Shankarlal vs Rai Sahib Richhpal Rungta

Shiv Dayal, J.—This revision is directed against an interlocutory order passed by the second Additional District Judge, Durg, in civil suit No.7 of 1959 which is pending before him. The suit is for the specific performance of an agreement to lease on the allegations that on March 29, 1958. the plaintiff had agreed to give on lease his premises consisting of site with buildings situated in Gangipara, Durg. The agreement was later modified on August 31, 1958. The monthly rent agreed was Rs. 1250-for the first five years. The defendant was to incur an expenditure to the extent of 60,000-in converting the godowns into a cinema house. On the faith of these agreements the plaintiff allowed the defendant to demolish his godowns. Major part of the construction was completed by the defendant and he was exhibiting pictures in the house but the defendant was not prepared to execute the acceptance of the lease nor to get it registered. In the alternative, possession was claimed. The suit was valued at Rs. 15,000- "being rent for the first year''s lease" and court-fee of Rs. 1020-was paid. The defendant did not dispute the correctness of the valuation of the suit or of the adequacy of the court-fee paid. The trial Judge, however, framed a preliminary issue on July 30,1960. The case was fixed for the 2nd August, and then for the 18th August. On the latter date the Court was otherwise busy and this case was adjourned to the 28th September. But on the 20th August the Court took up this matter again and decided to postpone the determination of the question of court-fee together with other issues because of a circular of the High Court (No. 7406-3-1-46-58 dated 22-7-60) according to which suits were to be disposed of within six months. Consent of Shri Jha and Shri Bhargava ( i. e. counsel for both the sides) was recorded. On April 3, 1961 the defendant made an application that the preliminary issue regarding court-fee should be first decided. The trial Judge rejected the application in view of his order dated August 20, 1960.

Since the Court framed a preliminary issue there was no point in postponing its decision; all the more so, when it was clearly said in the order dated 30-7-60 that the parties did not want to lead any evidence on that issue. If the Court found that the court-fee paid was less than requisite, he could not proceed with the suit unless the deficiency was made up, and it would have been in the plaintiff''s choice to make up the deficiency or not to proceed with suit. Thus the question of court fee must have been decided as early as possible. It seems to me that the time which the learned trial Judge spent in fixing dates, hearing applications and passing orders on this question was sufficient to dispose of the issue itself. Ordinarily I would have allowed the revision and would have directed the trial Judge to dispose of the issue of court-fee first but the point is so obvious that it must be disposed of at once. I have heard the learned counsel for both the sides.

This is a suit for specific performance of a contract of lease, governed by Section 7 (x) (c) of the Court-Fees Act. The monthly rent for the first five years being Rs. 1250-, the rent for the first year comes to Rs. 15000- Court fee was paid on this. It wais sufficient.

Shri Deoras strenuously urged that the plaintiff should have paid ad valorem court fee in respect of his prayer for possession. According to the learned counsel the plaintiff is claiming possession from the defendant as a trespasser. It seems to me that this contention is untenable. The plaintiffs'' suit against the defendant is on the basis of relationship of land-lord and tenant. The defendant entered into the suit premises as a tenant of the plaintiff. In respect of that relief, therefore, it is Section 7 (xi) (cc) which applies. There too the court fee payable is according to the amount of rent payable for the next year before the date of presenting the plaint. The suit was filed in 1959 i. e. within the first five years of the agreement of lease. The monthly rent fixed was Rs. 1250/- p. m. which come to Rs. 15,000/- for the year. S. 7 (xi) (cc) of the Court Fees Act runs thus:

for the recovery of immovable property from a tenant, including a tenant holding over after the determination of a tenancy.

Laying stress on the phrase "after the determination of a tenancy". Shri Deoras argues that in the present case there being no allegation of determination of tenancy this section is not applicable. Having given an anxious consideration, I have formed the view that the language of clause (xi) (cc) is wide enough to govern a case such as the one in hand. The said phrase relates to "a tenant holding over", that is, a tenant who is holding over after the determination of a tenancy. The comma after the word tenant is Conspicuous. There is no comma after the word "over". It is plain enough that clause (xi) (cc) is comprehensive and it covers every suit for the recovery of immovable property from a tenant. The scope of the provision is not limited. As soon as it is shower that the plaint is founded on relationship of landlord and tenant the clause comes into play irrespective of whether the lease is determined or not. The argument that no suit for possession against a tenant lies without first: determining the tenancy appears attractive but it has no force because the question of maintainability of a suit cannot be mixed up with the question of court fee. A suit or relief may be not maintainable it may even be frivolous-but that has no bearing on court fee. If the alternative relief for possession is not maintainable in the present form it maybe a ground for dismissing it on merits, but today I am not concerned with it.

According to Shri Deoras, the plaintiff must pay court fee on the relief for possession separately. In my opinion the two reliefs are claimed in the alternative. Where two or more alternative reliefs are prayed for on the same cause of action, u/s 17 (3) of the M. P. Court Fees Act, the plaint is chargeable with the largest of the fees which the plaints would be chargeable if separate suits were instituted in respect of the reliefs claimed in the plaint. Since the court fee payable on either of the two reliefs separately would be the same, that is Rs, 1,020/ it must be held that requisite court fee has already been paid. The preliminary issue is decided in favour of the plaintiff.

The revision is disposed of accordingly. The case shall now go back to the trial Judge for proceeding further with the suit.

Parties shall bear their own costs in this revision.