Research › Search › Judgment

Madras High Court · body

2023 DIGILAW 3365 (MAD)

S. Dhanushkodi v. K. Sasikumar

2023-12-11

N.SATHISH KUMAR

body2023
ORDER : This application has been filed praying to decide the preliminary issues as to whether the suit is overvalued as it has got to be valued under Section 43(d) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 and, if the suit has been overvalued, whether the same has to be transferred to the file of the City Civil Court, Chennai to try the same on merits. 2. For the sake of convenience and to avoid unnecessary confusion or ambiguity in the discussion, the parties will hereinafter be referred to as they are arrayed in the civil suit. 3. The plaintiff is the proprietor of Sri Vari Motors. The suit has been filed for restoration of possession of the schedule mentioned premises to the plaintiff; permanent injunction restraining the defendants, their men, agents and any other persons claiming under or through them from renting or leasing or encumbering the schedule mentioned property; granting permanent injunction restraining the defendants, their men, agents, or any other persons claiming under or through them from continuing in possession of the schedule mentioned property and consequently, put the plaintiff in possession of the schedule mentioned property; granting mandatory injunction directing the defendants or their men, or agents to handover all the original R.C. Books, Documents, Spares and all other materials belonging to the plaintiff that are kept in the schedule mentioned premises; and for costs of the suit. 4. It is the case of the plaintiff that he was a tenant under the defendants from 2012 in respect of the suit schedule mentioned commercial building, measuring an extent of 4100 square feet on Ground Floor and 2700 square feet on First Floor situated at D.No.223, T.H.Road, New Washermenpet, Chennai 600081. There was common open passage measuring 700 square feet available for the use of all the tenants including the plaintiff, owners and co-occupants. There was a rental agreement dated 01.04.2017 was entered into between the plaintiff and the defendants for a period of five years commencing from 01.04.2017 to 31.03.2022. The monthly rent was fixed at Rs.1,35,000/- per month and the plaintiff had paid a sum of Rs.25,00,000/- as security deposit to the defendants. Until the lock-down was announced in March, 2020 due to Covid-19 pandemic, the plaintiff was carrying on his business peacefully in the schedule mentioned premises. The monthly rent was fixed at Rs.1,35,000/- per month and the plaintiff had paid a sum of Rs.25,00,000/- as security deposit to the defendants. Until the lock-down was announced in March, 2020 due to Covid-19 pandemic, the plaintiff was carrying on his business peacefully in the schedule mentioned premises. While so, in March, 2020, the schedule mentioned premises was blocked with metal sheets for the work undertaken for Chennai Metro Rail Limited and due to lock-down the plaintiff was unable to carry on his business in the suit schedule premises. 5. While so, on 13.04.2021, the defendants unlawfully broke open the shutter lock of the showroom and illegally occupied and took over possession of the suit schedule premises by unlawful means. Hence, the plaintiff had no option but to file the suit for restoration of possession and for other reliefs. 6. The defendants denied the averment in the plaint that the plaintiff was illegally dispossessed. It is the case of the defendants that the plaintiff himself had voluntarily surrendered the possession of the rented-out premises. It is the further case of the defendants the lease period was for three years and the agreement had been altered by the plaintiff. The material alterations made in the agreement are i) at page 4, para 1, the word “three” has been altered into “five”; (ii) at the same page same para, “2020” has been altered into 2022; (iii) the word “security deposit cash of Rs.50,000/- has been altered into Rs.25,00,000/-” ; (iv) at page 5, 4th line “Rs.10,50,000/- has been altered into Rs.25,00,000/-; (v) at page 5, para 1, “31.03.2010” (which was a mistake originally crept in) has been altered into 31.03.2022; (vi) at the same para “Rs.10,50,000/-” has been altered into Rs.25,00,000/-; (vii) 4th para at page 5 has been completely left out; and in many places alterations has been done in the layout of letter from pages 3 to 8. The defendants, therefore, disputed the claim of the plaintiffs. Besides denying the suit claim, the defendants urged this court to decide at first the preliminary issue whether the suit has been overvalued. 7. It is the case of the applicants/defendants that the plaintiff has purposely overvalued the suit in respect of the relief of recovery of possession of the property from which he has been illegally ejected by the landlord by computing the court-fees on the market value of the property. 7. It is the case of the applicants/defendants that the plaintiff has purposely overvalued the suit in respect of the relief of recovery of possession of the property from which he has been illegally ejected by the landlord by computing the court-fees on the market value of the property. The plaintiff has shown the market value of the property as Rs.1,00,10,000/- based on the certificate issued by SSM Engineering. According to the applicant/defendants the suit for recovery of possession of the property by tenant out to have been valued only under Section 43(1)(d) and not under Section 29 of the Tamil Nadu Court-Fees and Suit Valuation Act, 1955. Even as per the plaint the value has been shown Rs.1,00,10,000/- and court fees of Rs.54,525/- on one-half of the market value of the property and, even then suit cannot be maintained before this court. Hence, the present application to try the issue of valuation and decide the pecuniary jurisdiction of this court to try the suit. 8. No counter affidavit has been filed by the plaintiff. 