Calcutta High Court
Pradeep Kumar Jain And Sons (Huf) vs Sri Sri Iswar Mahadeb And Ors on 17 July, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
2026:CHC-OS:315-DB
OD-5 to 10
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT/195/2024
With CS/189/2016
IA No. GA/1/2024
PRADEEP KUMAR JAIN AND SONS (HUF)
-VS-
SRI SRI ISWAR MAHADEB AND ORS
And
APOT/196/2024
With CS/190/2016
IA No. GA/1/2024
SHRUTI JAIN
-VS-
SRI SRI ISWAR MAHADEB AND ORS
And
APOT/197/2024
With CS/191/2016
IA No. GA/1/2024
MRS. KUSUM JAIN
-VS-
SRI SRI ISWAR MAHADEB AND ORS
And
APOT/198/2024
With CS/192/2016
IA No. GA/1/2024
RAAGINI SAREES PRIVATE LTD
-VS-
SRI SRI ISWAR MAHADEB AND ORS
And
APOT/199/2024
With CS/193/2016
IA No. GA/1/2024
DEEP KUMAR JAIN
2
2026:CHC-OS:315-DB
-VS-
SRI SRI ISWAR MAHADEB AND ORS
And
APOT/200/2024
With CS/194/2016
IA No. GA/1/2024
PRADEEP KUMAR JAIN
-VS-
SRI SRI ISWAR MAHADEB AND ORS
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
-AND-
The Hon'ble JUSTICE MD. SHABBAR RASHIDI
For the Appellants : Mr. Sakya Sen, Sr. Adv. (V.C.)
Mr. Shiv Ratan Kakrania, Adv.
Mr. Tanuj Kakrania, Adv.
Ms. Shreya Goenka, Adv.
Ms. Sairak Goenka, Adv.
For the Respondent : Ms. Somali Mukhopadhyay, Adv.
HEARD ON : 17.07.2026 DELIVERED ON : 17.07.2026 DEBANGSU BASAK, J.:-
1. Six appeals are taken up analogously as the issues raised in the
six appeals are similar.
2. In all the six appeals suits for eviction were filed in 2016. Defence
of the defendant therein was struck off under Section 7(3) of the
West Bengal Premises Tenancy Act, 1997.
3. In all the six appeals, the defendants applied under Order VII Rule
11 of the Code of Civil Procedure, 1908 for rejection of the plaint.
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The application for rejection of the plaint stood dismissed by the
impugned judgments and orders under appeal.
4. Learned Senior Advocate appearing for the appellants submits
that, the plaint does not disclose a cause of action as against the
appellants. He refers to the pleadings in the plaint.
5. Learned Senior Advocate appearing for the appellants submits
that, the disputes involved are commercial disputes within the
meaning of Section 2(1)(c)(vii) of the Commercial Courts Act, 2015.
He submits that, at the time of filing of the suit for eviction, the
immovable property was used as a show room which obviously
involves commerce. Consequently, he submits that, the suit was
filed before the Court which did not possess requisite jurisdiction.
On that ground alone, the plaint should be rejected with all interim
orders passed therein vacated.
6. Learned Senior Advocate appearing for the appellant submits that,
the suit was filed under the provisions of the West Bengal Premises
Tenancy Act, 1997. He submits that, the suit property is governed
by the provisions of the Transfer of Property Act and that, no notice
under Section 106 of the Transfer and Property Act was issued.
7. Learned Senior Advocate appearing for the appellants submits
that, the statutory rights can be waived and that, the plaintiffs in
the suit waived such statutory right.
8. In response to a query of the Court, learned Senior Advocate
appearing for the appellants submits that, the appellants are not
paying any occupation charges in respect of the property in
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occupation. However, the appellants are ready to pay occupation
charges if so directed.
9. Respondents in the appeals are represented.
10. So far as the 1st, 3rd and 4th grounds sought to be urged in the
appeal are concerned, they may be decided at the trial of the suit.
It is not a scenario under Order VII Rule 11 of the Code of Civil
Procedure, 1908.
11. On a meaningful reading of the plaint, it cannot be said that the
plaint does not disclose a cause of action. The plaintiffs are seeking
eviction of tenants from an immovable property. The applicable law
governing the tenancy may be decided at the trial of the suit.
Whether there was any waiver of any statutory right may be
decided at the trial of the suit.
12. The 1st, 3rd and 4th grounds urged are not the issues which can
be decided under Order VII Rule 11 of the Code of Civil Procedure,
1908, in the facts and circumstances of the present case.
13. Respondents agree with the appellants that, the suit filed
involves a commercial dispute within the meaning of the Act of
2015. The suit was filed in 2016. Commercial Division of the High
Court was constituted by the notification dated July 16, 2016. As
to whether or not Section 12A of the Act of 2015 is mandatory was
decided by the High Court in AIR 2021 Cal 190 (Laxmi Polyfab
Pvt. Ltd. -Vs- Eden Realty Ventures Pvt. Ltd. and Another).
Laxmi Polyfab Pvt. Ltd. (Supra) was decided on April 7, 2021. It is
of the view that, suits filed prior to December 11, 2020 will not be
dismissed on the ground of non compliance of Section 12A of the
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Act of 2015 as the relevant notification of the standard operating
procedure for under taking pre litigation mediation was not
published.
14. Laxmi Polyfab Pvt. Ltd. (Supra) was noted in (2022) 10
Supreme Court Cases 1 (Patil Automation Private Limited And
Others -Vs.- Rakheja Engineers Private Limited). There the
Hon’ble Supreme Court held that, Section 12A of the Act of 2015
was mandatory. So far as High Court declaring Section 12A of the
Act of 2015 to be mandatory, the date of such decision was held to
govern such respective High Court.
15. In SLP (C) No. 8111 of 2026 (Shri Balaji Industrial
Engineering Ltd. -Vs- Steel Authority Of India Ltd. -IISCO Steel
Plant) Hon’ble Supreme Court observed that, when a commercial
suit is taken up by a Judge in the non-commercial division but
such Judge is with the determination of the Commercial Division,
then, such decision of such Court cannot be faulted.
16. Applying the ratio of Patil Automation Private Limited And
Others (Supra) read with Laxmi Polyfab Pvt. Ltd. (Supra) in the
facts and circumstances of the present case, therefore, the suits
involving commercial disputes filed prior to December 11, 2020 not
complying with Section 12A of the Act of 2015 cannot be held to be
instituted incorrectly.
17. The present suit was instituted in 2016 which is prior to
December 11, 2020. Consequently, non compliance of Section 12A
of the Act of 2015 will not vitiate the filing of the present suit.
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18. Since the disputes in the suits involves commercial dispute as
agreed between the parties, it would be appropriate that, we invoke
our powers under Section 15 of the Act of 2015. In such exercise,
we direct transmission of the records of CS/189/2016,
CS/190/2016, CS/191/2016, CS/192/2016, CS/193/2016 and
CS/194/2016 along with all connected applications from the Non-
Commercial Division to the Commercial Division. On such
transmission, the department will treat CS/189/2016,
CS/190/2016, CS/191/2016, CS/192/2016, CS/193/2016 and
CS/194/2016 along with connected applications to be disposed of
in the non commercial division. No doubt the department will
renumber CS/189/2016, CS/190/2016, CS/191/2016,
CS/192/2016, CS/193/2016 and CS/194/2016 in the
Commercial Division on transmission of such records.
19. Accordingly, all the six appeals along with the connected
applications are dismissed, without any order as to costs.
(DEBANGSU BASAK, J.)
20. I agree
(MD. SHABBAR RASHIDI, J.)
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