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Karnataka High Court · body

2016 DIGILAW 47 (KAR)

Sunil v. Hotel Arpan

2016-01-13

B.S.PATIL

body2016
ORDER : 1. In this writ petition, petitioners are challenging the order passed by the court below rejecting I.A.No.7 filed by them under Order VII Rule 10 of Code of Civil Procedure requesting the Court to return the plaint by holding that it has no pecuniary jurisdiction to try and entertain the suit. The defendants had also urged that the suit was not properly valued and the court fee paid was not proper and correct. The Trial Court has negatived this contention of defendants as well holding that the court fee paid by the plaintiff by valuing the suit under Section 41(1)(d) of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as ‘Court Fees Act’, for short) was correct. 2. The suit is filed by respondents 1 to 4 against the petitioners herein and also respondent No.5 under Section 6 of the Specific Relief Act seeking a direction to the defendants to immediately hand over vacant possession of the suit property to plaintiffs alleging that defendants had illegally dispossessed the plaintiffs. Case of the plaintiffs has been that they were tenants in possession of the suit schedule premises and the defendants had illegally dispossessed them on 1st February 2014. 3. Defendants have filed written statement and have resisted the suit. They have contended inter alia that valuation made of the suit property and the relief sought under Section 41(1)(d) was not correct, as Section 28 of the Court Fee Act provided that in a suit for possession of immovable property filed under Section 6 of the Specific Relief Act, fee shall be computed on one half of the market value of the property or on Rs.1,000/- whichever was higher. In fact, on this aspect, the Court below had earlier passed an order in favour of the plaintiffs which was challenged before this Court and this Court remanded the matter for fresh consideration by providing an opportunity to both side, vide order dated 11th August 2014 passed in W.P. No.105177/2014. Thereafter, the defendants filed application under Order VII Rule 10 of CPC contending inter alia that market value of the suit property was Rs.1,79,05,674/and therefore, the Court of Civil Judge had no pecuniary jurisdiction and hence, plaint may be returned to the plaintiffs to present it before the proper Court having pecuniary jurisdiction to try the suit. Thereafter, the defendants filed application under Order VII Rule 10 of CPC contending inter alia that market value of the suit property was Rs.1,79,05,674/and therefore, the Court of Civil Judge had no pecuniary jurisdiction and hence, plaint may be returned to the plaintiffs to present it before the proper Court having pecuniary jurisdiction to try the suit. The Trial Court has heard both parties and has passed the impugned order. Aggrieved by the same, defendants are before this Court. 4. I have heard Sri M.G.Naganuri, learned counsel for petitioners and Sri Sachin S.Magadum, learned counsel appearing for respondents 1 to 4. 5. On careful perusal of the pleadings and the impugned order, the only point that arises for my consideration is, Whether the Court below was right and justified in holding that the valuation made by the plaintiffs of the relief sought in the suit under Section 41(1)(d) of the Karnataka Court Fees and Suits Valuation Act, 1958 is just and correct. 6. Section 28 of the Court Fees Act reads as under: “ 28. Suits for possession under the Specific Relief Act, 1877: In a suit for possession of immovable property under section 9 of the Specific Relief Act, 1877 (Central Act I of 1877), fee shall be computed on one half of the market value of the property or on rupees one thousand whichever is higher.” 7. Section 9 of the Specific Relief Act, 1877 (Central Act I of 1877) to which reference has been made in Section 28 is now found in Section 6 of the Specific Relief Act, 1963 (47 of 1963), which reads as under: “ 6. Suit by person dispossessed of immovable property.(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought – (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (2) No suit under this section shall be brought – (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.” 8. It is evident from the provisions contained in Section 6 of the Specific Relief Act, 1963 that person who has been illegally dispossessed without his consent of any immovable property is enjoined with a right to recover possession of the said property by filing a suit within six months from the date of dispossession and that no appeal shall lie against the decree passed in such suit. Another special provision is that notwithstanding any title that may be set up in such suit, the person dispossessed would be entitled to institute the suit for recovery of possession. The said suit has to be tried by adopting summary proceedings. 