JUDGMENT
Nripendra Kumar Bhattacharyya, J.
1. By this revision under Section 115 of the C.P.C. the defendant has come up against the appellate judgment dated 28.6.94 passed in Misc. Appeal No.374/93 by the learned Additional District Judge, 9th Court, Alipore, 24-Parganas(South) whereby the learned Judge dismissed the Misc. Appeal on contest and affirmed the order of the learned Assistant District Judge, 10th Court, being order No. 123 dated 12.2.93 passed in Title Suit No.69/88. By the said order the learned Assistant District Judge rejected the petition of the defendant holding that the suit has been over valued for the purpose of avoiding the lowest court competent to try the suit. In that petition the defendant also ascerted that the valuation that has been given by the plaintiff in the suit is appropriate and reasonable. After hearing the learned Advocates for the parties in that suit, the learned Assistant District Judge, by the impugned order No. 123 dated 12.2.93, rejected the prayer and decided the issue No.3 which was framed for the purpose in favour of the plaintiff. An appeal has been taken out against the said order before the court of the learned Additional District Judge as indicated earlier and there also the defendant-appellant canvassed those points or allegations as has been made earlier but without any effect. Hence this revision.
2. In a narrow compass the fact of the case is that the plaintiff instituted the suit against the defendant for his eviction from the suit property on the ground that he was a lincencee and his licence has been revoked for damages and for mesne profits. In paragraph 7 of the plaint, the plaintiff ascerted that if in the ultimate analysis the court found out that the defendant is not a licensee but a tenant under the premises Tenancy Act, then the letter that was sent by the defendant may be treated as a notice under Section 13(1)(j)(k) of the West Bengal Premises Tenancy Act. In the back drop of this fact, the plaintiff valued the suit on the basis of the licence fee at Rs.4,800/- and Rs. 10,500/- towards damages and/or mesne profits tentatively and ad- valorem court fee was paid. That statement of valuation has been given in paragraph 9 of the plaint and in the prayer portion. In prayer (b) the plaintiff prayed for a degree for mesne profit or damages @Rs.100 per diem on and from 1.6.85 till the date of delivery of khas possession and undertook to deposit additional court fee after actual determination of the mesne profits according to the provision of Order 20 Rule 12 of the C.P.C.
3. Mr. Mrinal Kanti Roy, learned Advocate for the petitioner contended that the valuation that has been given in the plaint is arbitrary and unreasonable. He further contended that in order to avoid the lowest court competent to try the suit in the instant case, the court of the Munsif has been avoided in violation of Section 15 of the C.P.C. The suit has been instituted in the court of the Assistant District Judge. Mr. Roy further contended that the plaintiff has the liberty to value his own suit according to his own valuation unless the valuation of the suit is arbitrary and unreasonable. He further contended that the valuation as has been put in this suit, is arbitrary and unreasonable. In support of his contention that where a valuation put by the plaintiff is arbitrary and unreasonable, the court has the power to interfere with that valuation and set at right the valuation that has been put by the plaintiff in a suit, relied on Apex Court decisions to wit, Abdul Hamid v. Abdul Majid, , Minakshi Sundaram v. Venkatachalam reported in AIR 1979 SC 389, Tara Devi v. Thakw Radha Krishna Maharaj, , In Re: Sm. Dalia Ghosh, reported in 1991(2) Calcutta Law Journal, 226, In re: Manirampur Cultural Association, reported in 92 CWN 502. Mr. Roy also referred to the decision of Mustafa Shah v. Dhanu Shah, reported in 70 CWN 1137 for showing that in an appropriate case where a wrong valuation has been given, the court can in an appropriate case set aside the same under revisional jurisdiction.
4. Mr. Bhaskar Bhattacharjee, learned Senior Advocate for the opposite party on the other hand contended that valuation is a mixed question of law and fact and the same cannot be decided as a preliminary point and that is to be adjudicated at the trial itself. In support of his submission, Mr. Bhattacharjee relied on a decision of the Apex Court in the case of Nandita Bose v. Ratanlal Nahata, reported in AIR 1987 SC 1987.
