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2007 DIGILAW 252 (KER)

Radhakrishnan v. Ananthakrishnan

2007-04-07

PIUS C.KURIAKOSE

body2007
Judgment :- What is the proper court fee payable in a suit for recovery of possession instituted against the alleged tenants pursuant to finding by the Rent Control Court under the Proviso to Section 11 (i) of the Kerala Buildings (Lease and Rent Control) Act that the denial of the landlord's title by the alleged tenants is bona fide is the question which arises in this writ petition under Article 227. 2. Ext.P-1 is copy of the plaint filed by the petitioners and one of the facts mentioned as constituting cause of action for the suit is the dismissal of rent control petition, which had been filed by the plaintiffs against the defendants on finding that the defendants' denial of the plaintiffs' title is bona fide. The prayer in the suit is to allow the plaintiffs to recover the suit schedule building, holding that the grounds envisaged by Section 11(2)(b) and Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are established. The above prayer has been valued under Section 43(2) of the Court Fees and Suits Valuation Act. It was contended by the defendants inter alia that the valuation of the suit is improper and the court fee paid is insufficient. They reiterated their contention before the Rent Control Court that they are not tenants as defined under Act 2 of 1965 and that there is no landlord tenant relationship between the plaintiffs and them. The learned Munsiff formulated an issue as to the propriety of the valuation and sufficiency of the court fee and by Ext. P-2 order decided the issue in favour of the respondents/defendants. 3. I have heard the submissions of Advocate Sri Sreekesh on behalf of the petitioners and also those of Sri V. Chitambaresh, the learned counsel for the respondents. Sri Sreekesh would submit on the authority of various judgments of this court that the court fee payable on a plaint is to be determined on the basis of the averments in the plaint and that the court is not expected to look into the defendants' contentions while taking decision on that question. It is true that the Rent Control Court has found that denial by the respondents of the petitioners' title is bona fide. But, the plaintiffs still maintain that the respondents are tenants and the valuation of the suit is to be decided on the basis of the plaint averments. It is true that the Rent Control Court has found that denial by the respondents of the petitioners' title is bona fide. But, the plaintiffs still maintain that the respondents are tenants and the valuation of the suit is to be decided on the basis of the plaint averments. The Rent Control Court significantly has not found that the plaintiffs have no title but what has been found is only that the denial of the plaintiffs' title by the respondents cannot be said to be not bona fide. The court below was not at all justified in holding that the plaintiffs are not entitled to invoke Section 43 of the Court Fees and Suits Valuation Act for the purpose of valuation, submitted the learned counsel. 4. Sri V. Chitambaresh the learned counsel for the respondents would resist the submissions of the learned counsel for the petitioners vehemently. According to him, it is too late for the petitioners to contend that the respondents are tenants. The Rent Control Court has accepted the contention of the respondents that they are not tenants of the petitioners. The order of the Rent Control Court has attained finality and it is accepting the said order that the petitioners have instituted the present suit. Sri Chitambaresh further submitted that unlike in an ordinary civil suit filed by a landlord of the building situated in an area not covered by the Rent Control Act, in the present suit, the petitioners will have the extra burden of establishing grounds under the Rent Control Act apart from establishing his title. 5. It is by now fairly settled by various judicial precedents including the judgment of the Supreme Court in Kuriyakkatt Chacko v. Ayissumma A.I.R. 1967 (S.C.) 176 and by those of this court in E.P. Muthu Rowther v. Muhammed Ali Rowther 1970 K.L.T. 1043, Kunjunni v. Jacob 1992 (2) K.L.T. 232 and Abdul Razack v. Anjaneyan 2002 (2) K.L.T. 670 that the averments in the plaint will have to be accepted prima facie for determining the payable court fee. The controversies raised in the written statement are not to influence the court while determining the correct court fee payable on the plaint. Section 43 of the Kerala Court Fees and Suits Valuation Act deals with various types of suits between landlords and tenants. The controversies raised in the written statement are not to influence the court while determining the correct court fee payable on the plaint. Section 43 of the Kerala Court Fees and Suits Valuation Act deals with various types of suits between landlords and tenants. Section 43(2) specifically provides for the court fee payable for suits for recovery of immovable property from a tenant including a tenant holding over after the termination of tenancy. The learned Munsiff has certainly noticed that the plaintiffs petitioners continue to maintain that the defendants respondents are their tenants and that if the averments in the plaint alone are looked into, the proper court fee payable will be under Section 43(2) of the Court Fee and Suits Valuation Act only. But according to him since it is conceded in the plaint itself that the plaintiffs had unsuccessfully moved the Rent Control Court for eviction and that court dismissed the petition for eviction filed finding that the defendants' denial of the plaintiffs' title and of the alleged landlord tenant relationship is bona fide, the plaintiffs have to value the suit under Section 30 which appears to be a residuary provision as regards the valuation of suits for recovery of possession. In short, the view of the learned Munsiff is that Section 43(2) of the Act will be attracted only when there is an admitted landlord tenant relationship between the plaintiffs and the defendants. According to the learned Munsiff, the plaintiffs are conscious of the necessity to establish their title which explains their prayer for recovery on the strength of title and in a case where it becomes necessary to establish the title apart from the plaintiff's status as landlord, Section 43(2) has no application. 