D.K. Seth, J. - (1.) In this application, amongst others, the following prayer has been made: (a) The plaint filed in the above suit be rejected and/or be returned to the plaintiff and/or an enquiry be ordered under Sec. 11 of the West Bengal Court Fees Act. 1970. In order to support such relief Mr. Deb, learned counsel for the petitioner contends that the suit is barred for misjoinder of cause of action. The cause of action pleaded cannot be joined together under Order 2 Rule 4 of the Code of Civil Procedure. Next he contends that there are misjoinder of parties and that the suit can not proceed. Third point that was taken by him is that the suit has been valued at Rs. 15 lakhs only to create jurisdiction of this court without any foundation. Elaborating his submission he contended that the present one is a suit for eviction in which the claim for damage cannot be incorporated since it is altogether a different cause of action which cannot be joined in a suit for eviction. Similarly, he contends that the claim for damages is a money claim which is confined against the defendant no. 1 alone and as such defendants No. 2 and 3 cannot be roped in and therefore it is altogether a mis -joinder of cause of action. Then he contends that the valuation of damages at Rs. 15 lakhs is baseless. No particulars have been given as to how such valuation has been assessed. Therefore, the suit should be dismissed.
(2.) Mr. Pratap Chatterjee, learned counsel for the plaintiff opposing the said application contends that the defendant no. 1 is a tenant under the plaintiff who had taken the property on lease from the defendant no. 2. In paragraphs 14 and 15 of the plaint it has been pleaded that in collusion between the three defendants the defendant No. 1 purported to have surrendered the tenancy to the defendant no. 2 though the defendant no. 1 was the tenant under the plaintiff to whom the defendant no. 9 had given the property on lease. In turn the defendant no. 1 had inducted the defendant no. 3 and that there is collusion between the three defendants. Therefore, there is no scope either of mis -joinder of cause of action or misjoinder of parties as soon the allegations are made against all the three defendants. The cause of action cannot be divided and even if it is so divided or separated in that event the identical question and common question of law and fact would be involved. Be that as it may, in a suit for eviction, damages can very well be included for any wrongful action with regard to the condition under which the tenancy is held. Surrendering of the tenancy to a third party is a breach of contract of tenancy between the plaintiff and the defendant no. 1 and as such a claim for damages with regard thereto is very much maintainable within the meaning of clause (b) of Rule 4 of Order 2 of Civil Procedure Code. He then contends that the valuation has since been made on the basis of the plaintiff's choice which can be questioned only when the defendants show that such valuation demonstrates to be baseless then only the question can be gone into, otherwise it should be decided on evidence at the time of trial, not at this stage. He has relied on a decision in the case of In re : Smt. Dalia Ghosh, reported in : 96 CWN 77. On this ground he contends that the application should be dismissed.
(3.) I have heard both the Counsels at length.;