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2013 DIGILAW 109 (KER)

K. R. Rajaram v. C. S. Shibu

2013-02-13

S.S.SATHEESACHANDRAN

body2013
Judgment :- S.S. Satheesachandran, J. 1. Defendant/Petitioner seeks to challenge the order of the Munsiff’s Court, Ernakulam holding that the court fee paid in the suit by the plaintiff respondent is sufficient, invoking the visitorial jurisdiction of this Court under Article 227 of the Constitution. Ext.P4 is the order challenged in this petition. 2. Short facts necessary for disposal of this petition can be summed up thus:- Plaintiff with his brother was in occupation of a room in a building owned by the defendant. On demand from the defendant for surrender of the leased premises, to facilitate the reconstruction of a new building after demolishing the old structure, on terms agreed upon and execution of Ext.P5 agreement plaintiff surrendered the building. Ext. P5 agreement provided that plaintiff will be given a room in the ground floor of the reconstructed building, with its plinth area specified, for a monthly rent of Rs.2700/- and that reconstruction of the building will be completed within a period of 1½ years in terms of the approved plan obtained by the defendant. The defendant defaulted in reconstructing the building after getting vacant possession and its demolition, was the case of the plaintiff to seek for specific performance of Ext.P5 agreement to direct the defendant to reconstruct the building within a period of six months and lease out a room as agreed upon. In the alternative plaintiff sought for a decree to reconstruct the building at his cost, and adjust the expenses thereof in the rent payable if the defendant failed to obey the decree to reconstruct the building. Suit was resisted by the defendant raising various contentions including a plea that suit is under valued and sufficient court fee has not been paid. Ext.P2 is the original written statement filed by the defendant. He later filed an additional written statement (Ext.P3) in which some more contentions were raised to reinforce the objections in the original written statement that the suit is under valued and court fee paid insufficient. Plaintiff thereupon got the plaint amended by which some of the reliefs canvassed earlier were given up and other relief remoulded to press for a decree of specific performance of Ext.P5 agreement with an alternative prayer to permit the plaintiff to put up reconstruction. Plaintiff thereupon got the plaint amended by which some of the reliefs canvassed earlier were given up and other relief remoulded to press for a decree of specific performance of Ext.P5 agreement with an alternative prayer to permit the plaintiff to put up reconstruction. Taking note of the amended plaint and reliefs canvassed there under learned Munsiff concluded that many of the objections raised by the defendant to challenge the valuation of the suit and also insufficiency of court fee paid have become redundant and not worthy of consideration. Valuation of the suit and court fee paid by the plaintiff computing the aggregate amount for an year on the rent agreed to be paid by the plaintiff for occupation of the room in the reconstructed building under Ext.P5 agreement under section 42 (c) of the Kerala Court Fees and Suit Valuation Act, for short the Act, was found to be proper and sufficient to repel the challenges raised by the defendant. Ext. P4 order so passed by the learned Munsiff is improper, unsustainable and suffer from serious infirmity is the case of the defendant for filing this petition. 3. I heard the counsel on both sides. 4. Learned counsel for petitioner contended that valuation of the suit property should be made not on the annual rent agreed to be paid for occupation of the room in the reconstructed building fixing in Ext.P5 agreement, but, with reference to the market value of the property where the new building is to be put up. In the case in hand. According to counsel, where specific performance of Ext.P5 agreement is sought for, which is one for enforcement of a promise made by the landlord to provide a room in a reconstructed building the consideration for the promise has a market value and it is the market value of the property. A fractional interest in such property alone the tenant will obtain under the promise of the landlord according to the counsel would not enable him to value the consideration of such promise differently from the market value of the property, and, on the rent agreed to be paid under Ext.P5 agreement. A fractional interest in such property alone the tenant will obtain under the promise of the landlord according to the counsel would not enable him to value the consideration of such promise differently from the market value of the property, and, on the rent agreed to be paid under Ext.P5 agreement. In a case where suit claim is over a restricted or fractional interest in a property having market value, then the value of the property for the purpose of valuation of the suit has to be calculated with reference to the value of the restricted or fractional interest, and court fee payable in such suit has to be computed in terms of Section 7(4) of the Act, submits, the counsel. Learned Munsiff has gone wrong in holding that the suit has to be valued under section 42 (c) of the Act and passing Ext.P4 order upholding the valuation made and court fee paid by the plaintiff as sufficient, according to counsel. 