9. Heard both sides. 10. The learned counsel for the defendants would submit that the plaintiff has got the market value of the suit premises ascertained as Rs.1, 00, 10,000/- with the assistance of an engineering company and he had deliberately overvalued the suit in respect of the relief of recovery of possession by computing the court-fees on the market value of the suit property to fix the pecuniary jurisdiction of this court. According to the learned counsel, suit for recovery of possession of the property by the tenant ought to have been valued only under Section 43(d) of the Tamil Nadu Court-Fees and Suits Valuation Act for the purpose of court-fee and not under Section 29 of the Tamil Nadu Court-Fees and Suits Valuation Act as done by the plaintiff. As such, court-fees should have been paid under Section 43(d) on one-half of the market value of the property and if that be so, suit cannot be maintained before this court and it must be transferred to the file of the City Civil Court, Chennai. 11. As such, court-fees should have been paid under Section 43(d) on one-half of the market value of the property and if that be so, suit cannot be maintained before this court and it must be transferred to the file of the City Civil Court, Chennai. 11. The learned counsel for the defendants would submit that the plaintiff being tenant suit for recovery of possession of tenanted premises from which a tenant has been illegally ejected by the defendants ought to have been valued as per section 43 of the Court-Fees Act for the purpose of court-fee value of the suit claim would be at the annual rentand 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. Whereas the suit has been valued under Section 29 of the Court-Fees Act and paid court-fee on one-half of the market value of the property. Thus, according to the learned counsel, when there is a special provision available under the statute to value the suit claim, general provision under Section 29 has to yield to the special provision under the Tamil Nadu Court-Fees and Suits Valuation Act, 1955. Therefore, he would submit that suit is not maintainable before this court and at the most it could be maintained before the City Civil Court, Chennai. 12. Per contra, the learned counsel for the plaintiff would vehemently contend that the suit has been filed under Section 6 of the Special Relief Act, 1963 which is a special enactment and special remedy for illegal dispossession is a suit under Section 6 of the Specific Relief Act for possession of immovable property. Fee shall be computed on one-half of the market value of the property or on rupees eight hundred, whichever is higher. The market value of the property was determined as Rs.1,00,10,000/- and therefore, according to the learned counsel, the plaintiff has valued the suit under Section 29 of the Court-Fees Act and paid court fee on one-half of the market value of the property of Rs.50,05,000/- which cannot be said to be illegal. Thus, the suit is very well maintainable before this court, the learned counsel for the plaintiff contended. 13. Thus, the suit is very well maintainable before this court, the learned counsel for the plaintiff contended. 13. The said suit has been filed by the tenant against the landlords for recovery of possession of the tenanted premises from which the tenant has been allegedly ejected under Section 6 of the Specific Relief Act, 1963 and for other reliefs. It is the specific case of the plaintiff/tenant that during the existence of the tenancy he was illegally disposed in 2021. Therefore, he had no other option but to file the suit under Section 6 of the Specific Relief Act for recovery of possession. 14. Section 6 of the Specific Relief Act, 1963, provides for suit by person dispossessed of immovable property. Under this provision, if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person through whom he has been in possession or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. Clause (a) of Subsection (2) of Section 6 deals with limitation, according to which, no suit under section 6 shall be brought after the expiry of six months from the date of dispossession. 15. Section 29 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, provides for suits for possession under the Specific Relief Act, 1963 which says that in a suit for possession of immovable property under Section 6 of the Specific Relief Act, 1963, fee shall be computed on one-half of the market value of the property or on rupees eighth hundred, whichever is higher. 16. It is needless to state that payment of court-fee should not normally be left to the choice of a party whether a suit would be decided a District Munsif or in a superior court nor, it should not be left to the litigant to determine what court fee he would pay by merely manipulating allegations to claim relief. The court fee has to be paid in accordance with the statute. 