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Kumud Kumar v. Central Bank Of India And Another
Factual and Procedural Background
The appellant landlady originally filed a suit for possession, damages, and mesne profits against the respondent tenant (a bank). The trial court, on 30-04-1994, decreed the suit and fixed mesne profits at Rs. 10,000 per month. During the tenant’s first appeal to the High Court of Judicature at Allahabad, the tenant deposited mesne profits from 22-01-1991 at the same rate. The High Court allowed the appeal on the sole ground that the landlady had not issued a notice terminating the tenancy under Section 106 of the Transfer of Property Act, 1882, and it set aside the trial court’s decree. The present appeal is against that High Court judgment.
Subsequently, the landlady issued the requisite Section 106 notice, filed a fresh suit for possession and mesne profits, and obtained another decree, this time awarding mesne profits at Rs. 5,000 per month. The tenant complied, surrendered possession, and deposited mesne profits at the reduced rate, which the landlady withdrew.
Legal Issues Presented
- Whether a notice under Section 106 of the Transfer of Property Act was necessary before filing the original ejectment suit.
- At what rate the landlady is entitled to withdraw the mesne profits earlier deposited by the tenant for the period 22-01-1991 to 01-08-1996.
Arguments of the Parties
Appellant (Landlady)
- Contended that, in the circumstances, no Section 106 notice was required before instituting the original suit.
Respondent (Tenant Bank)
- Admitted through counsel that mesne profits in the second suit were deposited at Rs. 5,000 per month.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court declined to entertain the appellant’s assertion that a Section 106 notice was unnecessary, reasoning that:
- Pursuing the present appeal after initiating and succeeding in a second suit based on the required notice would constitute an abuse of process; a litigant cannot simultaneously prosecute two inconsistent remedies.
- The appellant had acquiesced in the High Court’s ruling by issuing the Section 106 notice and filing the second ejectment suit.
Consequently, the only matter left for determination was the appropriate rate at which the appellant could withdraw mesne profits previously deposited. Upon the respondent bank’s admission, the Court fixed the rate at Rs. 5,000 per month for the period 22-01-1991 to 01-08-1996, matching the decree in the second suit.
Holding and Implications
APPEAL DISPOSED OF.
Directions:
- The appellant may withdraw mesne profits at Rs. 5,000 per month out of the amount already deposited for 22-01-1991 to 01-08-1996.
- The respondent bank is at liberty to withdraw the balance of the deposit.
- No order as to costs.
Implications: The decision resolves only the parties’ monetary entitlements and does not lay down any new legal precedent.
Order
1. The appellant herein is the landlady. She filed a suit for possession, damages as well as mesne profits. The suit was decreed on 30-4-1994 and the tenant was required to pay mesne profits @ Rs. 10,000 per month. Thereafter the respondent preferred an appeal before the High Court of Judicature at Allahabad against the decree passed by the trial court. During the pendency of the appeal, the tenant deposited mesne profits with effect from 22-1-1991 @ Rs. 10,000 per month. Subsequently, when the first appeal came up for hearing before the High Court, it was found that the landlady had not terminated the tenancy by giving notice under Section 106 of the Transfer of Property Act. On this short ground, the appeal was allowed and decree of the trial court was set aside. It is against the said decision of the High Court, the landlady is in appeal before us.
2. After the judgment of the High Court, the landlady terminated the tenancy by giving notice under Section 106 of the Transfer of Property Act and thereafter filed a suit for possession and mesne profits. The trial court decreed the suit and awarded mesne profits @ Rs. 5000 per month. The tenant on the basis of the said decree, handed over the possession of the premises and deposited the mesne profits @ Rs. 5000 per month, which was withdrawn by the landlady.
3. Learned counsel, appearing for the appellant urged that in the present case no notice under Section 106 of the Transfer of Property Act was required to be given to the tenant. We are not inclined to entertain the argument of learned counsel for the appellant. If we permit the appellant to prosecute this appeal, it would amount to abuse of the process of the court. It is almost settled that a litigant cannot be allowed to prosecute two remedies simultaneously. Moreover we find that the appellant has acquiesced to the order of the High Court by giving notice under Section 106 of the Transfer of Property Act and thereafter filing a suit for ejectment of the tenant. The only question that requires to be determined is at what rate the appellant is entitled to the rent deposited by the tenant. It is admitted by the Bank's counsel, Mr Avijit Bhattacharjee that the respondent Bank had deposited the mesne profits in the second suit @ Rs. 5000. We, therefore, permit the appellant to withdraw the rent @ Rs. 5000 out of the amount deposited by the respondent tenant herein for the period 22-1-1991 to 1-8-1996. The respondent Bank will also equally be at liberty to withdraw the balance amount. Learned counsel for the parties are also in agreement with this order.
4. With these directions, the appeal is disposed of. There shall be no order as to costs.
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