5. The relief canvassed in the amended plaint reads thus:- “Issue a decree of specific performance of the agreement dated 21.11.2008 directing the defendant to construct the building as contemplated in the agreement within a period of six months from the date of decree and there upon to put the plaintiff in possession by way of lease for an extent of 10 sq. Meters area in the said building facing the Karimpatta Cross Road for a monthly rent of Rs.2,700/-” failing which, plaintiff may be permitted to reconstruct 10 Sq.meters of shop room in the plaint schedule property at his own cost and adjust the same with monthly rent instalments.” Ext.P4 order passed by the learned Munsiff would show that when the plaint, was originally presented, before its amendment, a declaration of the defendant’s obligation to perform Ext.P5 agreement and also a declaration of the plaintiff’s entitlement to reconstruct the building in terms of P5 agreement had been sought for. On amendment of the plaint the suit strictly falls within Section 42 of the Act for the purpose and valuation and payment of court fee is not a matter in dispute. Controversy over valuation and court fee is on the question whether plaintiff has to value the suit and pay the court fee in terms of Section 42 (c) or 42 (e) of the above Act. 6. Section 42(c) and (e) of the Act reads thus:- “42. Controversy over valuation and court fee is on the question whether plaintiff has to value the suit and pay the court fee in terms of Section 42 (c) or 42 (e) of the above Act. 6. Section 42(c) and (e) of the Act reads thus:- “42. Suits for specific performance --- In a suit for specific performance, whether with or without possession, fee shall be payable- (a) ……….. (b) ………. (c) in the case of a contract of lease, computed on the aggregate amount of the fine or premium, if any, and of the average of the annual rent agreed to be paid. (d) …………………. (e) in other cases, where the consideration for the promise sought to be enforced has a market value, computed on such market value, or where such consideration has no market value, at the rates specified in Section 50. ((a), (b) & (d) omitted) Whether valuation and court fee payable in the present case covered by Ext.P1 plaint is under 42 (c) or 42(e) of the Act alone is the question to be answered. Ext.P5 agreement entered by the plaintiff with the defendant is sought to be enforced in the suit by a decree of specific performance. Ext. P5 is only a contract of lease. A contract of lease is merely in agreement that a lease will be entered into on a future date. Under an agreement of lease parties bind themselves, one to grant and the other to accept a lease. There is no lease in presenti under an agreement of lease which distinguishes and differentiate it from a lease. That is the reason whatever be the amount specified as the future rent payable for grant and acceptance of a lease at a future date, the agreement of lease entered by parties, for its acceptance, no registration is called for. Consideration in such a document is not the future rent that is agreed upon by the parties, nor, the market value of the property or fractional interest of the property but only reciprocal promises made in relation to the grant and acceptance of a lease on a future date pursuant to such agreement of lease. It is a contract agreement executor in nature falling under Section 2(f) of the Contract Act where under the promises which form consideration or part of the consideration from one to the other are called reciprocal promises. It is a contract agreement executor in nature falling under Section 2(f) of the Contract Act where under the promises which form consideration or part of the consideration from one to the other are called reciprocal promises. An agreement of lease which is based on such reciprocal promises of the parties which form the consideration of such an agreement, does not even call for any amount being paid either as earnest or security as the impact of the reciprocal promises is binding on the parties for a concluded contract of lease in a future date. When that be so consideration of that agreement of lease cannot have any nexus with the market value of the property over which, or fraction of which, a lease or a concluded contract at a future date is to be entered by the parties. So much so Section 42(e) of the Act does not have any application in determining the valuation of a suit for specific performance of a contract of lease, or the court fee payable thereof. Where a specific provision has been made under section 42 (c) of the Act that court fee has to be calculated in a contract of lease on the aggregate amount of fine or premium, if any, and of the average of the annual rent agreed to be paid and, that alone can be followed. So much so the valuation of the suit made with reference to the rent agreed to be paid under the contract of sale and court fee calculated and paid in the present case in terms of Section 42 (c) of the Act as rightly and correctly found by the learned Munsiff, is proper and valid. There is no merit in the challenges against Ext.P4 order, and the O. P. is dismissed.