Shankarlal Ramjana and Another vs Krishnabhabini Dasi

Deb, J.—This Rule, issued under Article 227 of the Constitution of India, is directed against an order dated July 25, 1969 passed by the learned Chief Judge, Small Causes Court of Calcutta, in Rent Appeal No. 17 of 1969 revising and raising the value of the said appeal pending before him and directing the petitioners to pay the deficit Court fees on their memorandum of appeal in accordance with the enhanced valuation. The petitioners are the tenants of the suit premises under the opposite parties on a rent of Rs. 1.000/- per month. The petitioners initiated a proceeding before the learned Rent Controller being R.C. Case No. 654B of 1966 R.P. under the provisions of subsection (1) of Section 34 of the Wes: Bengal Premises Tenancy Act, 1956, against the opposite parties requiring them to make certain repairs to the suit premises. The learned Rent Controller dismissed the said case by holding that the said proceedings was not maintainable on the ground that the petitioners were not in possession of the suit premises as contended on behalf of the opposite parties.

The petitioners preferred the said appeal to the learned Chief Judge of the Small Causes Court under the pro-visions of clause (a) of sub-section (1) of section 29 of the said Act from the said order of the learned Rent Controller on a Court-fee of 75 P. The opposite parties took an objection as to the valuation of the said appeal and the learned Chief Judge by its order dated July 25, 1969 revised the value of the said appeal and raised it to Rs. 12,000/- which is 12 times the monthly rent of Rs. 1,000/-and detected the petitioners to pay the deficit Court-fees by August 8, 1969. In these circumstances, the petitioners have obtained this Rule against the said order of the learned Chief Judge.

The learned Advocate Mr. H.K. Mitra, appearing for the petitioners, has assailed the impugned order on these grounds. Rule 23 of the West Bengal Premises Tenancy Act 1956 provides that the Court-fees payable on a memorandum of appeal shall be such as provided in Article 1 of Schedule 1 to the Court-fees Act but none of the items in that Article has any application to the said appeal and therefore the learned Chief Judge has acted illegally and without jurisdiction in raising the value of the said appeal and in directing the petitioners to pay the enhanced Court-fees. It is not possible to value the said appeal and hence valuation made and the Court-fees paid by the petitioners must be sustained on the principle laid down by a Division Bench of this Court in the case of (1) Parmand Lokumal & Ors. v. The Khubadi Bhaibund Co-operative Credit Bank Ltd. & Ors. reported in 62 Cal. W.N. 820.

The learned Advocate Mr. B.K. De, appearing for the opposite parties, has contended before me that this Rule should be discharged in limine on the ground that the petitioners are not in possession of the suit premises and therefore the said proceeding instituted by them under the provisions of Sub section (1) of Section 84 of the West Bengal Premises Tenancy Act, 1956 is not maintainable. It has also been contended by Mr. De that the said proceeding is not maintainable also on the ground thru the petitioners have made certain unauthorised constructions and the Corporation of Calcutta has instituted proceedings for their demolition. But these questions are not the subject-matter of this Rule and therefore they cannot be agitated here as rightly pointed cut by Mr. Mitra.

It was then contended by Mr. De that the value of the Paid appeal should be the 12 times the monthly rent on the principles applicable to the appeals in relation to the fixation of fair rent of the tenanted premises, but, in my opinion, no such principle can be imported in a fiscal statute of this nature. Further, the value of an appeal against an order fixing the fair rent should normally be arrived at on the basis of the fair rent fixed by the learned Rent Controller because that will be the subject-matter in dispute in that appeal but there cannot be any pricise or definite money value of an appeal against an order dismissing a proceeding instituted under sub-section (1) of section 34 of the West Bengal Premises Tenancy Act 1956 and therefore I find no resion to accept the contention of Mr. De.

Mr. De then invoked the provisions of Sub-section (2) of Section 34 of West Bengal Premises Tenancy Act, 1956, and contended that the value of the said appeal should be the six months'' rent of the suit premises for the petitioners may ultimately be entitled to deduct six months'' rent from the monthly rent payable by them if their appeal is allowed and the opposite parties foil to carry out the repairs in pursuance of an order that may be passed against them in that behalf under sub-section (2) of Section 34 of the said Act. But I am unable to accept this contention.

The order under appeal before the learned Chief Judge is not an appeal against an order passed under sub-section (2) of section 34 but an order dismissing the said proceeding instituted under subsection (1) of that section of the Act and therefore nothing contained in subsection (2) of that section has any applicant on to the facts and circumstances of that appeal Further, no money value has been given by the petitioners for the relief, claimed by them in their petition initiating the said proceedings before the learned Rent Controller. They have not even given any estimated cost of repairs in their said petition for they were not required to do so under sub-section (1) of Section 34 of the said Act. In other words the cost of repair is not the subject-matter of the said appeal and therefore its value cannot be determined on the basis of six months'' rent on a mere speculation speculated by Mr. De.

The said appeal does not tall within any of the items set forth in Article 1 of Schedule 1 to the Court-fees Act is an admitted position. It is also or ad-mitted position that no objective test nor any guidline has been laid down either by the Court-fees Act or by the High Court u/s 9 of the Suits Valuation Act for the purpose of determining the value of such appeals. Further, no objective test can at all be applied to value the said appeal inasmuch as it is impossible to value the reliefs claimed by the petitioners in terms of money with any precision or definiteness because of the very nature of the said proceeding initiated by them.

In these circumstances, they have an option to value their claim according to their own choice. They have exercised their option and have paid the Court-fees according to their own valuation. And no one can interfere with their valuation. Hence, it must be held that the impugned order was passed without jurisdiction. In this view of the matter, this Rule is made absolute and the impugned order is hereby set aside. The opposite parties shall pay to the petitioners the costs of this Rule which is assessed at 3 Gms. The learned Chief Judge is directed to decide the said appeal in accordance with law.