Calcutta HC Affirms Eviction Decree Against Long-Staying Tenant, Rejects Commercial Courts Jurisdiction Plea Raised After Decree
The Calcutta High Court dismissed an appeal against an eviction decree, holding that the landlord's acceptance of rent after withdrawing an earlier ejectment suit created a fresh monthly tenancy that was validly terminated by a notice dated July 5, 2003, and that a Commercial Courts Act jurisdiction objection raised for the first time on appeal—after a decree was passed in 2024—could not be entertained.
A Division Bench of the Calcutta High Court, comprising Justice Debangsu Basak and Justice Md. Shabbar Rashidi, dismissed APD 4 of 2025 on 2 July 2026, affirming a decree for recovery of possession passed on 13 December 2024 by a learned Single Judge in CS No. 317 of 2003. The suit was brought by the Calcutta Gujarati Education Society against its tenant, Budge Budge Company Limited, whose occupation of the suit premises traced back to a lease agreement dated 29 October 1973. The Division Bench rejected each of the appellant's grounds: that the second suit was barred for multiplicity of proceedings, that the landlord had waived the 2003 notice to quit by accepting rent, that the tenancy could only be determined on default, and that the Trial Court lacked jurisdiction under the Commercial Courts Act, 2015.
The Dispute Before the High Court
The lease between the parties was created on 29 October 1973 at a monthly rent of ₹11,025, with the tenant also paying property tax at ₹385.88 per month and surcharge at ₹1,378.38 per month. According to the respondent-plaintiff's case, the tenant defaulted on rent, leading to a notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 and the filing of Ejectment Suit No. 419 of 1992 before the City Civil Court at Calcutta.
That 1992 suit lingered without hearing. On 24 March 2003, the respondent applied to withdraw it, and by order dated 8 April 2003 the suit was dismissed. After withdrawal, the tenant paid rent at old rates for the months of April to August 2003. Simultaneously, the respondent issued a fresh notice dated 5 July 2003 under Section 106 of the Transfer of Property Act, 1882, terminating the tenancy with effect from the expiry of August 2003. The tenant did not vacate. On 9 December 2003, the respondent filed CS No. 317 of 2003 on the Original Side of the Calcutta High Court for recovery of possession and mesne profits.
The tenant contested the suit on multiple fronts. It obtained an order dated 7 July 2004 in C.O. No. 542 of 2004 setting aside the withdrawal order of 8 April 2003, thereby reviving Ejectment Suit No. 419 of 1992. That earlier suit was ultimately withdrawn by order dated 29 April 2006. The tenant argued that for a period, two suits were pending on the same subject matter, rendering CS No. 317 of 2003 bad for multiplicity and barred by limitation. The Trial Court framed nine issues and, after trial, decreed the suit for possession and mesne profits.
Key Legal Issues
Four distinct legal questions were pressed on appeal. First, whether the filing of CS No. 317 of 2003 was impermissible under Order XXIII Rule 1(4) of the Code of Civil Procedure, 1908, or bad for multiplicity of proceedings. Second, whether the landlord's acceptance of rent after the 2003 withdrawal of the earlier suit amounted to waiver of the notice to quit under Section 113 of the Transfer of Property Act, 1882. Third, whether the tenancy agreement—which specified termination only on default in rent payment—precluded a Section 106 notice. Fourth, whether the suit was a “commercial dispute” within the meaning of the Commercial Courts Act, 2015, depriving the Original Side of jurisdiction.
The appellant also relied on The Kerala State Electricity Board v. T.P. Kunhaliumma, (1976) 4 SCC 634, for the limitation argument, and on Sneh Lata Goel v. Pushplata and Others, (2019) 3 SCC 594, and Kiran Singh and Others v. Chaman Paswan and Others, (1954) 1 SCC 710, in connection with the jurisdiction objection under the Commercial Courts Act.
How the Bench Reasoned
On the fresh cause of action and multiplicity. The Division Bench agreed with the Trial Court's analysis. After the 1992 ejectment suit was withdrawn and the landlord accepted rent from the tenant for April to August 2003, a new tenancy came into existence by holding over under Section 116 of the Transfer of Property Act, 1882. The July 2003 notice terminated that fresh tenancy, giving rise to a cause of action entirely distinct from the one underlying Ejectment Suit No. 419 of 1992. Accordingly, the bar under Order XXIII Rule 1(4) did not apply, and the two suits were not based on the same cause of action. The subsequent revival of the 1992 suit through C.O. No. 542 of 2004, and its eventual withdrawal in 2006, did not alter this position because CS No. 317 of 2003 had already been filed on a separate cause of action.
On the limitation argument drawn from The Kerala State Electricity Board (supra), the bench found it inapplicable. The respondent had served fresh notice under Section 106 of the Act of 1882 on 5 July 2003 and filed the second suit shortly after. The Limitation Act, 1963 had no role to play in these circumstances.
