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Madhya Pradesh High Court · body

2003 DIGILAW 1320 (MP)

Subhash Jain v. Shailendra Kumar Malaiya

2003-12-04

K.K.LAHOTI

body2003
Judgment ( 1. ) Shri Pranay Gupta, counsel for petitioner. ( 2. ) Petitioner has filed this petition challenging the order dated 1-11-2003 passed by First Civil Judge Class-I, Sagar in Civil Suit No. 33/A/2000, by which petitioners application under Order 14, Rule 2 of CPC, has been rejected. ( 3. ) Learned counsel for petitioner submits that the issues Nos. 9, 10, 11 are the legal issues, which may be decided even without recording the evidence. The trial Court ought to have decided these issues on the application of petitioner. In continuation to the aforesaid argument, learned counsel for petitioner submits that, without affording opportunity to the petitioner, the trial Court has decided issue No. 10, which ought to have been decided after recording evidence. Contending aforesaid learned counsel for petitioner submits that the impugned order may be quashed. ( 4. ) The issues in question reads as under : (Vernacular matter omitted.....Ed.) ( 5. ) Issue No. 9 has been framed on the pleading of defendant that the suit of plaintiffs is not maintainable without seeking the relief for declaration. Issue No. 10 relates to the contention of defendant that the plaintiff ought to have valued the suit on the market value of property and liable to pay ad valorem Court fee. Issue No. 11 relates to the territorial jurisdiction of the Court on the ground that on filing the suit at market value, the suit cannot be tried by the trial Court as it will be beyond its pecuniary jurisdiction. ( 6. ) From the perusal of the case it appears that the respondent has filed suit for eviction based on landlord tenant relationship. The plaintiff has valued the suit to twelve times of rent agreed between the parties. The contention of petitioner that plaintiff ought to have valued the suit on the basis of market value of property cannot be accepted. ) From the perusal of the case it appears that the respondent has filed suit for eviction based on landlord tenant relationship. The plaintiff has valued the suit to twelve times of rent agreed between the parties. The contention of petitioner that plaintiff ought to have valued the suit on the basis of market value of property cannot be accepted. The aforesaid valuation put by the plaintiff is correct and in accordance with the provision of Section 7(xi) of the Court Fees Act, 1870, which reads as under : 7(xi) between landlord and tenant in the following suits between landlord and tenant : (a) for the delivery by a tenant of the counter part of a lease, (b) to enhance the rent of a tenant having a right of occupancy, (c) for the delivery by a landlord of a lease, (cc) for the recovery of immovable property from a tenant, including a tenant holding over after the determination of a tenancy , (d) to contest a notice of ejectment, (e) to recover the occupancy of immovable property from which a tenant has been illegally ejected by the landlord , and (f) for abatement of rent according to the amount of the rent of the immovable property to which the suit refers, payable for the year next before the date of presenting the plaint . ( 7. ) The aforesaid provision specifically provides that the suit for eviction will be valued in respect of immovable property to which the suit refers, payable for the rent equivalent to one year. The planitiff has accordingly valued the suit and paid the Court fee. It is not necessary for the plaintiff to value the suit according to the market value as the suit is not for recovery of possession based on title. ( 8. ) The Division Bench of this Court in Munnalal v. Balchand, 1961 Jab LJ 230 had an occasion to consider the scope of suit by a landlord for possession from his tenant, including a tenant holding over, after the determination of the lease. ( 8. ) The Division Bench of this Court in Munnalal v. Balchand, 1961 Jab LJ 230 had an occasion to consider the scope of suit by a landlord for possession from his tenant, including a tenant holding over, after the determination of the lease. The Division Bench held : "The scope of a suit by a landlord for possession from his tenant, including a tenant holding over, after the determination of the lease envisaged by Section (xix)(cc) of the Court Fees Act is limited and the Court will not go into the question of title of the landlord as the date of the contract of tenancy, though that question may be considered incidentally for determining, if disputed, whether the contract was made. As we would show in the sequel, even apart from the restricted scope of this suit, it is not open to the defendants to deny that the plaintiffs had title to the house on the date on which they made the contract of tenancy." ( 9. ) The determination of Court Fees in a