and to disconnect the electricity and water connection to the premises, unless until he is evicted in the process of law. (b) Cost of the suit be awarded in favour of plaintiff. (c) Any other relief/s as deem fit and proper be awarded in favour of the plaintiff. And for which act of your kindness the plaintiff shall as on duty bound ever pray.” 2.3. The defendant has filed written statement-cum-counter claim, while admitting agreement subsisted during the period from 01.06.2018 to 31.05.2021, disputed the fact that the plaintiff has been a habitual defaulter and in order to avoid payment of arrears of rent as demanded by the defendant the suit has alleged to have been filed. Having refuted the claim of the plaintiff, the defendant has set up counter claim by stating that the tenancy period having got expired on 31.05.2021, the plaintiff failed to hand over vacant possession of the suit premises and the outstanding rent mounts up to CRP No.14 of 2023 Page 4 of 19 Rs.2,34,450/- till the month of October, 2021, which has given rise to approach the Court for appropriate relief by way of counter claim. 2.4. It has been specifically stated in the written statement- cum-counter claim as follows: tenancy, the counter claim “That this being a counter claim for the relief of recovery of possession against the plaintiff by determination of his monthly is valued at Rs.1,88,650/-, i.e., the annual rent next before the filing of the counter claim as per the provisions of Section 7(xi) of the Court Fees Act, recovery of arrear rent of Rs.2,34,450/- till the month of October, 2021 and in total it is valued at Rs.4,23,100/- for the purpose of court fee and jurisdiction and accordingly, the court fee is paid for the same.” 2.5. A written statement to the counter claim has come to be filed by the plaintiff by stating that on the consent of the defendant, the plaintiff invested a huge amount towards the interior decoration work of the premises in question. Thus, he has agreed for adjustment of the said outstanding amount claimed towards arrears of rent. 2.6. By way of petition under Order 7, Rule 11 of the CPC, the plaintiff sought to question the maintainability of counter claim on the following grounds: a. Though the defendant has claimed to have paid ad valorem court fee on Rs.2,34,450/-, the suit being valued at Rs.4,06,186/-, which represents arrears CRP No.14 of 2023 Page 5 of 19 of rent of suit schedule premise, no proper court fee was paid on the total valuation of suit; as such the counter claim becomes defective; and, hence, the same is liable to be rejected. b. No clear explanation as to cause of action in the counter claim, whether the same arose after 31.05.2021, i.e., the date on which tenure of agreement expired, being set out by the defendant, the same is liable to be rejected, for it is barred by law of limitation. 2.7. Objection has been filed by the opposite party-defendant to the said petition under Order VII, Rule 11 filed by the petitioner-plaintiff wherein it has been stated that the defendant-counter claimant in his evidence in chief has asserted that he is not liable to pay court fee on Rs.4,06,186/- as assessed by the plaintiff. Explaining further with respect to cause of action, the defendant submitted that for recovery of possession of the suit premises, as the period of tenancy expired on 31.05.2021 and vacant possession being not handed over to the owner, notice was sent to the plaintiff and the written statement-cum-counter claim has been filed by the defendant after lapse of notice period seeking permission for acceptance of the same. However, the defendant-counter claimant in the objection has submitted that “prior to filing of the suit there was an CRP No.14 of 2023 Page 6 of 19 arrear rent of Rs.2,34,450/- and for the period during pendency of this suit, the rent/damage has been accrued to Rs.1,71,736/- total amounting to Rs.4,06,186/- calculated till the end of December, 2022. The defendant/counter claimant in his evidence in chief has simply mentioned such fact of arrear dues against the plaintiff.” 2.8. The learned Senior Civil Judge has been pleased to reject the petition under Order VII, Rule 11 of the CPC by observing that the non-payment of court fee (deficient) can be a curable defect which does not defeat maintainability of counter claim and there has been mention of cause of action. 2.9. So far as other petition of the defendant-counter claimant is concerned, the learned Senior Civil Judge could ascertain from record that the plaintiff-tenant had made payment towards rent in the Court on 17.09.2022 and thereafter he has not made any payment towards rent. Since the suit at the stage of hearing and counter claimant has been examined in part, instead of offering himself for cross-examination the plaintiff has been protracting the proceeding of the case on frivolous grounds. He has made the observation that the claim of the defendant regarding the payment of arrear rent/ damage, the same is subject-matter of the suit and depends on the outcome of suit. Therefore, the learned CRP No.14 of 2023 Page 7 of 19 Senior Civil Judge has directed to make payment of monthly rent for the period from the month of October, 2022 till February, 2023 before the Court on the next date of hearing. 2.10. The present civil revision petition is confined to challenge as to justification for the rejection of petition under Order VII, Rule 11, CPC, filed by the opposite party-defendant by the learned Senior Civil Judge. Consideration of rival submissions:
