calcutta high court

Calcutta High Court: In an appeal was filed against the dismissal of the application for interim mesne profits during the pendency of the eviction suit, a division bench comprising of I.P. Mukerji* and Biswaroop Chowdhury,* JJ., held that the Court’s decision regarding questions of law is unanimous, but there are differences with regards to question of facts, necessitating referral to a third Judge for resolution. The Court referred the matter to the Chief Justice for referral to a third Judge to resolve the factual differences between the judges.

Factual Matrix

In the instant matter, the appellant-plaintiff filed a suit for eviction and determination of mesne profits against respondents-defendants for a shop room. The appellant also filed an application seeking interim mesne profits during the pendency of the suit. The application for interim mesne profits was dismissed by a single judge, leading to the current appeal.

The original tenant passed away in 2006, leaving behind the respondent 1 (his widow) and the second 2 (his daughter). The appellant claimed that the tenancy was commercial in nature and ended on 12-07-2011, as per Section 2(g) of the West Bengal Premises Tenancy Act, 1997. The appellant filed the suit for recovery of possession and mesne profits from 12-07-2011, considering the respondents as trespassers. The respondents claimed their right to occupy the premises through an execution proceeding in a previous suit. The appellant argued that the respondents’ occupation was commercial, supported by various documents. Disputes arose regarding the valuation of the suit and the nature of occupancy.

Moot Point

Whether the court, during the pendency of a suit for eviction and determination of mesne profits, can order interim mesne profits or occupation charges to be paid to the plaintiff by the defendant?

Court’s Assessment

The Court unanimously agreed on the following question of law:

  1. The principle allowing for the award of mesne profits or occupation charges pending appeal by the defendant against an eviction order, as established in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., is applicable in suits for eviction against occupiers pending trial.

  2. This principle, subject to the plaintiff establishing prima facie that the defendant has practically no defense to the claim, allows for the award of mesne profits or occupation charges need not be based on the market value of the property but should satisfy the test of reasonableness

However, there were differences between the judges on certain question of facts, such as

  1. Disagreement regarding the nature of occupation charges and the time period for payment.

  2. The appellant failed to establish a strong prima facie case suggesting that the respondents have no defense to their claim in the suit.

  3. Issues such as ownership of the suit property, nature of tenancy, determination of the respondents’ status under Order 21 Rule 97105 of the Civil Procedure Code, 1908 (CPC), and the correct pecuniary jurisdiction of the suit can only be determined at the trial.

Justice Biswaroop Chowdhury held that the respondents, claiming to be tenants under the West Bengal Premises Tenancy Act, 1997, should pay a provisional fair rent of Rs. 2000 per month from a specified date. Justice I.P. Mukerji held that the respondents became trespassers from 2011 and are liable to pay reasonable occupation charges for a period not exceeding three years prior to the institution of the suit.

Court’s Decision

Since the judges agreed on the monthly occupation charges of Rs. 2000, the Court directed the respondents to pay such charges from a specified date, payable in advance by the 15th of each month. The matter was referred to the Chief Justice to appoint a third Judge to rule on the factual differences between the judges.

[Debonair Vanijya (P) Ltd. v. Eshrat Jahan, 2024 SCC OnLine Cal 1178, order dated 05-02-2024]

*Judgment by Justice I. P. Mukerji, Justice Biswaroop Chowdhury

Advocates who appeared in this case :

Mr. Surajit Nath Mitra, Sr. Adv., Mr. Sankarsan Sarkar, Mr. Mehaboob Rahman and Mr. Shayak Mitra, Counsel for the Appellants

Mr. Shyamal Chakraborty Mr. Debajyoti Mondal, Ms. Anjana Das and Mr. Sayan Ghosh, Counsel for the Respondents

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