JUDGMENT
B. Bhattacharya, J.
1. This revisional application under Article 227 of the Constitution of India is at the instance of the tenant/defendant in a suit for eviction and is directed against the order dated May 20, 1999 passed by the Additional District Judge, Second Court at Alipore, in C.R. No. 135 of 1998 thereby affirming the order dated March 2, 1998 passed by the learned Civil Judge (Senior Division), 9th Court at Allpore in T.S. No. 57 of 1995 rejecting the application for return of the plaint for presentation before the appropriate forum.
2. There is no dispute that the opposite party filed a suit for eviction of the present petitioner on the allegation that he was a tenant in respect of the suit properly at a monthly rental of Rs. 1,000/- payable according to English Calendar month.
3. While valuing the aforesaid suit, the opposite party had stated that the same was equivalent to 12 months rent for ejectment and a further sum of Rs. 19,000/- for damages for wrongful occupation of the suit premises from August 1. 1995 till recovery of khas possession.
4. Thus the suit was valued at Rs. 31,000/- and the same was entertainable by a Civil Judge (Senior Division).
5. After entering appearance in the said suit, the present petitioner filed an application described as one under section 15 of the Code of Civil Procedure thereby praying for return of the plaint on the ground that the said suit has been deliberately over-valued and has been filed before the Court of Civil Judge (Senior Division), whereas according to the averment
made in the plaint the suit ought to have been Instituted in the Court of Civil Judge (Junior Division).
6. The learned trial Judge rejected the said application. Being dissatisfied, the present petitioner preferred a revlsional application under section 115A of the Code of Civil Procedure before the learned Revisional Court below and by an order dated 20th May, 1999 the Revisional Court below affirmed the order passed by the learned trial Judge. Being dissatisfied, the tenant has come up under Article 227 of the Constitution.
7. Mr. Ghosal, learned senior counsel appearing on behalf of the petitioner has drawn the attention of this court to paragraph 9 of the plaint wherein the opposite party made averment that by an ejectment notice dated May 31, 1995 issued under registered post with A/D the present petitioner was asked to vacate the suit property with the expiry of July 31, 1995 and the copy of the said notice along with the copy of the acknowledgement card and postal receipt were annexed to the plaint.
8. Mr. Ghosal, learned counsel, has further drawn attention of this Court to the fact that the said suit was filed on August 4, 1995. It further appears from the ejectment notice, copy of which was annexed to the plaint, that the present opposite party asserted in the said notice that in the event the petitioner stayed beyond 31st July, 1995 he would be treated as trespasser and from August 1, 1995 he would be liable for damages at the rate of Rs. 50/- per diem till recovery of khas possession.
9. Relying upon the aforesaid fact, Mr. Ghosal, learned counsel, contends that on the date of institution of the suit, according to the rate on which mesne profit was claimed, the suit ought to have been valued at Rs.200/- in addition to Rs. 12,000/- being he valuation for ejectment. Mr. Ghosal, learned counsel, contends that the plaintiff has deliberately valued the suit for recovery of damages for wrongful occupation at Rs.19000/-which has no nexus with the statement made in the plaint and as such the said valuation should be held to be mala-fide one.
10. The learned counsel appearing on behalf of the opposite party has one the other hand supported the order passed by the learned Court below and has contended that while assessing the valuation for damages for wrongful occupation his client assessed the same provisionally from 1st August, 1995 till recovery of possession and as such the said valuation cannot be said to be base-less or exaggerated.
11. According to him, on the basis of averment made in the plaint the suit was maintainable before the learned Civil Judge (Senior Division). He further submits that from the material on record it cannot be said that there was any mala-fide Intention on the part of his client and as such this Court should -not Interfere with the concurrent finding of fact recorded by the learned Court below. In support of the said contention he has relied upon a decision of the Apex Court in the case of Nandita Bose v. Ratanlal Nahata .
