Vinod Kumar Tamrakar vs Mukesh Kumar Agrawal

Abhay M. Naik, J.

Plaintiff/Respondent has instituted a suit for eviction against the Defendant/Petitioner on the grounds u/s 12(1)(a) and (f) of the M. P. Accommodation Control Act, 1961. It has been pleaded that the Defendant/ Petitioner obtained the suit premises vide registered lease deed dated 29-8-1997 for a period of Five years on rent w.e.f. 1-9-1997, which was fixed at Rs. 1,000/- per month for a period of first two and half years and for remaining two and half years, it was settled at Rs. 1200/- per month. It is further pleaded that according to the lease deed, the Defendant/Petitioner was required to handover back the possession of the suit premises on 31-8-2002. In case of non-delivery of vacant possession, the Defendant-tenant was liable to pay Rs. 200/- per day as mesne profit. The plaint has been valued at Rs. 1,28,500/- in the following manner:

(i) For eviction on the basis of yearly rent Rs. 14,400/-

(ii) Mesne profit according to para 8 Rs. 1,13,600/-

(iii) Notice charges Rs. 500/-

Total Rs. 1,28,500/-

The Defendant/Petitioner submitted his written statement raising thereby various pleas. Inter-alia, it has been stated in the written statement that the Defendant was not inducted in the suit premises vide rent note (lease deed) dated 29-8-1997. This apart, it has been further stated that clause pertaining to payment of Rs. 200/- per day as manse profit is absolutely illegal and is not enforceable.

Thereafter, the Defendant/Petitioner submitted an application under Order 7 Rule 11 of the Code of CPC stating thereby that the Plaintiff has grossly over-valued the suit. The Court of Additional District Judge has no jurisdiction because the suit ought to have been filed in the Court of Civil Judge. Moreover, the Defendant/Petitioner would also lose his right of appeal to the Court of District Judge.

Learned trial Judge dismissed the application under Order 7 Rule 11 of the Code of CPC vide impugned order Annx.P/8 dated 6-10-2005. Aggrieved by the same, the present writ petition has been preferred.

Shri R. P. Agrawal, learned Senior Advocate submitted that the Plaintiff/landlord is not entitled to recover any amount in excess of the standard rent and the alleged agreement containing a stipulation about payment of manse profit @ Rs. 200/- per day, is void. Relying upon Section 5 of the M. P. Accommodation Control Act, 1961. He further referred to Section 43 of the Act which makes a landlord liable if he receives rent in excess of the standard rent. Accordingly, it is submitted by him that the suit could not have been valued on the basis of manse profit at the alleged rate and the plaint ought to have been rejected. He placed reliance for this purpose on the Supreme Court decision in case of Smt. Chander Kali Bai and Others Vs. Shri Jagdish Singh Thakur and Another, . Shri Agrawal, learned Senior counsel further placed reliance on the case of State of Madhya Pradesh Vs. Navalkishor Mangilal and Another, . He contended that so long as the statutory tenant continues in possession, notwithstanding landlord''s legal steps to recover possession of the tenanted premises, he is debarred from claiming any amount as compensation.

Per contra, Shri Vivek Rusia, learned Counsel appearing for the Respondent-landlord referred to the Supreme Court decision in case of Commissioner of Income Tax, U.P. Vs. Sh. Bankey Lal Vaidya (Dead) by Lawyers, to contend that a decree for damages of mesne profit may be awarded at a rate in excess of the rent mutually agreed between the parties. He also referred to this Court''s decision in Smt. Prema Agarwal and others Vs. Om Prakash Gautam and another, whereby it has been held that mesne profit may be awarded to the landlord at a rate in excess of the mutually agreed rent.

By the impugned order, application under Order 7 Rule 11 of the Code of CPC has been dismissed. Shri Agrawal, learned Senior counsel conceded that the suit for eviction is maintainable and the plaint with regard to it is not liable to be rejected. Thus, it may be seen that even according to the Plaintiff, the plaint as a whole is not liable to be rejected in to. Provisions contained in Order 7 Rule 11 of Code of CPC make a provision for rejection of plaint. It obviously refers to rejection of plaint in it''s entirety. It does not provide for rejection of plaint in part. It cannot be invoked for seeking partial rejection of plaint. Accordingly, dismissal of application under Order 7 Rule 11 of Code of CPC cannot be said unjustified.

It is further submitted that the plea has been raised in due manner in the written statement. In order to adjudicate upon, learned trial Judge would be required to first give a finding on the existence of the agreement and, thereafter, to decide the validity of the same.

Shri Vivek Rusia, learned Counsel for the Respondent drew attention of this Court to Clause (b) of Rule 11 of Order 7 of the Code of Civil Procedure. He contended that the said provision is not attracted when the objection is raised by the Defendant about over valuation. Clause (b) of Rule 11 of Order 7 of CPC is reproduced below:

Rejection of plaint. - The plaint shall be rejected in the following cases:

(a) --

(b) where the relief claimed is undervalued, and the Plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so.

In the case in hand, the objection of the Defendant/Petitioner is that the suit has been over-valued in an arbitrary manner with a mala fide intention of depriving the Defendant/Petitioner from his right to appeal to the Court of District Judge. Whatever the objection may be, but it is amply clear that the objection of the Defendant/Petitioner being about over-valuation, is not covered by Clause (b) of Rule 11 of Order 7 of CPC Code. This clause seems to be inserted to protect the revenue of the State and does not seem to have been inserted for giving a tool in the hand of the Defendant to oppose the suit on the ground of over-valuation. Thus, rejection of application under Order 7 Rule 11 of the Code of CPC is not found to be unjustified.

Considering the aforesaid, this petition is disposed of with the direction that the Defendant/Petitioner may submit an application for raising specific plea with regard to validity of the lease deed dated 29-8-1997 with reference to the provisions of the M. P. Accommodation Control Act. Learned trial Judge shall, thereafter, frame specific additional issue on the point involved in the suit and give specific finding about the permissibility of making valuation on the basis of manse profit as stipulated in the lease deed. Needless to say that in case, if, the Plaintiff is not able to legally claim the manse profit at a rate in excess of the agreed rent during the period prior to institution of the suit, he would not be permitted to make over valuation of the plaint depriving thereby the Defendant/Petitioner from his valuable right of appeal to the Court of District Judge. Learned trial Judge is expected to decide such additional issue along with other issues on merits. However, it would be within the discretion of the trial Court to render finding of such additional issue at the fag end of the trial before deciding the other issues on merits.

With the aforesaid observations, the petition stands disposed of.

Order accordingly.