17. Section 15 of the Code of Civil Procedure stipulated that every suit shall be instituted in the court of the lowest grade competent to try it, according to the pecuniary jurisdiction. 18. The court fee has to be paid in accordance with the statute. 17. Section 15 of the Code of Civil Procedure stipulated that every suit shall be instituted in the court of the lowest grade competent to try it, according to the pecuniary jurisdiction. 18. Section 43 (1) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, deals with the suits between landlords and tenant which provision reads as under:- “43. Suits between landlord and tenant (1) In the following suits between landlord and tenant, namely:- (a) for the delivery by a tenant of the counterpart of a lease or for acceptance of patta in exchange for amuchilika; (b) for enhancement of rent; (bb) in respect of the transferred territory, for abatement of rent, where it is not coupled with any other relief; (c) for the delivery by a landlord of a lease or for obtaining a patta in exchange for a muchilika; (d) for recovering occupancy of immovable property from which a tenant has been illegally ejected by the landlord; (e) for establishing or disproving a right of occupancy; 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.” 19. Clause (d) of Sub-section (1) of Section 43 of the Tamil Nadu Court- Fees and Suits Valuation Act, 1955 specifically deals with suit for recovering occupancy of immovable property from which a tenant has been illegally ejected by the landlords and in such case, court-fees 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, it is very clear that in a suit by a tenant for recovery of tenanted premises from the landlords alleging that he was illegally ejected from the tenanted premises, court-fees shall be levied on the annual rental value. This provision is a special provision dealing with the suits between the landlord and tenant. 20. Therefore, it is very clear that in a suit by a tenant for recovery of tenanted premises from the landlords alleging that he was illegally ejected from the tenanted premises, court-fees shall be levied on the annual rental value. This provision is a special provision dealing with the suits between the landlord and tenant. 20. It is the clear case of the plaintiff that he is the tenant under the defendants and the relationship between them as tenant and landlords is still in existence and therefore, for recovery of possession of the tenanted premises from which he has been illegally ejected by the landlords, and therefore, court-fees ought to have been computed as per Section 43 of the Tamil Nadu Court- Fees and Suits Valuation Act, 1955 only and not by general provision available in Section 29 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955. No doubt, Section 29 deals with suit filed under the Specific Relief Act, 1963. It is relevant to note here that when the statute provides for special provision for payment of court-fees in respect of suit between tenant and landlords even for recovery of possession of the tenanted premises from which he has been allegedly ejected by the landlords, court-fees shall be paid only as per the special provision available under the Act. 21. It is relevant to extract hereunder Section 9 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955: - 9 - Documents falling under two or more descriptions.- Subject to the provisions of the last preceding section, a document falling within two or more descriptions in this Act shall, where the fees chargeable thereunder are different, be chargeable only with the highest of such fees: Provided that, where one of such descriptions is special and another general, the fee chargeable shall be the fee appropriate to the special description. 22. The above provision thus would make it clear that when special provision is provided for, court-fees chargeable shall be as per the special provision in the Act. 23. 22. The above provision thus would make it clear that when special provision is provided for, court-fees chargeable shall be as per the special provision in the Act. 23. In this regard, it is relevant to note that in the case of Ramesh Srinivasa Jannu v. Srinivas Vittoba Jannu [ILR 2001 KAR 1215], in an identical situation, a Division Bench of Karnataka High Court, while dealing with the provision in Section 9 of the Karnataka Court-Fees and Suits Valuation Act, 1955 which is in pari materia to Section 9 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, has held that only special provision would apply. 24. Considering the above legal position, this court is of the view that when the special provision is available under the statute for valuing a suit, suit ought to have been valued only under Section 43(d) of the Tamil Nadu Court- Fees and Suits Valuation Act, 1955 and not under Section 29 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 as done by the plaintiff, particularly, when the relationship between the landlord and tenant exists where the special provision is made under Section 43 of the Act for payment of court-fees. In the result, this application is allowed. The Registry is directed to transfer the suit in C.S.No.296 of 2021 to the file of City Civil Court at Chennai having pecuniary jurisdiction to try the suit under due acknowledgment. The Registry of City Civil Court, Chennai, shall assign fresh number to the suit and proceed with further in accordance with law. The plaintiff is entitled to refund of excess court-fees paid as per rules.