C.K.Banerji, J. - (1.) This is an appeal from the judgment and order dated 19th Nov., 1979 of R.N. Pyne. J. dismissing the application made by the appellants, inter alia, for the plaint in the suit herein being rejected and taken off the file; alternatively for stay of the suit till the disposal of Title Suit No. 2297 of 1978 (Prahladrai Agarwalla and Ors. v. Shri Rabindranath Pal and Ors.) pending in the City Civil Court at Calcutta; an injunction restraining the respondents herein from proceeding with the suit herein until the disposal of the said application. Facts material for the purpose of this appeal shortly are that, the respondents are owners of premises No. 23, Acharya Jagadigh Chandra Bose Road. Calcutta, within the Ordinary Civil Jurisdiction of this Court. Their predecessor-in-interest Radhakanta Pal obtained a decree for ejectment in the city Civil Court against Dwariknath Das & Anr., the erstwhile lessees of the said premises. While the said decree was being executed the said Radhakanta Pal died. The respondents as the heirs and legal representatives of the said deceased executed the said decree and obtained possession of the said premises on the 27th Nov., 1978. The case of the respondents is that since then at all material times they lawfully held, seized and possessed the said premises. The suit herein was instituted by the respondents against the appellants in this Court by invoking the concurrent jurisdiction of this Court with the Presidency Small Cause Court, Calcutta. The relevant paragraphs of the plaint filed in the suit herein which would be material for the purposes of this appeal, are set out below : "6. By an agreement of tenancy dated Dec. 1, 1978 entered into by the plaintiff No. 2 (being the respondent No. 2 Rabindranath Pal) on behalf of all the plaintiffs (being the other respondents) the defendant No. 3 (being the appellant No. 3 Kailash Agarwalla) was granted the tenancy and as such tenant possession of one shop room on the ground floor of the said premises No. 128, Acharya Jagadish Chandra Bose Road, Calcutta. 7. On or about Dec. 9, 1978, the defendants (being the appellants) wrongfully and/or illegally dispossessed the plainliffs without their consent and without recourse to law of the entire first floor of the said premises No. 128, Acharya Jagadish Chandra Bose Road, Calcutta, save and except two rooms in possession of one Bimal Homeo Hall Private Ltd., by forcing open the Padlock to the said floor which was put by the plaintiff after obtaining possession of the premises as aforesaid. The defendants have also removed the furniture kept by the plaintiff in the first floor of the said premises wrongfully, illegally and without the consent of the plaintiff, 8. ... ... ... 9. ... ... ... 10. The plaintiffs state that in the premises aforesaid they are entitled to recover possession of the said property notwithstanding any title, right or interest which may be set up by the defendants or by any of them. 11. ... ... .... 12. Further and in the alternative by reason of the premises the plaintiffs have suffered damages caused by the defendants and by each of them in respect of the suit property which the plaintiff assess at Rs. 4,000.00 on and from Dec. 9, 1978 being the date of their dispossession. 13. The plaintiffs are entitled to and claim recovery of possession of suit property and damages as aforesaid from the defendants from the date of dispossession i.e.. Dec. 9, 1978. 14. The plaintiffs' cause of action in this suit arose on Dec. 9. 1978 at premises No. 128, Acharya Jagadish Chandra Bose Road within the jurisdiction of this Hon'ble Court and has been and still is continuing from day-to-day. 15. Inasmuch as the value of the suit property exceed Rs. 50,000.00 and damages claimed by the plaintiffs do not exceed Rs. 5,000.00 this Hon'ble Court has the jurisdiction concurrent with Small Cause Court at Calcutta and the City Civil Court at Calcutta has not the jurisdiction to entertain, try and determine this suit. 16. For the purpose of court-fees this suit has been valued at Rs. 500,00/- for delivery of possession and at Rupees 4,000.00/- for damages and such ad valorem Court-fees has been paid in this suit and the plaintiffs undertake to pay such additional Court-fees as and when the same may be directed by this Hon'ble Court. The plaintiffs claim: (a) Decree for possession of the suit property being the first floor of the said premises No, 128, Acharya Jagadish Chandra Bose Road, Calcutta save and except two rooms in possession of the said Bimal Homeo Hall (P) Ltd. (b) Decree for Rs. 4,000,00 as damages, (c) Receiver. (d) Injunction, (e) Costs. (f) Further or other reliefs." 2. It appears that the appellants Nos. 1 and 2 herein have also instituted a suit against the respondents herein in the City Civil Court being Title Suit No. 2297 of 1978 (Shri Prahladrai Agarwalla and Anr. v. Shri Rabindranath Paul and Ors), inter alia, for a declaration that the appellant No. 1 is the rightful tenant of the first floor flat of premises No. 128, Acharya Jagadish Chandra Bose Road at a monthly rent of Rs. 215/- and the appellant No. 2 is the rightful tenant in respect of the shop room on the ground floor of the said premises No. 128 Acharya Jagadish Chandra Bose Road at a monthly rent of Rs. 40/-.