On waiver of notice. The Trial Court's findings on waiver under Section 113 were affirmed. Rent payments made after the July 2003 notice were, without exception, made pursuant to court orders and without prejudice to the rights of the parties. The Court referred to the three-judge Bench decision of the Supreme Court in Calcutta Credit Corporation Ltd. & Anr. v. Happy Homes (P) Ltd., AIR 1968 SC 471, and C. Albert Morris v. K. Chandrasekaran & Ors., (2006) 1 SCC 228, both of which clarify that mere acceptance of rent after determination of a lease does not, without more, show an intention to treat the lease as subsisting. Section 113 requires an act demonstrating such intention, coupled with the other party's consent. No such evidence was before the court. Critically, the tenant had not even taken a specific plea of waiver in its written statement, and the tenant's own witness (DW 1) had admitted in examination-in-chief that the plaintiff refused to accept rent after issuing the 5 July 2003 notice.
On determination by notice despite lease terms. The tenant had argued that its tenancy under the 1973 agreement was terminable only on default in payment of rent, not by a general notice to quit under Section 106. The bench held that acceptance of rent after the earlier tenancy was determined by the 1992 notice had invoked the doctrine of holding over under Section 116 of the Act of 1882. That provision creates a fresh tenancy—running from month to month in the case of a house—determinable by fifteen days' notice, regardless of the terms of the original lease. The Trial Court had rightly held that the July 2003 notice validly determined this renewed tenancy. The bench also observed that the appellant had paid rents for several months at a time, undermining any claim that there had been no default at all.
On the frame of suit and society registration. The appellant had contended that the suit was not framed in accordance with Section 6 of the Societies Registration Act, 1860 and Section 19 of the West Bengal Societies Registration Act, 1961, because the secretary of the society was not named properly and the society itself could not sue. The bench dismissed this. Both provisions use the word “may”, which courts have consistently read as permissive. The secretary had in any case been arrayed as plaintiff No. 2. Substantive rights could not be defeated on such procedural technicalities.
On jurisdiction under the Commercial Courts Act, 2015. This was the most extensively argued point on appeal. The appellant contended that the subject matter of the suit was a commercial dispute within the meaning of the Act of 2015 and that, accordingly, the learned Single Judge on the Original Side lacked jurisdiction.
The bench rejected this contention on several independent grounds. The suit was filed in 2003, well before the Commercial Courts Act came into force in 2015 and before the Commercial Division of the Calcutta High Court was constituted or a Standard Operating Procedure (SOP) was notified in 2021. No objection to jurisdiction had been raised before the Trial Court at any stage of the proceedings. Referring to Sneh Lata Goel (supra), the bench recalled that Section 21(1) of the Code of Civil Procedure, 1908 requires that an objection to territorial jurisdiction be taken at the earliest possible opportunity in the court of first instance and that a failure of justice must be demonstrated. Neither condition was satisfied here. Kiran Singh (supra) similarly confirmed that a party who has chosen a forum on its own valuation cannot be heard to complain of prejudice arising from that choice.
The bench also relied on Ananta Chandrakanta Bhonsule v. Trivikram Atmaram Korjuenkar, MANU/SC/0368/2023, which holds that ouster of civil court jurisdiction cannot operate retrospectively so as to annul a decree already validly passed. A decree had been passed in 2024. Taking the jurisdiction objection at the appellate stage, after the suit had been pending for over two decades and substantially concluded, was characterised by the bench as an attempt to hold on to the subject premises for a paltry amount of rent.
The bench distinguished Starlift Services Private Limited v. Syama Prasad Mookerjee Port, Kolkata, MANU/WB/0764/2026, on the ground that it arose under Section 34 of the Arbitration and Conciliation Act and was not applicable to a civil suit for eviction. Similarly, the ratios in Dipankar Ghosh and Another v. CESC Limited, 2025 SCC OnLine Cal 9363, and T.N. Godavearman Thirumulpad v. Union of India, 2025 SCC OnLine SC 2325, were found to have no application on the facts.
Referring to its earlier decision in Laxmi Polyfab Pvt. Ltd. v. Eden Realty Ventures Pvt. Ltd. and Another, 2021 SCC OnLine Cal 1457, the bench reiterated that the Commercial Courts Act was intended to provide speedy relief for high-value commercial disputes and was not meant to be invoked as a tool to delay relief through technicalities.
Outcome
The Division Bench, in a judgment authored by Justice Md. Shabbar Rashidi (with Justice Debangsu Basak agreeing), found no reason to interfere with the impugned judgment and decree dated 13 December 2024. The decree was affirmed. APD 4 of 2025 was dismissed. All connected applications, if any, were also disposed of. The court directed that urgent photostat certified copies of the judgment be supplied to the parties on priority upon compliance with formalities.