- (1.) This is an application filed under Chapter XIIIA of the Original Side Rules.
(2.) The case of the petitioner is that the defendant was a monthly tenant and paid a sum of Rs.24,487.50 per month as rent. Pursuant to notice issued under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 and Section 106 of the Transfer of Property Act C. S. No.496 of 1992 was filed. Such suit was withdrawn with liberty to file a fresh suit and in 2008, pursuant to notice issued under Section 106 of the Transfer of Property Act C. S. No. 258 of 2008 has been filed. In the said suit the eviction of the defendant was sought by recovery of vacant possession besides mesne profits. In the affidavit filed by the defendant to the instant application except for mention of non-payment of cost which was a condition precedent for filing of the subsequent suit, no other defence has been taken. Therefore, the petitioner is entitled to a decree of vacant possession. Counsel for the defendant in opposing the said application submits that this Court lacks pecuniary jurisdiction to entertain the instant suit. A year s rent aggregates to approximately Rs.2,93,850/-. The mesne profits sought is Rs.10,884/- per day which per month aggregates to Rs.3.26 lacs. The valuation has been inflated to bring the instant suit within the jurisdiction of this Court. Under the Court Fees Act 1970 valuation is governed by Section 7(xiii). As the same is in excess this Court lacks pecuniary jurisdiction. The instant suit has been filed in December, 2008 while the earlier suit was filed in 1992. In the suit of 1992, Rs.3,000/- per diem was assessed as mesne profit. Therefore, till the date of filing of the suit (i.e. 110 days) the amount which the petitioner would be entitled to claim on account of mesne profit would be Rs.3.30 lacs. Even if such sum is doubled the suit would not come within the pecuniary jurisdiction of this Court. As a triable issue has been raised no decree be passed on this application. Reliance is placed on AIR 1988 SC 1150 and an unreported judgement in C. S. No.317 of 2003 (The Calcutta Gujarati Education Society & Anr. Vs. Budge Budge Co. Ltd.).
(3.) Counsel for the petitioner in reply submits that in the initial affidavit filed no objection with regard to pecuniary jurisdiction was taken. In the Supplementary Affidavit filed in December, 2010, the defence of lack of pecuniary jurisdiction has been taken and the same is an afterthought. In fact, nowhere has it been pleaded that the mesne profit sought is fanciful or fraudulent as held in 1998 (2) CHN 502. Nowhere has it been pleaded that the calculation at Rs.100/- per diem is fanciful or fraudulent. As the defendant has not been able to demonstrate the same, mere allegation of lack of pecuniary jurisdiction without substantiation cannot be supported. Accordingly, orders be passed as sought.;