9. The plaintiff has chosen to institute the suit taking recourse to Section 6 of the Specific Relief Act, contending inter alia that though he was the tenant validly inducted into the property without termination of the tenancy, he was illegally dispossessed by the landlord. While valuing the property for the purpose of court fee and jurisdiction, he has taken recourse to Section 41(1)(d) of the Court Fees Act. The said provisions states that in the case of suits between landlord and tenant filed before the civil court for recovery of possession of immovable property from which the tenant has been illegally ejected by the landlord, 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, plaintiffs, keeping in view the annual rent of Rs.6,000/- at the rate of Rs.500/- per month, for the purpose of payment of court fee and jurisdiction, have paid the court fee of Rs.150/- on the sum of Rs.6,000/. 10. Section 41(1)(d) of the Court Fees Act deals with the suit for ‘recovering occupancy of immovable property from which the tenant has been illegally ejected by the landlord’. 10. Section 41(1)(d) of the Court Fees Act deals with the suit for ‘recovering occupancy of immovable property from which the tenant has been illegally ejected by the landlord’. Therefore, in the normal circumstances, had the plaintiffs filed a regular suit seeking possession/occupancy of suit property alleging illegal eviction they could have valued the relief sought as per Section 41(1)(d), but here is a case where the suit has been specifically filed under Section 6 of the Specific Relief Act, 1963. Section 28 of the Court Fees Act stipulates that where a suit for possession of immovable property has been filed under Section 9 (present Section 6) of the Specific Relief Act, fee shall be computed on one half of the market value of the property or on Rs.1,000/- whichever is higher. When a special provision is made governing the suit filed under Section 6 of the Specific Relief Act, the plaintiffs cannot take recourse to the general provisions made under Section 41(1)(d). The intention of the legislature in enacting Section 28 of the Court Fees Act and making it applicable to suits filed under Section 9 (present Section 6) of the Specific Relief Act is to exclude the application of general provision which applies to valuation of regular suits filed by persons seeking possession who have been illegally dispossessed. If Section 28 is not understood in this sense, then the incorporation of Section 28 would be rendered unnecessary. 11. Unless there is any ambiguity or apparent inconsistency, the principles of interpretation of statutes suggest that the provision has to be considered based on its plain meaning. The plain meaning of the language in Section 28 makes it clear that all suits filed under Section 9 of the Specific Relief Act have to be valued as per Section 28 by computing the fee on onehalf of the market value of the property or Rs.1,000/- whichever is higher. 12. The fee payable for the suits valued under Section 28 of Court Fees Act is higher than the one payable under Section 41(1)(d). In the instant case, merely because plaintiff is required to pay higher court fee, he cannot be permitted to value the suit under Section 41(1)(d), because the law does not give him a choice to value the suit either under Section 28 or under Section 41(1)(d). In the instant case, merely because plaintiff is required to pay higher court fee, he cannot be permitted to value the suit under Section 41(1)(d), because the law does not give him a choice to value the suit either under Section 28 or under Section 41(1)(d). The Trial Court has failed to take note of the purport and intent of the legislature in enacting Section 28. Therefore, order passed by the Trial Court is erroneous. The plaintiff is required to value the relief sought under Section 28 by paying court fee on onehalf of the market value of the property or on Rs.1,000/- whichever is higher. 13. Coming to the application filed for return of the plaint, as could be seen from the orders of the Court below, there is no finding recorded with regard to the market value of the property involved in the suit. The Trial Court has to record a finding by providing opportunity to both parties regarding actual market value of the suit property which will decide the question regarding quantum of court fee to be paid and the pecuniary jurisdiction. If the market value of the suit property were to be more than Rs.5,00,000/, the Court below has to return the plaint to be presented before the court having jurisdiction. If it is less than Rs.5,00,000/- then the Court below will have jurisdiction to proceed with the case, after providing an opportunity to the plaintiffs to pay proper court fee. The point raised is answered accordingly. Writ petition is partly allowed. The matter is remitted to the court below for fresh consideration in the light of the observations made above.