Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 2489 (RAJ)

Gopal Dave v. Hash Mukh

2011-11-17

GOPAL KRISHAN VYAS

body2011
Hon'ble VYAS, J.—In this writ petition, filed under Article 227 of the Constitution of India, the petitioner has prayed for quashing impugned order dated 16.5.2009 (Annex. 5) passed by Civil Judge (Jr. Dn.) & Judl. Magistrate (First Class), Desuri (District Pali) in Civil Original Suit No. 7/02. 2. As per facts of the case, the petitioner preferred suit against the respondents before the trial Court for permanent injunction, in which, it is prayed that being tenant the petitioner is in possession of house at village Narlai (Tehsil Desuri) in the locality of Mohalla Kumharon-ka-Bas and respondent-defendants may be restrained from evicting the petitioner-plaintiff without taking recourse to law. The said suit was filed in the month of February 2002. Thereafter, during the pendency of the suit, the petitioner was forcibly evicted from the house in question, therefore, an amendment application was filed by the petitioner-plaintiff under Order 6 Rule 17, C.P.C. and the said application was allowed by the trial Court. Thereafter, necessary amendments were made in the suit. 3. The petitioner filed an application under Section 151, C.P.C. on 21.12.2007, in which, it is stated that monthly rent was Rs. 125/- so 12 months' rent is Rs. 1,500/-, therefore, while including Rs. 800/- for mandatory injunction, the total value of the suit was determined as Rs. 2,300/-, therefore, court-fee stamp of Rs. 153/- filed in the suit in accordance with the Rajasthan Court Fee & Suits Valuation Act. 4. In reply to the application filed by the petitioner, the respondents submitted that the plaintiff has change the mode of the suit from suit for permanent injunction to suit for possession and there is no relationship of landlord and tenant in between respondent No. 1 from whom possession is prayed to be taken, therefore, the plaintiff is required to file court fee upon the cost of the house which is Rs. 3,00,000/-; and, as per Section 29 of the Act, court-fee is to be filed upon half of the cost of the premises in question. The learned trial Court vide the impugned order accepted the reply filed by the respondents and directed the petitioner-plaintiff to deposit court-fee upon market value of the property. 5. 3,00,000/-; and, as per Section 29 of the Act, court-fee is to be filed upon half of the cost of the premises in question. The learned trial Court vide the impugned order accepted the reply filed by the respondents and directed the petitioner-plaintiff to deposit court-fee upon market value of the property. 5. Learned counsel for the petitioner while challenging the order impugned submits that as per Section 41 of the Act of 1961, if the suit in between landlord and tenant is filed for recovery of possession of the property from which the tenant has been illegally ejected by the landlord, the fee shall be levied on the amount of rent for the immovable property to which the suit relates payable for the year next before the date of presenting the plaint. Therefore, in the facts and circumstances of the case, Section 29 of the Act of 1961 will not apply because if the initial suit has been filed for possession, then, court fee is required to be levied on the basis of market value of the property; but, here, in this case, the facts are altogether different for the reason that initially the suit was filed for permanent injunction for direction to the defendant not to evict the plaintiff forcibly from the property in question but, during the pendency of the suit, he was forcibly evicted but without considering the above fact the order impugned has been passed. In this view of the matter, the trial Court has committed gross illegality while not considering the entire facts of the case in right perspective, therefore, the impugned order deserves to be quashed. 6. Per contra, learned counsel for respondent No. 1 submits that after amendment in the suit initially filed for permanent injunction the mode of the suit is changed from suit for permanent injunction to suit for possession, therefore, Section 29 will apply and trial Court has not committed any error while directing the petitioner-plaintiff to deposit court fee on the basis of market value of the property in question, therefore, the order impugned does not suffer from any infirmity or illegality and writ petition filed by the petitioner may be dismissed. 7. After hearing learned counsel for the parties, I have perused entire record of the case. 8. 7. After hearing learned counsel for the parties, I have perused entire record of the case. 8. Admittedly, initially when the suit was filed by the petitioner-plaintiff the petitioner was in possession of the premises in question being tenant and after filing of the suit he was forcibly ejected from the premises as per his contention, therefore, amendment application filed under Order 6 Rule 17, C.P.C. was allowed and following prayer was incorporated by the petitioner in the suit: ^^¼6½ izkFkZuk oknh bl izdkj gS ¼v½ fd oknh ds i{k esa izfroknhx.k ds fo:) oknh dk dCtk iqu% fdjk;slqnk ifjlj ij djokus] LFkk;h fu"ks/kkKk dh vkKfIr bl vej dh tkjh Qjekos fd izfroknhx.k oknh dks okn i= ds in la[;k ,d esa of.kZr iM+kSfl;ksa fcpys edku dk dCtk oknh dks izfroknhx.k ls iqu% fof/k vuqlkj fnyok;k tkos rFkk izfroknhx.k oknh dks fookfnr ifjlj ls fcuk fof/kd izfØ;k ls tcju voS/kkfud rjhds ls csn[ky djus dh dksbZ dk;Zokgh u rks Lo;a djs rFkk u gh fdlh ,tsUV izfrfuf/k vFkok fu;ksftr vf/kdkjh ls gh djs djkosaA ¼c½ fd [kpkZ okn oknh dks izfroknhx.k ls fnyok;k tkosaA ¼l½ vU; nknjlh tks oknh ds fgr esa gks lkfnj QjekosaA** 9. In my opinion, there is force in the contention of the petitioner that in this case Section 29 will not apply and Section 41 will apply which reads as under: "Sec. 41.Suits between landlord and tenant.- (1) In the following suits between landlord and tenant, namely:- (a) for the delivery by a tenant of the counter-part of a lease; (b) for the enhancement of rent; (c) for the delivery by a landlord of a lease; (d) for the recovery of possession of immovable property from which a tenant has been illegally ejected by the landlord; and (e) for establishing or disproving a right to occupy; fee shall be levied on the amount of rent for the immovable property to which the suit relates payable for the year next before the date of presenting the plaint. (2) In a suit for recovery of immovable property from a tenant including a tenant holding over after the termination of a tenancy, fee shall be computed on the premium, if any, and on the rent payable for the year next before the date of presenting the plaint. Explanation.- Rent includes also damages for use and occupation payable by a tenant holding over." 10. Explanation.- Rent includes also damages for use and occupation payable by a tenant holding over." 10. Upon perusal of Section 41, it is abundantly clear that as per Section 41, clause (d), for suits between landlord and tenant for recovery of possession of immovable property from which the tenant has been illegally ejected by the landlord the tenant is required to furnish court-fee upon the amount of rent for immovable property, for which, the suit relates, payable for the year next before the date of presenting the suit. Therefore, upon facts of the instant case, I am of the opinion that the order passed by the trial Court is totally erroneous and contrary to the basic provisions of law which is totally ignored by the trial Court in this case. 11. Hence, this writ petition is allowed. The order impugned dated 16.5.2009 (Annex. 5) is hereby quashed and set aside. The trial Court is directed to accept the court-fee in the suit filed by the petitioner in accordance with Section 41(d) of the Rajasthan Court Fee & Suit Valuation Act, 1961 and proceed in accordance with law for trial. 12. No order as to costs.