suit for eviction based on landlord tenant relationship has been considered by the Single Bench of this Court in Shankarlal v. Rai Sahib Richhpal Rungta, 1961 Jab LJ 1106, wherein it was held : "Shri Deoras strenuously urged that the plaintiff should have paid ad volorem court fee in respect of his prayer for possession. Accordingly to the learned counsel the plaintiff is claiming possession from the defendant as a trespasser. It seems to me that this contention is untenable. The plaintiffs suit against the defendant is on the basis of relationship of landlord and tenant. The defendant entered into the suit premises as a tenant of the plaintiff. In respect of that relief, therefore, it is Section 7{xi)(cc) which applies. There too the court fee payable is according to the amount of rent payable for the next year before the date of presenting the plaint. The suit was filed in 1959 i.e. within the first five years of the agreement of lease. The monthly rent fixed was Rs. 1,250/- p.m. which comes to Rs. 15,000/- for the year. Section 7(xi)(cc) of the Court Fees Act runs thus : "for the recovery of immovable property from a tenant, including a tenant holding over after the determination of a tenancy." Laying stress on the phrase "after the determination of a tenancy". The monthly rent fixed was Rs. 1,250/- p.m. which comes to Rs. 15,000/- for the year. Section 7(xi)(cc) of the Court Fees Act runs thus : "for the recovery of immovable property from a tenant, including a tenant holding over after the determination of a tenancy." Laying stress on the phrase "after the determination of a tenancy". Shri Deoras argues that in the present case there being no allegation of determination of tenancy this section is not applicable. Having given an anxious consideration, I have formed the view that the language of clause (xi) (cc) is wide enough to govern a case such as the one in hand. The said phrase relates to "a tenant holding over" that is, a tenant who is holding over after the determination of a tenancy. The comma after the word tenant is conspicuous. There is no comma after the word "over". It is plain enough that clause (xi)(cc) is comprehensive and it covers every suit for the recovery of immovable property from a tenant. The scope of the provision is not limited. As soon as it is shown that the plaint is found on relationship of landlord and tenant the clause comes into play irrespective of whether the lease is determined or not. The argument that no suit for possession against a tenant lies without first determining the tenancy appears attractive but it has no force because the questions of maintainability of a suit cannot be mixed up with the question of court fee. A suit or relief may be not maintainable it may even be frivolous but that has no bearing on court fee. If the alternative relief for possession is not maintainable in the present form it may be a ground for dismissing it on merits, but today I am not concerned with it." ( 10. ) Again in Harishchandra Golcha v. Jiwaji Rao Cotton Mills Ltd., 1972 Jab LJ 503 : (AIR 1972 Madh Pra 150) the single Bench of this Court reiterated the same principle held : "1, therefore, hold that Section 7(xi)(cc) is applicable to a suit for eviction of a tenant who continues in possession after the determination of his tenancy. I may here refer to the decision of this Court in Shankarlal v. Rai Sahib Richhpal Rungta, 1961 Jab LJ 1106. I may here refer to the decision of this Court in Shankarlal v. Rai Sahib Richhpal Rungta, 1961 Jab LJ 1106. It was held in that case that clause (xi)(cc) of Section 7 of the Court Fees Act is comprehensive and covers every suit for recovery of immovable property from a tenant. Thus where a suit is founded on relationship of landlord and tenant the aforesaid provisions shall be applicable. For the reasons given above the finding of the lower Court that the suit is governed by Section 7(xi)(cc) of the Court Fees Act for the purposes of court fees is proper and does not call for any interference in revision." ( 11. ) In view of aforesaid settled position of law the court fees as paid by the plaintiff on a suit of eviction based on landlord-tenant relationship was proper and I do not find any reason to interfere in the order passed by the trial Court in respect of decision on issue No. 10. ( 12. ) So far as issue Nos. 9 and 11 are concerned, the Court has not recorded any finding on the issues and has deferred the decision of issues Nos. 9 and 11 along with other issues. In the circumstances, the trial Court has rightly decided the issue No. 10 in favour of plaintiff and has rightly deferred the decision along with other issues. ( 13. ) In the circumstances, I do not find any material irregularity or illegality in the impugned order, warranting interference by this Court. This petition is without any merit and is accordingly dismissed. Petition dismissed.