Legal Reasoning
9. We do not have a case at hand where the appellant is not capable of purchasing the court fee. He did pay the court fee ultimately, though belatedly. But then, under the facts and circumstances of the case, the reasons assigned for the delay in filing the appeal cannot be a valid reason for condonation of the delay, since the appellant could have filed the appeal deficient in court fee under the provisions of law, referred above. Therefore, we find that the High Court was right in dismissing Section 5 application of the appellant as insufficient funds could not have been a sufficient ground for condonation of delay, CRP No.14 of 2023 Page 14 of 19 under the facts and circumstance of the case. It would have been entirely a different matter had the appellant filed an appeal in terms of Section 149 CPC and thereafter removed the defects by paying deficit court fees. This has evidently not been done.” 3.6. In Nemi Chand Vrs. The Edward Mills Co. Ltd., (1953) SCR 197 it has been observed that, “It is always open to the appellant in an appeal to give up a portion of his claim and to restrict it. It is further open to him, unless the relief is of such a nature that it cannot be split up; to relinquish a part of the claim and to bring it within the amount of court-fee already paid.” 3.7. Taking cue from the above underlying principles implicit in the above reported judgments, it can safely be said that the learned Senior Civil Judge is justified in holding that the deficient court fee, if any, could be made good later on and the objection as raised by the petitioner- plaintiff is curable one. 3.8. On the score of cause of action, going by the version of the written statement-cum-counter claim makes it crystal clear that the tenancy was for a period of three years from the date of the induction of plaintiff-tenant commencing from 01.06.2018 till 31.05.2021. It is contended that had the petitioner been sanguine about his rights and prejudice he should have handed over the vacant possession of the premises to the opposite party- defendant immediately on the expiry of the period of CRP No.14 of 2023 Page 15 of 19 contract. So far as cause of action is concerned it has been averred that it arose on 04.06.2021 when the defendant-counter claimant issued the notice for eviction by ejectment of tenancy and arrear rent; and on 15.06.2021 when the plaintiff refused to receive the notice and lastly on 01.11.2021 when the plaintiff straight way refused to give the vacant possession of the suit premises and the arrear rent. 3.9. On the aforesaid premises, there being clear mention about cause of action in the counter claim and the disputed questions are subject-matter of trial in the suit, the ground of attack to question the propriety of Order dated 24.02.2023 of the learned Senior Civil Judge is hereby dispelled. 4. There is, thus, no infirmity found in the observation of learned Senior Civil Judge, Bhubaneswar who has rejected the petition under Order VII, Rule 11 of the CPC filed by the petitioner-plaintiff assailing the counter claim set up by the opposite party-defendant. 5. Another point which deserves to be mentioned, as pointed out by the learned counsel for the opposite party, that the valuation of the suit being of Rs.4,06,186/-, in view of the Code of Civil Procedure (Odisha Amendment) Act, 2010, which came into force with effect from 02.11.2010 being published in the CRP No.14 of 2023 Page 16 of 19 Odisha Gazette, Exraordinary No.1785, dated 02.11.2010, the present civil revision petition is not maintainable before this Court. 5.1. For profit, the substituted Section 115 as amended by virtue of the Code of Civil Procedure (Odisha Amendment) Act, 2010 has been reproduced hereunder: “115.Revision.— other proceedings (1) The High Court, in cases arising out of original suits or other proceedings of the value exceeding five lakhs rupees and the District Court, in any other cases, including a case arising out of an original suit or the commencement of the Code of Civil Procedure (Odisha Amendment) Act, 2010, may call for the record of any case which has been decided by any Court subordinate to the High Court or the District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate Court appears— instituted before (a) to have exercised a jurisdiction not vested in it by law; or (b) to have failed to exercise a jurisdiction so vested; or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit: Provided that in respect of cases arising out of original suits or other proceedings of any valuation CRP No.14 of 2023 Page 17 of 19 decided by the District Court, the High Court alone shall be competent to make an order under this section: (2) The High Court or the District Court, as the case may be, shall not under this section, vary or reverse any order, including an order deciding an issue, made in the course of a suit or other proceedings, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by High Court or District Court, as the case may be. Explanation.