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2012 DIGILAW 505 (UTT)

Lilawati v. Prem Lata

2012-08-29

B.S.Verma

body2012
JUDGMENT : B.S.Verma, J.(Oral) Heard learned counsel for the parties and perused the record. 2. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari to quash the order dated 1-2-2005 (Annexure No.1 to the petition) passed by respondent no.4, whereby the learned trial Court on Preliminary Issue No.6, framed in O.S. No. 177 of 2002, has held that the court fee paid by the plaintiff on the annual rent of the premises is proper. The Issue no. 6 has been decided in favour of the plaintiff and against the defendant. 3. Relevant facts giving rise to the present writ petition I brief are that Smt. Premlata and Kaushal Kishore, plaintiff-respondent nos. 1 and 2 filed a suit against the petitioners and Nagar Palika Parishad (respondent no.3 herein) in the court of Civil Judge (Junior Division) Haridwar, which was registered as O.S.No. 177 of 2002. In the suit, the plaintiffs have sought the relief for possession of the property detailed at the foot of the plaint. In the suit, the defendants-petitioners no. 1 and 2 filed their written statement jointly. In the written statement the defendants have raised a number of pleadings and in paragraph no. 47 thereof, the defendants have pleaded that the suit has been wrongly valued arbitrarily on Rs. 825/- while the valuation of the suit should have been made on the market value of the property in dispute and that the court has no pecuniary jurisdiction to try the present suit. 4. It appears that the trial Court has framed preliminary Issue No. 6 on the point of valuation of the suit and payment of court fee. The trial court while disposing of the Issue No. 6 has observed that from a perusal of the record it is evident that the suit has been valued at the rate of annual rent of Rs. 825/-, on which the court fee has been paid. The trial Court has decided the issue in favour of the plaintiffs by order dated1-2-2005, which gave rise to the present writ petition. 5. The main ground of challenge raised in this writ petition is that the impugned order is not tenable because the valuation of the suit for possession of property must be valued on the market value and not on the yearly rent. 6. 5. The main ground of challenge raised in this writ petition is that the impugned order is not tenable because the valuation of the suit for possession of property must be valued on the market value and not on the yearly rent. 6. Learned counsel for the petitioners in support of his contention that the suit for possession should have been valued on the market value of the property has placed reliance upon the judgment of the Allahabad High Court in the case of Virendra Nath Agrawal and another Vs. Addl. District Judge, IX Kanpur and others [1984 (1), Allahabad Rent Cases, Page 253]. 7. I have perused the judgment rendered by the Allahabad High Court. In the case before the Allahabad High Court, the Munsif by his order dated 20-2-1979 held that the dispute was in respect of tenancy rights and, therefore, the suit was rightly valued on the annual rent of the premises and the court-fee paid was sufficient. The defendants preferred a revision, which was dismissed by the impugned order of the learned Judge dated 20-8-1979. The contention of the petitioners in that writ petition was that the law requires the suit to be valued under Section 7(v)(ii) of the U.P. Court Fees Act according to the market value of the shop in question and in that even only the Civil Judge would have the jurisdiction to try the suit. The Allahabad High Court in paragraph 7 of the judgment has observed as under:- “7. Section 7(v) contemplates a suit for possession of lands, buildings or gardens and provides that in such suit the amount of Court-fee payable shall be according to the value of the subject-matter; that sub-clause (ii) of clause (v) of Section 7 provides that where the subject-matter is a building or garden, the Court-fee shall be paid according to the market value of the building or garden, as the case may be. The question, therefore, arises as to what was the subject-matter of the present suit. The relief claimed in the plaint was clearly that of possession over the shop. Therefore, the subject-matter is nothing but the shop. It does not matter what the plaintiff’s interest in the shop consists of, because the suit is not for possession of the lease-hold-rights those are intangible and are not capable of physical possession. The relief claimed in the plaint was clearly that of possession over the shop. Therefore, the subject-matter is nothing but the shop. It does not matter what the plaintiff’s interest in the shop consists of, because the suit is not for possession of the lease-hold-rights those are intangible and are not capable of physical possession. The tangible physical entity of which possession was sought is the shop; hence the subject-matter of the suit, so far as possession is concerned, is the shop. We are not concerned with the object of the suit but rather with its subject matter. The object may be that of enforcing only the tenancy rights of the plaintiff but the subject matter is the shop. The dim object underlying the plaintiff’s action is a matter of abstract speculation which is not germane to the realm of law Courts which exist primarily for the purpose of granting practical reliefs, arising with respect to some tangible subject matter. In the instant case such subject-matter is the shop or building of brick and mortar and not incorporeal jural rights. Thus, where a tenant brings a suit for possession of the shop against a third party, who has dispossessed him for the shop, the subject-matter of the suit is the shop itself and not the tenancy right of the plaintiff and, therefore, the Court-fee is payable under sub-clause (ii) of clause (v) of Section 7 of the Act on the market value of the shop.” 8. In the case at hand, the plaintiffs have pleaded in paragraph 20 of the plaint that the defendant nos. 1 and 2 illegally got their name entered and on 20-8-2001 during the pendency of O.S. No. 272 of 1989 Smt. Leelawati Vs. Premalata and others, took illegal possession of the shop in dispute and personated themselves to be the real tenants of the property. The plaintiffs have their filed the suit for possession against the defendants. The facts of the case at hand are almost identical to the facts of the case before the Allahabad High Court in the case of Virendra Nath Agrawal (supra), therefore, the case-law is fully applicable to the facts of the present writ petition. The plaintiffs have their filed the suit for possession against the defendants. The facts of the case at hand are almost identical to the facts of the case before the Allahabad High Court in the case of Virendra Nath Agrawal (supra), therefore, the case-law is fully applicable to the facts of the present writ petition. In the case at hand, the suit has been filed for possession, therefore, the court fee payable would be on the market value of the subject-matter of the suit, i.e. the shop itself described at the foot of the plaint and not on the annual rent. 9. The learned trial Court while deciding preliminary Issue no.6 has lost sight of the averment made by the plaintiffs in paragraph no.20 of the plaint that the defendants have ousted the plaintiffs from the disputed shop and took illegal possession over the disputed shop on 20-8-2001. The trial court has not even dealt with the pleadings raised in the written statement that the court fee was payable on the market value of the property and has held that the court fee paid on the basis of annual rent is sufficient. 10. For the reasons above, the impugned order dated 1-2-2005 passed by the trial Court is liable to be set aside. The Court fee in the suit filed for possession by the plaintiffs would be payable on the market value of the shop in dispute. The writ petition, therefore, deserves to be allowed. 11. The writ petition is allowed. The impugned order dated 1-2-2005 passed on Issue No.6 in the suit is set aside. The court fee shall be payable on the market value of the shop in question. The matter is remanded to the trial Court to decide afresh the market value of the shop in question in accordance with law and in the light of the observations made above, so that the plaintiffs may be directed to pay the Court fee as per market value of the shop in question. 12. Interim order dated 15-4-2005 passed by this Court is vacated.