12. While disposing of the application under Order? Rule 10 of the Code of Civil Procedure the Court should accept the averment made in the plaint to be true and if on the basis of such averment it appears that the Court
is unable to entertain the said suit on any ground, in that event, the Court should return the plaint for presentation before the appropriate forum. As mentioned earlier, in the instant, case, the plaintiff has alleged that the relationship of landlord and tenant between the parties came to end on and from 31st July, 1995 and from August 1, 1995 he should be treated to be trespasser and should be liable to pay the mesne-profit at the rate of Rs. 50/- per diem as mentioned in the ejectment notice which was annexed to the plaint and thus was a part of the plaint. Therefore in the suit on the basis of pleading, as it stands, the plaint iff-opposite party cannot claim mesne-profit at a higher rate than the one pleaded therein. The law is now settled that while assessing the valuation for the purpose of mesne-profit for wrongful occupation the plaintiff is required to value the same till the presentation of the plaint and not till the recovery of possession which can be ascertained under Order 20 Rule 12 of the Code of Civil Procedure. Therefore, if the plaintiff for the purpose of assessing the valuation for damages for wrongful occupation instead of assessing the same till the date of presentation of the plaint, assessed the same for an indefinite period, such valuation cannot be tenable under law and should not be taken into consideration for the actual valuation of the suit. Therefore at the rate of Rs. 50/- per diem the suit ought to have been valued for damages for wrongful occupation at the Rs. 200/- only. Inasmuch as, the same was filed on 4lh August, 1995, four days after the relationship of landlord and tenant between the parties has been ceased.
13. Both the Courts below over-looked this aspect of the matter. Therefore on the basis of averment made in the plaint itself, the suit could not be valued at more than Rs. 200/- for damages for wrongful occupation or for mense-profit.
14. So far the decision of Nandita Base (supra) is concerned it was held by the Apex Court that unless it appears that the plaintiff had dishonestly and intentionally inflated the valuation of the suit in order to Invite the Jurisdiction of a particular Court which has no Jurisdiction otherwise, the Court should not interfere with the said valuation at the primary stage.
15. In view of what has been stated above this Court has no other option but to hold that in view of the rate of mesne-proflt claimed in the ejectment notice which is a part of the plant, the suit cannot be valued more than Rs. 400/- according to the law of land and the valuation of Rs. 19,000/- was without any basis.
16. The learned counsel for the opposite party lastly has contended that the application filed by the petitioner having been described as one under section 15 of the Code of Civil Procedure, this Court should not set aside the order and grant relief to the petitioner under Order 7 Rule 10 of the CPC. In other words, he contends that there being a specific provision under order 7 Rule 10 of the Code of Civil Procedure for return of the plaint, the Court should not entertain an application which has been described as one under section 15 of the Code of Civil Procedure.
17. I cannot accept such contention. It is settled law that in order to consider a particular application the application should be read as a whole and merely because it is described under a wrong heading. For that reason
the same should not be dismissed. From the statement made in the body of the said application which is annexed to this application it is clear that the petitioner specifically stated that the learned trial Judge should return the plaint. Inasmuch as, the opposite party/plaintiff has given an inflated valuation. Therefore, the application was in substance under Order 7 Rule 10 of the Code of Civil Procedure. Moreover in view of the aforesaid provision under Order 7 Rule 10 of the Code of Civil Procedure if any stage it comes to the knowledge of the Court that it has no jurisdiction either pecuniary or territorial it must return the plaint to the learned Advocate for the plaintiff for presentation before the appropriate forum.
18. Thus, the Courts below acted illegally and with material Irregularity in holding that on the basis of the averment made in the plaint the learned trial Judge had pecuniary jurisdiction to entertain the suit. The application filed by the petitioner is thus allowed. The learned Judge is directed to return the plaint to the learned Advocate for the plaintiff for preentation before the proper Court of Civil Judge (Junior Division).
The revisional application is allowed.
There will be no order as to costs.
Urgent xerox certified copy of this order, If applied for, be supplied within 10 days.
19. Application allowed