Shyam Lal v. Sohan Lal — 1978 DIGILAW 348 (RAJ)

S.K. MAL LODHA, J.—This revision by the plaintiff-petitioner, is directed against the order of Munsif-City, Jodhpur dated May 3, 1974 by which he decided issue No. 5 against the plaintiff and in favour of the defendant and directed him to pay ad volorem court-fee on the market value of the house in dispute. 2. The plaintiff and defendant are father and son respectively. The plaintiff instituted a suit in the court of Munsif City, Jodhpur on August 28, 1969 stating that he owns a house near Hanuman-ji-ki-Bhakri, Jodhpur, described in para 1 of the plaint, that the defendant, with has family, started living in that house with his permission as licensee, that when the relations between the parties became strained, he served a notice dated August 22, 1967 through his counsel, asking the defendant to vacate the house within 15 days and that that noticewas delivered to him on August 24,1967. He further stated that after the expiry of 15 days, the licence stood revoked. It was also stated that in the reply to that notice, the defendant raised certain irrelevant and baseless objections. He further stated that the defendant had started making alterations in the house and has fixed stone slabs (cheens) in the chowk without the permission of the plaintiff on July 18,1969. It was prayed in the plaint that mandatory injunction may be issued against the defendant directing him to vacate the house, described in para 1 of the plaint and further that he should be directed to restore status quo ante in regard to it. 3. The contention of the defendant was that the plaintiff valued the suit for the purposes of court fee and jurisdiction under section 26 of the Rajasthan Court Fees and Suit Valuation Act, 1961 (the Act hereafter) and fixed its value at Rs. 400/- and submitted court fee stamp of Rs. 30/- with the plaint. The defendant resisted the suit and averred that at the time of institution of the suit, the market value of the house, in dispute was not less than Rs. 20,000/- and that the suit of the plaintiff is for dispossession of the defendant and permanent injunction. He submitted that on the facts, stated by the plaintiff, he should pay court fee on 1/2 of the market value of the house in accordance with Section 26 (a) of the Act. 20,000/- and that the suit of the plaintiff is for dispossession of the defendant and permanent injunction. He submitted that on the facts, stated by the plaintiff, he should pay court fee on 1/2 of the market value of the house in accordance with Section 26 (a) of the Act. It was also stated that from this point of view, the trial court has no jurisdiction to hear the suit. It was further pleaded that the plaintiff has prayed for possession of the house by dispossessing defendant and therefore he should pay ad volorem court fee as provided in Section 29 of the Act. The trial court framed issue No. 5 on the basis of these averments, in the pleadings. Issue No. 5 when translated into English, reads as under : "The plaintiff has not correctly valued the suit, and as such, the court fee, paid by him is not sufficient." The learned Munsif decided this issue in favour of the defendant and against the plaintiff and directed that the plaintiff should pay ad volorem court fee on market value of the house in dispute. 4. Being dissatisfied with the order of the learned Munsif dated May 3, 1974, plaintiff has come up in revision as aforesaid. 5. Mr. K. Murari, appearing for the petitioner, submitted that even after the revocation of the licence, the defendant would not be treated as trespasser and that after the termination of the licence when the licnsee" continues to occupy the house in respect of which the licence was granted and revoked, the possession of the house, would be deemed to be in licenser through the licensee and, therefore, on the basis of these premises, it was urged that after the termination of licence, the licensee was under an obligation to surrender possession of the house in dispute to the licenser and if he failed to do so, the licensee can compelled to discharge such an obligation by a mandatory injunction under the provisions of the Specific Relief Act. In this connection he placed strong reliance on Th. Milka Singh vs. Th. Diana(l). My attention was also drawn to Daulat Ram vs. State of Rajasthan(2) in this connection. On the other hand, Mr J. S. Jodha, learned counsel for the non-petitioner, drew my attention to the averments made in paras 4, 5 and 10 of the plaint. In this connection he placed strong reliance on Th. Milka Singh vs. Th. Diana(l). My attention was also drawn to Daulat Ram vs. State of Rajasthan(2) in this connection. On the other hand, Mr J. S. Jodha, learned counsel for the non-petitioner, drew my attention to the averments made in paras 4, 5 and 10 of the plaint. Clause (1) of para 10 of the plaint runs as under: ^^izfroknh ds f[kykQ vknskkRed fu"ks/kkKk tkjh Qjek dj fgnk;r dh tkos fd izfroknh fooknxzLr edku eqUntsZ in la[;k 1 okn i= [kkyh djs o bl edku esa tks Hkh jn~nkscny fd, gS ;k nkSjku nkok djs] mls Bhd djds igys tSlk LVsVl dks dk;e djsA^^ He contended that this is a suit virtually for possession by ejecting the defendant and since after the revocation of the licence, the possession of the defendant is that of trespasser, the plaintiff should pay ad volorem court fee on the market value of the house in dispute in accordance with sec. 29 of the Act. He placed reliance on Ratilal Mani Lal vs. Chadulal Chhotulal(3) Satis Kumar(4), Sisir Kumar Dutta vs. Susil Kumar Dutta (5) and Harish Chandra Ratanlal vs. Ram Chandra(6). I may read hear S. 29 of the Act which is as under:— "S. 29 Suit for possession not otherwise provided for. In a suit for . possession of immovable property not otherwise provided for, fee shall be computed on the market value of the property subject to a minimum fee of rupees twenty." It will also be useful to refer the provisons of S. 7 (v) of the Court Fees Act 1870: "7 Computation of fees payable in certain suits-The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows: (v) In suits for the possession of land, houses buildings-and gardens-according to the value of the subject-matter; and such value shall be deemed to be. Where the subject-matter is a house or garden-according to the market value of the house or garden. A careful reading of the plaint clearly shows that after the revocation of the licence, the plaintiff seeks the recovery of the house. The relief claimed by the plaintiff in substance is one for possession. It is well settled that it is the duty of the Court to see that by clever wordings of point, legitimate duty is not avoided. A careful reading of the plaint clearly shows that after the revocation of the licence, the plaintiff seeks the recovery of the house. The relief claimed by the plaintiff in substance is one for possession. It is well settled that it is the duty of the Court to see that by clever wordings of point, legitimate duty is not avoided. By merely framing the relief in the ingenious form, the substantive prayer for possession cannot be ignored by considering it as a mere prayer for injunction. A somewhat similar question was raised in Satishkumars case (4). Sec. 7(v) of the Court Fees Act, 1870 came up for consideration in that case. It was held in that case that where a person claims possession of certain premises from a licensee whose licence has been revoked, the suit is clearly for recovery of possession and the valuation for purposes of court fee is governed by sec. 7(v). The plaintiff is not entitled to put his own valuation on the suit. Learned Judge followed the Ratilal Manilals case (3). The question was examined in detail by a Special Bench of the Calcutta High Court in Sisir Kumars case (5). After examining the cases cited before the Special Bench, Banerjee, J. observed as under: "I have already observed that the subject-matter of a suit for eviction against a licensee, whose licence stand revoked, and who thereupon becomes a trespasser, is the property which is sought to be recovered. That being so, the value of the relief must be the value of the subject-matter, namely the property and that must be valued in accordance with Sec. 7(v) of the Court-Fees Act." . and the question referred to the Special Bench was answered as follows:— "(1) Valuation of a suit for ejectment of a licensee, upon revocation or termination of his licence, either for purpose of Court-fees or for the purpose of jurisdiction shall be made under the provisions of Sec. 7(v) of the Court-Fees Act. (2) There is on difference in the manner of such valuation between a case of revocation of licence and a case of termination of licence as distinguished from revocation of licence." In Ratilal Manilals case(3) the question raised was regarding the court-fees, payable in a suit for the possession of a house based on the allegation that the defendant in possession is a licensee of the plaintiff. In that connection, while deciding that question, Macklin J, observed as under: "There can be no possible doubt about this being a suit for possession of a house within the meaning of Sec. 7(v) of the Court-Fees Act, and the question then is the value that should be put upon the subject-matter of the suit, since under Sec. 7(v) it is the value of the subject-matter that determines the value of the suit." In Ratilal Manilals case(3), learned Judge dissented from the view taken in Mt. Barkatunnisa Begum vs. Mt. Kaniza Fatma (7). This question was also considered by another Division Bench of the Bombay High Court consisting of Patel and Shah, JJ. in Lakhiram Ramdas vs. M/s Vidyut Cable and Rubber Industries (8). The following observations were made in that case; "In every case, therefore, the Court who is called upon to hear a suit must initially consider the relationship of the parties. It is not as if that in every case the licensor must ask for possession. There are a large number of cases where the licensor continues to remain in not only juridicial possession, but in physical possession along with the licensee, and in such a case in terms of sec. 63 of the Indian Easements Act it is sufficient if he asks for removal of the licensee and a permanent injunction against him restraining him from re-entering the premises, because in that case there is no question of his asking for equally efficacious relief". But the same considerations cannot apply where he is not in physical possession of the property, but is in mere juridical possession as any other owner with subsisting title is. If the Court comes to the conclusion on reading the cause of action that the plaintiff has only asked for a mere injunction to which he is not entitled it must reject the plaint, or dismiss the suit as required by the provisions of the Civil Procedure Code. If the Court comes to the conclusion on reading the cause of action that the plaintiff has only asked for a mere injunction to which he is not entitled it must reject the plaint, or dismiss the suit as required by the provisions of the Civil Procedure Code. In some cases the Court may find that the prayer Clause is cleverly worded as in the present case but in effect it amounts to a prayer for possession, in which case it is its duty to see that the requisite court-fees are paid, and if not, to call upon the plaintiff under the Court-Fees Act to pay the court-fees." This decision was followed by Naik, J. of Bombay High Court in Miss Aninha DCosta vs. Smt. Parvatibai M. Thakur (9). It was held that in a suit for possession by a licensor against his licensee, court fee is to be paid on the market value of the property. 