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2001 DIGILAW 542 (KER)

Paramu v. Balan

2001-10-04

R.BHASKARAN

body2001
Judgment :- Bhaskaran, J. The defendant in a suit for mandatory injunction directing him to vacate the house bearing Door No. 13/215 comprised in Sy. No. 298/4 Edakkunni Village is the appellant. 2. The questions of law framed in the second appeal are as follows: (i) Whether the Courts below were correct in law in entertaining a suit for mandatory injunction for ejectment after having found that the defendant is not a licensee but a trespasser? (ii) Have not the Courts below erred in relying on the decision of Sant Lai Jain v. avthar Singh (AIR 1985 SC 857) which dealt with the case of a licensee and not a trespasser? (iii) Whether the Courts below were justified in directing the plaintiff to pay the requisite court fee after the adjudication in the appeal and before the levy of execution proceedings? (iv) Have not the courts below gone wrong in deciding on the question of court fee after the evidence is recorded on the merits of the claim overlooking the embargo under S.12(2) of the Court Fees Act? The facts leading to the above questions of law framed in the memorandum of appeal are as follows: 3. The plaintiff was allotted the property described in the plaint schedule as per registered partition deed of the year 1993. The plaintiff and defendant entered into an agreement for sale with respect to the property on 20.7.1994 (Ext. A3 ) for a consideration of Rs. 1.14.000/-. An amount of Rs. 55.000/- was paid in three installments towards the sale consideration. Since the balance amount was not paid no sale deed could be executed. However. the defendant broke open the door after 23.10.1994 and started residing in the house. Though a complaint was made to the police. no action was taken by them. 4. The defendant admitted the agreement but denied the case of trespass. According to the defendant. he was allowed to reside in the house as permitted by the plaintiff on the basis of a mediation talk and he was not a trespasser. 5. It had come out in evidence that the defendant has filed a suit in the Sub Court. Tirur, to get back the advance amount paid by him and there is an order of attachment before judgment of the very same property for the said amount. 5. It had come out in evidence that the defendant has filed a suit in the Sub Court. Tirur, to get back the advance amount paid by him and there is an order of attachment before judgment of the very same property for the said amount. The trial court found that the defendant has failed to prove that he occupied the building with the permission of the plaintiff and his conduct in filing a suit for return of the money paid showed that he was not interested in enforcement of the agreement of sale. Therefore. the suit was decreed as prayed for. 6. The defendant filed an appeal before the lower appellate court. Before the lower appellate court it was informed that the suit filed by the defendant for return of the advance amount was decreed and the counter claim filed by the plaintiff for damages for use and occupation of the building at the rate of Rs. 750/- per month was also allowed. The appellate court found that though the defendant's case is one of permissive occupation the case of the plaintiff is one of trespass. It was found that the plaintiff was therefore bound to pay the court fee under S.25(a) of the Kerala Court Fees Act treating Rs. 750/- per month as income of the property. The lower appellate court notice the reasoning adopted by the Supreme Court in Sant Lai Jain v. Avtar Singh (AIR 1985 SC 857) and followed it and dismissed the appeal after directing the plaintiff to pay court fee under S.25(a) before the trial court. 7. I heard counsel for the appellant in detail. Though a ground to the effect that the plaintiff was only a co-owner and was not entitled to sue without the other co-owner on the party array is raised in the memorandum of second appeal that was not seriously pressed at the time of argument. It was discussed by the courts below and found that even a co-owner can file a suit for recovery of possession against a trespasser. The counsel for the appellant relied on S.12(2) of the Kerala Court Fees Act and submitted that the question of court fee is to be decided before the evidence is recorded and not later. It was discussed by the courts below and found that even a co-owner can file a suit for recovery of possession against a trespasser. The counsel for the appellant relied on S.12(2) of the Kerala Court Fees Act and submitted that the question of court fee is to be decided before the evidence is recorded and not later. I do not find it possible to agree with the counsel for the appellant that the defendant is entitled to invoke S.12(2) to allow the second appeal because the appellate court directed payment of court fee under S.25(a) of the Act. In the written statement filed by the defendant. though there is general plea that the suit is not maintainable and that the valuation with regard to the jurisdiction and court fee is not shown correctly. there was no specific plea that the court fee has to be paid for recovery of possession or that the prayer should have been for recovery of possession after payment of proper court fee. No issue was raised with respect to proper court fee payable in the suit. There is no case for the appellant that the trial court was requested to consider this aspect and it failed to take a decision on court fee. Moreover. it is clear from S.12(2) of the Act that it is intended to prevent the defendant from raking up the issue of court fee after the evidence is started. It is not correct to say that the appellate court had no jurisdiction to give proper direction with respect to the payment of proper court fee. S.12(4) of the Court Fees Act reads as follows: "12(4)(a). Whenever a case comes up before a Court of Appeal. it shall be lawful for the court. either if its own motion or on the application of any of the parties. to consider the correctness of any order passed by the lower court affecting the fee payable on the plaint or any other proceeding in the lower court and determine the proper fee payable thereon. Explanation:- A case shall be deemed to come before a Court of Appeal even if the appeal relates only to a part of the subject matter of the suit. (b) If the Court of Appeal decides that the fee paid in the lower court is not sufficient. Explanation:- A case shall be deemed to come before a Court of Appeal even if the appeal relates only to a part of the subject matter of the suit. (b) If the Court of Appeal decides that the fee paid in the lower court is not sufficient. the court shall require the party liable to pay the deficit fee within such time as may be fixed by it. (c) If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower court and which the appellant seeks in appeal. the appeal shall be dismissed but if the default is in respect of a relief which has been decreed by the lower court. the deficit fee shall be recoverable as if it were an arrear of land revenue. (d) If the fee paid in the lower court is in excess. the court shall direct the refund of the excess to the party who is entitled to it". Therefore. the appellate court has ample power to direct payment of deficit court fee as is done by the lower appellate court. 