5. Heard the submission of the learned Advocates for the parties and considered the materials on record. The Division Bench of the High Court in the case of Sm. Dalla Ghosh had the occasion to consider this question and in this connection also considered the decision in the case of Manirampur Cultural Association (supra) and also the case of Nandita Bose v. Ratanlal Nahata (supra). In that decision the Division Bench, held that the liberty to value a suit and to determine the forum on the basis of such determination lies with the plaintiff normally, unless the valuation put by the plaintiff cannot be demonstratively stated to be arbitrary and unrea- sonable. The decision further defined the meaning of the term ‘demonstra- tively’ which means ‘to make manifest’, ‘to give proof of, ‘to prove with certainty’, ‘to exhibit by practical means”. No doubt, the defendant has a’ duty to point out before the appropriate court to see whether the valuation that has been given by the plaintiff in his plaint is manifestly arbitrary and unreasonable, then it is for the court to decide that question. The Supreme Court in the case of Tara Devi (supra) has held, inter alia,
“In a suit for declaration with consequential relief under Section 7 (iv)(c), the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of court-fee and jurisdiction has to be ordinarily accepted. It is only in cases where it appears to the court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the court can examine the valuation and can revise the same.” (The under scoring has been made by me)
6. This decision is based on other two decisions of the Apex Court, namely, Sathappa Chettia v. Raamanath Chettia, and also the case of Minakshi Sundaram Chetttar v. Venkatalam Chettiar, (supra) as indicated earlier. So it is a settled principle that the valuation is a matter between the plaintiff and the court because the State is a party which actually will be loosing the financially in case the suit is undervalued. So the matter is between the plaintiff and the State. The defendant has a duty and liberty to point out that the valuation which has been put by the plaintiff Is arbitrary and unreasonable. In the instant case the same has been done by the defendant. The trial court examined the materials before it as were available and then came to a finding that the suit has been properly valued. As has been pointed out already, the contention of Mr. Roy also touches section 15 of the C.P.C. He contended that in order to avoid the court of the lowest grade competent to try the suit, meaning the Munsif, the suit has been overvalued so that the suit can be filed before the court of the Assistant District Judge. A Division Bench of this Court, in the case of Monirampur Cultural Association (supra) has, inter alia, held;
“Section 15 of the Code of Civil Procedure requiring every suit to be instituted in the court of the lowest grade competent to try it is a rule of procedure only and not of jurisdiction and if a higher court has otherwise jurisdiction in respect of a suit under the provisions of a relevant statute constituting such courts, if retains and is not deprived of such Jurisdiction in respect of that suit even though under section 15 of the Code, the suit is to be instituted in a lower court”.
7. The decision further held
“Even though under Section 19 of the Bengal, Agra & Assam Civil Court’s Act, 1887 the jurisdiction of a Munsif extends to all original suits the value whereof does not exceed Rs. 7500/- the jurisdiction of the District Judge or the Assistant District Judge in respect of such suits is not ousted even if such suits are required to be filed in the court of the Munsif concerned under Section 15 of the Code of Civil Procedure.”
8. This decision has been relied on by another Division Bench in the case of In re : Dalla Ghosh (supra). The Division Bench in the case of Dalla Ghosh also relied on a decision of Apex Court, that is, the case of Nandlta Bose (supra). The Apex Court in the case of Nandita Bose has held on the background of the fact that the landlady in a suit for eviction was entitled to claim mesne profits or damages in respect of the property in question at a preliminary stage even before the trial had commenced. That question had to be decided at the conclusion of the trial along with other issues arising in that suit. Similarly, in this case, damages and mesne profits that have been claimed cannot be ascertained at the initial stage of the suit. That can be ascertained by the court at the conclusion of the suit, at the time of passing the decree or even thereafter in a separate suit or proceeding. From the plaint as annexed to the revisional application it appears that the plaintiff has undertaken to pay the additional court fees after the actual determination of the mesne profits. According to the provisions of Order 20 Rule 12 of the C. P. C. that question is to be decided at the conclusion of the trial and not at the initial state of the trial.
9. In such view of the matter, I am to hold that there is no merit in this revisional application accordingly, it is rejected. All Interim orders stand vacated. Looking to the age of the suit, it is desirable that the learned trial court shall make all endeavours to dispose of the suit at an early date.