6. It is well settled principle that a court has to see the substance of the plaint. In the plaint, it has been clearly mentioned by the plaintiff that the defendant with his family has been residing in the house in dispute with the permission of the plaintiff from August 19, 1966 as a licensee, that the licence stood revoked after 15 days from the service of the notice dated August 22, 1967, in which he was asked to vacate the house within 15 days and that this notice was served on August 24, 1967. In reply to the defendants notice dated November 2, 1968, the plaintiff asked the defendant to vacate the house in dispute. In clause (1) of para 10 of the plaint, it has been stated that injunction in the mandatory form be issued against the defendant directing him to vacate the house in dispute. It is, therefore, clear to my mind that the substance of the plaint, though cleverly drafted, is that the defendant should vacate the house. It follows from the averments of the plaint that the plaintiff is out of possession of the house in dispute and this being so, he can only ask for possession as the defendant is occupying the property, when in effect, the plaintiff wants removal of the defendant, this, in my opinion, amounts to his eviction. 7. It follows from the averments of the plaint that the plaintiff is out of possession of the house in dispute and this being so, he can only ask for possession as the defendant is occupying the property, when in effect, the plaintiff wants removal of the defendant, this, in my opinion, amounts to his eviction. 7. Having regard to the substance of the plaint, I have come to the conclusion that the plaintiff wants eviction of the defendant from the house in suit. This tantamounts to ask for possession and as such he must pay the court fee payable on a suit for possession. The trial court, therefore, rightly directed the plaintiff to pay court fee to be computed on the market value of the property in accordance with S. 29 of the Act. 8. Now I may deal with the two decisions, cited by the learned counsel for the petitioner. 9. I must state at once that Th. Milka Singhs case (1) supports the contention of the learned counsel for the petitioner. Relying on the observations made in Prabirendra Nath Nanday vs. Narendra Nath Nanday (10) it was held that by accepting the status of a licensee a person cannot be treated as a trespasser simpliciter unless he has left the premises and re-occupied it later on and that after the termination of the licence while the licensee may continue to occupy the premises, the possession of the property would be deemed to be in the licensor through the licensee. On the basis of this reasoning, it was observed: "As a licensee is neither a trespasser nor a tenant the Legislature in its wisdom thought that such a case could be clearly governed by Section 7 (iv) (d) of the Court Fees Act leaving the litigant free to put his own valuation. This seems to us to be the only reasonable interpretation of the section in the circumstances. Coming now to section 56 of the Specific Relief Act we are of the opinion that if this section is to be construed liberally then the provisions of sec. This seems to us to be the only reasonable interpretation of the section in the circumstances. Coming now to section 56 of the Specific Relief Act we are of the opinion that if this section is to be construed liberally then the provisions of sec. 55 would be completely stultified and in every case of breach of an obligation the litigant will have to take recourse to the remedy of a suit for possession." I respectfully dissent from the view taken in Milka Singhs case (1) and prefer to follow Sisir Kumars (5), Lakhiram Ramdas (8) and Miss Aninhas (9) cases. In this case, the defendant is in physical possession of the house in dispute. After the revocation of the licence, the plaintiff prayed that the defendant should be directed to vacate it. The reason that has prevailed with me is that on the basis of the cause of action mentioned in the plaint and the substantive relief, which the plaintiff would be entitled to get if he succeeds in the suit, will be a direction to the defendant to vacate the house in dispute. 10. So far as Daulatrams case (2) is concerned, it may be stated that in that case there was no dispute regarding the applicability of section 7(iv) (c) of the Court Fees Act, 1870. That was a suit for declaration and injunction and the plaintiff valued his suit for the purposes of court fees and jurisdiction on an amount of Rs. 300/-. On behalf of the defendant, an objection was raised that the court fee paid by the plaintiff on his suit as on a valuation of Rs. 300/- was grossly inadequate and improper and the plaintiff should pay court fee on the same amount regarding which the plaintiff sought a declaration that he did not and could not hold a monopoly on the route in question from July 1, 1950 to March 31, 1951, and that the demand by the State against him for the payment of Rs. 23,000/- was unjustified and unlawful. It was held that the valuation put by the plaintiff on a suit, which was a suit for declaration and consequential relief at Rs. 23,000/- was unjustified and unlawful. It was held that the valuation put by the plaintiff on a suit, which was a suit for declaration and consequential relief at Rs. 300/- for the purposes of court fees and jurisdiction, must be accepted to be perfectly proper, being in accordance with Sec. 7(iv) of the Court Fees Act, 1870 and it is the valuation for court fees which must govern the valuation for purposes of jurisdiction under section 8 of the Suits Valuation Act. Thus, Daulatrams case (2) is of no avail to the petitioner. 11. In the premises aforesaid, in my opinion, the learned Munsif has not exercised his jurisdiction illegally or with material irregularity when he directed the plaintiff to pay the ad volorem court fee on the market value of the house in dispute. 12. Thus, case for interference is made out in this revision. 13. The result is that this revision application has no force and it is accordingly dismissed. In the circumstances of the case, I leave the parties to bear their own costs of this revision application.