Md. Abdullah vs Saleha Bi and Others

This is a revision against the order of the lower court calling upon the Plaintiff to amend the plaint and pay court-fee on the suit as on a suit based on title and for possession. The Petitioner before us is the Plaintiff in the lower court. He filed a suit for ejectment against the Defendant-Respondent, alleging that the predecessor of the Defendant took up the house on rent; that the predecessor died and that the Defendants have not paid any rent subsequently. He, therefore, prayed for ejectment of the tenant and for possession of the house. The defence of the Respondents was that the Plaintiff had no title to the property and that the house belonged to the Defendants and that they were in possession of the house in their own right. The lower court has come to the conclusion that having regard to the nature of the suit, it ought to be treated as one based on title and, therefore, the Plaintiff was bound to pay court-fee as on a suit based on title and not as a suit for ejectment u/s 4, cl. 9(D), Hyderabad Court-foes Act. This revision is directed against the above order.

We have heard the arguments of the respective advocates of the parties. We are of the opinion that the lower court was wrong in holding that this suit would be governed by Section 7, cl. 4, Hyderabad Court-fees Act. We would make it clear at the outset that the question of court-fee depends upon the allegations in the plaint and not on the defence raised by the Defendant. Therefore, before deciding under what section of the Court Fees Act, court-fee has to be paid, the Court has to look into the allegations in the plaint.

It is urged by the learned advocate for the Respondents that the plaint allegations are such that the suit should be regarded as one against trespassers and not against a tenant, because the allegations in the plaint are that the Defendant denied that the Plaintiff was the owner of the house and the Defendant was a tenant and that any rent was due by the Defendant. The sum and substance of the argument is that when such allegations are made, the Defendant can by no stretch of imagination be regarded as a tenant of the Plaintiff and the suit cannot be treated as a suit for ejectment of a tenant. It has to be observed that a tenant holding over does not cease to be a tenant because after the period of tenancy, he makes default in the payment of rent. In a suit for ejectment of a tenant by a landlord, the enquiry into the question of title will be restricted just to know whether the Defendant is tenant of the landlord. The enquiry is only confined to that extent. The Plaintiff succeeds or fails on the strength of the allegations in the plaint and if it is established that the Defendant is not a tenant, his suit goes. Where the Plaintiff''s allegations are that he is the owner of the house and the Defendant is his tenant, to regard it as a suit based on title is not warranted by law. Our view is further Supported by a decision of the Madras High Court reported in � S.K.M. Sivasubramania Nadar Vs. S.S.K. Subramania Nadar and Another, , and the decision of the Calcutta High Court in � Govinda Kumar Sur and Others Vs. Mohini Mohan Sen and Others, . The learned advocate for the Respondent invited our attention to a decision of this Court reported in 31 DLR 22 (C). We must say that that case is distinguishable from the case now before uS, because from that judgment it would appear that the property was under the supervision of the Government and even at that time the Defendant denied the Plaintiffs ownership of the house and their Lordships held that even at that time the Plaintiff was aware of the fact that the Defendant was denying his title to the property and under the circumstances, to regard him as a tenant acknowledging the Plaintiff as the owner of the house was not possible. Having regard to the facts and circumstances of that case, the Judges held that that suit must be regarded as a suit against a trespasser. That judgment, in our opinion, cannot help the Respondent. IF in this suit, the Plaintiff is not able to establish that he is the owner and the Defendant is a tenant, his suit would be dismissed. In our opinion it would be preposterous to compel the Plaintiff to treat his suit as a suit against trespassers and make the Plaintiff pay court-fee accordingly. For all the above reasons, the order of the lower court is set aside. The case will go back to the lower court for further trial. The Petitioner will have the costs of this petition. Advocate''s fee Rs. 30/-.