8. The question whether the defendant can rake up the question of court fee after the evidence was over and during the course of arguments was considered by a Division Bench of this Court in We-Build Pvt. Ltd. v. Kamaleswaran (1981 KLT 773). In that case. there was an issue raised with regard to the correct court fee payable but the counsel for the defendant did not request the court to take a decision on it before the trial started. After the evidence was over and during the arguments. the counsel argued it and the court posted the case for deciding that question. Thereafter the plaintiff moved the court for deletion of that issue on the ground that the question should have been considered before the suit. The trial court allowed that application and a revision was filed against that order. This Court in para 15 of the order held as follows: "15. In view of what is said above. the court has to determine the question of correct court fee at the stages stated in the Kerala Court Fees Act. 1959. and in the manner specified therein. Under S.12(2) of the Act. This Court in para 15 of the order held as follows: "15. In view of what is said above. the court has to determine the question of correct court fee at the stages stated in the Kerala Court Fees Act. 1959. and in the manner specified therein. Under S.12(2) of the Act. where a defendant raises such a question in the manner mentioned in that provision the court is required to decide the same before evidence is recorded affecting such defendant on the merits of the claim. A defendant who chooses to assist the court in the matter of collection of the correct Court fee by raising that question. ought also alert the courts of that question raised by him at the proper stage at which the court is required by the statute to determine it. If he is not prompt in that. it only means that he does not go all the way to assist the court in determining the correct court fee leviable on the plaint and the court would be justified in treating such a question as one not arising in the case and in deleting it on that ground." The counsel for the appellant however wanted me to note the observations in para 8 to the effect that after taking the evidence the court cannot take up the question of court fee. This observation is against the appellant as it was said that at the instance of the defendant it could not be taken up by the trial court. This will not in any way affect the power of the appellate court under S.12(4) of the Act as is done in the present case. While arguing the question of proper court fee whether the defendant can contest it seriously the Supreme Court's decision in Rathnavarmaraja v. Smt. Vimala (AIR 1961 SC 1299) in the following words is also relevant: "The Court Fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court fee payable on the plaint. all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court fee on his plaint. Whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State. How. by an order relating to the adequacy of the court fee paid by the plaintiff. the defendant may feel aggrieved. it is difficult to appreciate." 9. The counsel for the appellant then referred to the decision of this Court in George v. John (1984 KLT 179). In that case. the suit was for mandatory injunction to remove the defendant from the building and it was decreed. The contention was that since the defendant was in exclusive possession of the premises it could not be said that he was a licensee and that the period of agreement having been over he could be treated as a licencee thereafter. This contention was rejected and it was held that the moment the period of licence is over he will not become a trespasser unless the licence is terminated and the possession become adverse to his knowledge and with his acquiescence. Therefore. it was held that the suit for mandatory. injunction was maintainable. The counsel for the appellant pointed out that the said decision will not apply where the plaintiff himself has set up a case of trespass. It is in this connection the relevance of the decision of the Supreme Court in Sant Lai Jain's case (1985 SC 857) become relevant. That was a case for mandatory injunction against a licensee. The Supreme Court held as follows: "The suit in effect is one for possession though couched in the form of mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. That was a case for mandatory injunction against a licensee. The Supreme Court held as follows: "The suit in effect is one for possession though couched in the form of mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore. we are opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction." 10. The learned Counsel for the appellant submitted that the above decision is not applicable to the facts of this case as the plaintiff had set up a case of trespass and therefore he should have prayed for recovery of possession. This contention would have been valid if the defendant has set up a case of adverse possession or independent title in himself. His definite case in the written statement is that he was permitted to occupy the building after the mediation talk since the plaintiff was not willing to execute the sale deed. The agreement was on 20.7.1994. the trespass was between 23.10.1994 and 25.10.1994 and the suit was filed on 3.11.1994. The defendant is not interested in enforcing the agreement as he has obtained a decree for return of the amount paid by him. He has no other case of ownership or claim for possession with respect to the building. 11. Manthan Rama Murthy in his "Law of Adverse Possession" says "There is perhaps no legal conception more open to a variety of opinion than possession. Possession is a flexible term and is not restricted to mere occupation. Legal possession is occupation with the intention of exercising the right of ownership in respect of it. Mere act of user which do not interfere and are consistent with the owner's title are not sufficient to constitute dispossession of the owner or start adverse possession in favour of the occupant". In the light of the principle and in the light of the claim of the defendant that he was in permissible possession of the building. it is not possible to find that the relief payable for was totally unsustainable. Moreover. if the defendant had raised an issue on this aspect. In the light of the principle and in the light of the claim of the defendant that he was in permissible possession of the building. it is not possible to find that the relief payable for was totally unsustainable. Moreover. if the defendant had raised an issue on this aspect. it would have been possible for the plaintiff to pray for amendment of the plaint to seek a formal prayer for recovery of possession instead of mandatory injunction. 12. Now the lower appellate court has adopted the reasoning of the Supreme Court in Sant Lai Jain's case (AIR 1985 SC 857) and directed recovery on payment of proper court fee. To be a substantial question of law and attract the provisions of S.100 of the Code of Civil Procedure the question must be of substantial importance with regard to the right of the parties to be settled in the appeal. Having regard to the case of the appellant in the suit as revealed in the written statement it cannot be said that he has set up any substantial defence in the suit warranting interference in second appeal. All the questions of law raised in the memorandum of second appeal are found against the appellant and the second appeal is dismissed. The records will be sent back to the trial court without delay.