(2.) Mr. P.K. Ghose, learned Advocate for the appellants, submitted that the said application in the Court below was made by the appellants for the plaint in the suit herein being rejected and taken off the file and alternatively, for stay of the said suit until the disposal of the suit filed by the appellants in the City Civil Court against the respondents. The suit has been instituted by the respondents by invoking the concurrent jurisdiction of this Court with the Presidency Small Causes Court, Calcutta as would appear from paragraph 15 of the plaint. To keep the suit within the pecuniary limit of the jurisdiction of the Presidency Small Causes Court, Calcutta the suit has been valued for the purpose of court-fees at Rupees 500.00 for delivery of possession and at Rs. 4,000.00 for damages. Such damages are claimed by the respondents in respect of damages done by the appellants to the suit property as will appear from paragraph 12 of the plaint. In paragraph 15 of the plaint the respondents have valued the suit property at exceeding Rs. 50,000.00. A suit for recovery of possession of a property exceeding Rs. 50,000.00 in value could not be entertained by the Presidency Small Causes Court, Calcutta, the pecuniary limits of its jurisdiction being Rs. 5,000.00. The valuation of the suit for delivery of possession at Rs. 500.00 for the purpose of Court-fees is an undervaluation and would not in any event determine the question of jurisdiction. Mr. Ghose referred to Section 18 of the Presidency Small Cause Courts Act as amended by the West Bengal Act XXXII of 1969. The portion relevant for our purposes of the said section reads as under : "Subject to the exceptions in Section 19, the Small Cause Court shall have jurisdiction to try all suits of a civil nature when the amount or value of the subject matter does not exceed five thousand rupees." He also referred to Section 19 of the said Act and to Clauses (d) and (g) of the said section which read as under : "The Small Cause Court should have no jurisdiction in (d) Suits for the recovery of immovable property (g) Suits for the determination of any other right to or interest in immovable property."
(3.) Mr. Ghose urged that the suit herein is a suit for recovery of immoveable property. The claim for damages is merely an ancillary relief. The immovable property, recovery whereof is claimed in the suit is valued in paragraph 15 of the plaint at exceeding Rs. 50,000.00. The Small Cause Court, therefore, had no jurisdiction to entertain or try such suit. In any event the claim for damages is an alternative claim as pleaded in paragraph 12 of the plaint. Thus, even if the respondents give up their claim for possession, the suit cannot proceed merely on an alternative claim. The claim for damages as framed in the suit arises out of alleged dispossession of the respondents of the property in suit by the appellants and in paragraph 12 of the plaint it is pleaded that the respondent suffered damages caused by the appellants in respect of the suit property which the respondents assess at Rs. 4,000.00 on and from 9th December, 1978 being the date of their alleged dispossession. To decide the question of damages as made in the suit it would be necessary for the Court to determine the right or interest of the parties in the the property in suit which the Small Cause Court has no jurisdiction to decide under Section 19 (g) of the said Act.;