— In this section, the expression ‘ANY CASE WHICH HAS BEEN DECIDED’ includes any order deciding an issue in the course of a suit or other proceeding.” 5.2. On this ground alone, the civil revision petition would have been dismissed; however, considering that vide Order dated 16.03.2023, this Court has directed “further proceeding in C.S. No.1062 of 2020 pending in the Court of Civil Judge, Senior Division, Bhubaneswar” to be stayed, no fruitful purpose would be served by granting liberty to the petitioner to approach the appropriate forum, inasmuch as the agreement between the plaintiff and the defendant has come to an end on 31.05.2021 and it is alleged by the owner of the property (opposite CRP No.14 of 2023 Page 18 of 19 party-defendant) that vacant possession of the property has not been handed over by the petitioner-tenant and by virtue of said interim order, the suit did not proceed further. Considering peculiar situation and possible prejudice caused to the parties to establish their respective claims in the suit, the civil revision petition has been considered in the above perspective. 6. In view of above discussions and reasons set out supported by legal position set forth by the Courts, this Court does not find illegality in the order of the Senior Civil Judge, Bhubaneswar warranting interference under Section 115 of the CPC. 7. In fine, this civil revision petition is dismissed. However, this will not affect the right of the petitioner-plaintiff or the opposite party-defendant to establish respective claims on merit in course of trial before the Senior Civil Judge, Bhubaneswar. Parties to bear their own costs. (MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 22nd August, 2024//Aswini/Laxmikant Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Aug-2024 13:33:57 CRP No.14 of 2023 Page 19 of 19
Arguments
3. Sri Amit Prasad Bose, learned counsel for the petitioner would submit that the plaintiff-tenant having invested huge amount in interior decoration of the suit premises on being taken on rent, the same should get adjusted against the monthly rents due to the defendant-owner of the premise. 3.1. On the contrary Sri Swarup Kumar Patnaik appearing for the opposite party-defendant submitted that since ownership of the premises is not in dispute and the petitioner has deposited the amount of rent before the Court which facts go to show that there has been clear admission of jural relationship between owner and tenant. Therefore, inasmuch as it is also admitted by the petitioner-plaintiff that the agreement of tenancy has already been lapsed since 31.05.2021, it is obligatory on CRP No.14 of 2023 Page 8 of 19 the part of the petitioner-tenant to hand over the vacant possession of the premises to the defendant. 3.2. This Court is taken to have regard to the decision of Hon’ble Supreme Court of India rendered in the case of Payal Vision Ltd. Vrs. Radhika Choudhary, (2012) 11 SCC 405 = (2012) 7 SCR 1160, wherein it has been laid down that, “6. to be required established by In a suit for recovery of possession from a tenant whose tenancy is not protected under the provisions of the Rent Control Act, all that the is plaintiff(cid:2)landlord is the existence of the jural relationship of landlord and tenant between the parties and the termination of the tenancy either by lapse of time or by notice served by the landlord under Section 106 of the Transfer of Property Act. So long as these two aspects are not in dispute the Court can pass a decree in terms of Order XII Rule 6 of the CPC, which reads as under: ‘Judgment on admissions.— (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. CRP No.14 of 2023 Page 9 of 19 (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.’ 7. The above sufficiently empowers the Court trying the suit to deliver judgment based on admissions whenever such admissions are sufficient for the grant of the relief prayed for. Whether or not there was an unequivocal and clear admission on either of the two aspects to which we have referred above and which are relevant to a suit for possession against a tenant is, therefore, the only question that falls for determination in this case and in every other case where the plaintiff seeks to invoke the powers of the Court under Order XII Rule 6 of the CPC and prays for passing of the decree on the basis of admission. Having said that we must add that whether or not there is a clear admission upon the two aspects noted above is a matter to be seen in the fact situation prevailing in each case. Admission made on the basis of pleadings in a given case cannot obviously be taken as an admission in a different fact situation. That precisely is the view taken by this Court in Jeevan Diesels & Electricals Ltd. Vrs. Jasbir Singh Chadha, (2010) 6 SCC 601 = 2010 (6) SCR 546 relied upon by the High Court where this Court has observed: ‘Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of this question depends on the facts of the case. The question, namely, whether there is a clear admission CRP No.14 of 2023 Page 10 of 19 or not cannot be decided on the basis of a judicial precedent. Therefore, even though the principles in Karam Kapahi Vrs. Lal Chand Public Charitable Trust, (2010) 4 SCR 422 = (2010) 4 SCC 753 may be unexceptionable they cannot be applied in the instant case fact situation.’ ***” totally different in view of 3.3. In the aforesaid perspective, when the instant case is examined, it is unequivocal that tenancy of the plaintiff and payment of rent are not in dispute. Further it remained undisputed that the court fee has been paid on the amount of counter claim to the tune of Rs.2,34,450/-. The objection of the petitioner-plaintiff that ad valorem court fee has not been paid on the total valuation of the suit, i.e., Rs.4,06,186/- so far as counter claim is concerned has rightly been rejected by the learned Senior Civil Judge as direction to make good the deficit is a curable defect. 3.4. It may deserve to have reference to the decision in S. Rm. Ar. S. SP. Sathappa Chettiar Vrs. S. Rm. Ar. Rm. Ramanathan Chettiar AIR 1958 SC 245 = (1958) SCR 1024 whereunder it has been held that: “What would be the value for the purpose of jurisdiction in such suits is another question which often arises for decision. This question has to be decided by reading Section 7(iv) of the Act along with Section 8 of the Suits Valuation Act. This latter section provides that, where in any suits other than those referred to in Court Fees Act CRP No.14 of 2023 Page 11 of 19 the value as determinable Section 7, paras 5, 6 and 9 and para 10 clause (d), court fees are payable ad valorem under the Act, the value determinable for the computation of court fees and the value for the purposes of jurisdiction shall be the same. In other words, so far as suits falling under Section 7, sub- section (iv) of the Act are concerned, Section 8 of the Suits Valuation Act provides that the value as determinable for the computation of court fees and the value for the purposes of jurisdiction shall be the same. There can be little doubt that the effect of the provisions of Section 8 is jurisdiction to make the value for the purpose of for dependent upon computation of court fees and that is natural enough. The computation of court fees in suits falling under Section 7 (iv) of the Act depends upon the valuation that the plaintiff makes in respect of his claim. Once the plaintiff exercises his option and values his claim for the purpose of court fees, that determines the value for jurisdiction. The value for court fees and the value for jurisdiction must no doubt be the same in such cases; but it is the value for court fees stated by the plaintiff that is of primary importance. It is from this value that the value for jurisdiction must be determined. The result is that it is the amount at which the plaintiff has valued the relief sought for the purposes of court fees that determines the value for jurisdiction in the suit and not vice versa. Incidentally we may point out that according to the appellant it was really not necessary in the present case to mention Rs.15,00,000 as the valuation for the purposes of jurisdiction since on plaints filed on the Original Side of the Madras High Court prior to make any there was no need to 1953 jurisdictional valuation.” CRP No.14 of 2023 Page 12 of 19 3.5. In Ajay Dabra Vrs. Pyare Ram, (2023) 1 SCR 449, it has been observed as follows: to be filed within “5. What we have here is a pure civil matter. An appeal has the stipulated period, prescribed under the law. Belated appeals can only be condoned, when sufficient reason is shown before the court for the delay. The appellant who seeks condonation of delay therefore must explain the delay of each day. It is true that the courts should not be pedantic in their approach while condoning the delay, and explanation of each day’s delay should not be taken literally, but the fact remains that there must be a reasonable explanation for the delay. In the present case, this delay has not been explained to the satisfaction of the court. The only reason assigned by the appellant for the delay of 254 days in filing the First Appeal was that he was not having sufficient funds to pay the court fee! This was not found to be a sufficient reason for the condonation of delay as the appellant was an affluent businessman and a hotelier. In any case, even it is presumed for the sake of argument that the appellant was short of funds, at the relevant point of time and was not able to pay court fee, nothing barred him from filing the appeal as there is provision under the law for filing a defective appeal, i.e., an appeal which is deficient as far as court fee is concerned, provided the court fee is paid within the time given by the Court. We would refer to Section 149 of Civil Procedure Code, 1908 which reads as under: ‘Section 149: Power to make up deficiency of Court Fees.— CRP No.14 of 2023 Page 13 of 19 Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.” It also needs to be emphasized that this Court as well as various High Courts, have held that Section 149 CPC acts as an exception, or even a proviso to Section 4 of Court Fees Act, 1870. In terms of Section 4, an appeal cannot be filed before a High Court without court fee, if the same is prescribed. But this provision has to be read along with Section 149 of CPC which we have referred above. A short background to the incorporation of Section 149 in CPC would explain this aspect. ***