6. I cannot agree with the learned Munsiff True, in Ext.P-2 order the learned Munsiff has given apparently good reasons to support his decision. The process of reasoning is also fairly sound. Nobody will be able to brand Ext.P-2 as a perverse order and ordinarily I would not have interfered with Ext.P-2 since this court exercises its supervisory jurisdiction under Article 227 only sparingly. The process of reasoning is also fairly sound. Nobody will be able to brand Ext.P-2 as a perverse order and ordinarily I would not have interfered with Ext.P-2 since this court exercises its supervisory jurisdiction under Article 227 only sparingly. But I notice that the ultimate decision under Ext.P-2 is against ratio of many a judicial precedent which were binding on the learned Munsiff laying down the principle that the court fee question is to be determined on the allegations in the plaint itself and that law allows a certain amount of latitude to the plaintiffs in the matter. I find that the order results in injustice/hardship to the plaintiffs who are now being compelled to pay a much higher amount by way of court fee. As already indicated, going by the averments in the plaint, notwithstanding the contentions which were raised by the defendants and notwithstanding the finding by the Rent Control Court that the defendants' denial of the plaintiffs' title and the landlord tenant relationship, the plaintiffs maintain the respondents to be their tenants. It may be correct to say that the finding of the Rent Control Court has attained finality and that it is accepting the said finding that the plaintiffs have instituted the suit. But finding of the Rent Control Court was not that the Landlord does not have title or that there is no rental arrangements between the plaintiffs and the defendants. In fact a finding that the landlord has no title or that there is no landlord tenant relationship between the parties to a Rent Control proceedings is outside the jurisdictional competence of the Rent Control Court under Section 11(1) of the Rent Control Act. [See Judgment of the Full Bench in Parthakumar v. Ajith Viswanathan 2006 (2) K.L.T. 250 (FB)]. The plaintiffs became obliged to approach the Civil Court to file the suit only because their rent control petition was dismissed by the Rent Control Court finding that the defendants' denial of the landlords' title and of the rental arrangements alleged by the landlords is bona fide. The plaintiffs became obliged to approach the Civil Court to file the suit only because their rent control petition was dismissed by the Rent Control Court finding that the defendants' denial of the landlords' title and of the rental arrangements alleged by the landlords is bona fide. In other words, the Rent Control Court found that it had no jurisdictional competence to adjudicate the complicated question as to whether the landlord has title and further as to whether there is landlord tenant relationship between the parties and virtually relegated the plaintiffs to the Civil Court for filing a suit as contemplated under second proviso to Section 11(1). 7. It is conceded before me by the learned counsel for the respondents and virtually noticed by the trial court also that the present suit has been filed under the second proviso to Section 11(1). Significantly it is only the landlord or at least a person who claims to be a landlord who is entitled to institutes such suits. I am of the view that the question of court fee payable on the plaint in such a suit should be decided accepting the averments in the plaint that the plaintiffs are the landlords and the defendants are the tenants to be correct prima facie. It is necessary in this context to notice the distinction between suits filed under 2nd proviso to Section 11(1) of the Act and other suits for recovery of possession of buildings situated in areas to which the Rent Control Act does not extend. In suits which specifically come within the ambit of the second proviso of Section 11(1) it would be necessary for the plaintiffs like the present petitioners to establish not only their title but also anyone of the eviction grounds provided for under Section 11 of the Rent Control Act. But in a suit for eviction filed by landlords against their tenants in respect of buildings in areas not covered by the Rent Control Act, at the most it will be necessary to establish the lease arrangement and perhaps its due termination also. In other words, in suits like the present one, the Rent Control Act will continue to govern for deciding whether or not to grant reliefs to the plaintiff. In other words, in suits like the present one, the Rent Control Act will continue to govern for deciding whether or not to grant reliefs to the plaintiff. The view of the learned Munsiff that the status of the plaintiffs cannot be accepted as that of landlord even for the purpose of determining the court fee cannot therefore be approved. The argument of Sri Chitambaresh that since in the present suit a more time consuming adjudication is necessitated by the requirement of establishing the title, the lease and also the existence of statutory eviction grounds, the plaintiffs have to be called upon to pay a higher court fee cannot receive acceptance. The learned counsel did not cite any precedents to support his argument that there is nexus or co-relation between the payable court fee and the extent of judicial time required for completion of the adjudication. It should be noticed that these are days when matters involving heavy stakes are being adjudicated upon by the statutory Tribunals where the court fee requirement is nominal. It should also be noticed that in spite of statutory time frame set for them, the Tribunals are unable to complete the adjudication within the time frame for so many reasons. The result of the above discussion is that the impugned order is set aside and it is held that the valuation of the suit presently made is proper. The court below is directed to dispose of the suit in accordance with law at its earliest. The writ petition is allowed as above.