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Judgment
Thangamani, J.—The revision petitioner is the defendant in O.S. No. 291 of 1991 in the Court of District Munsif of Udhagamandalam. The
respondent/plaintiff instituted the suit for ejectment in respect of Order 03 cents in R.S. No. 1772/4 of Ootacamund Town together with
superstructure thereon stating that the revision petitioner is a tenant in occupation of the premises under a registered lease deed dated 1.4.1976,
that he continues as a tenant by holding over and that as per the terms of the lease deed the lessee is not entitled to remove the superstructure put
up by him on determination of lease. The revision petitioner though admitted that the construction was made as per the terms of the lease, pleaded
in his written statement that the lease of the suit land is governed by the provisions of Madras City Tenants Protection Act and that he has already
filed O.P. No. 3 of 1991 u/s 9 of the City Tenants'' Protection Act for appropriate relief. He also contended that the Court-fee paid is not correct.
The respondent/plaintiff has paid Court-fee for the relief of delivery of possession of superstructure on the piece of land which is not separately
valued. Instead he is liable to pay Court-fee on the actual market value of the building on the land. On these pleadings an issue on the adequacy of
Court-fee paid was framed and tried as a preliminary issue. Learned District Munsif found that u/s 43(2) of the Court-fees Act, the Court-fee paid
in the plaint is correct. And this civil revision petition is directed against the said order.
Learned Counsel for the revision petitioner/defendant submitted that Section 43(2) of the Tamil Nadu Court-fees and Suits Valuation Act
relates only to suits by lessor for the recovery of possession of the property leased out to the lessee. In the case on hand the property demised in
the year 1976 in favour of the revision petitioner is only the land and not the superstructure. The stipulation in the lease deed that the tenant shall
not remove the superstructure put up by him in the leased land at the time of surrendering vacant possession is contrary to Section 12 of the
Madras City Tenants Protection Act, hence that cannot be countenanced. By an astute drafting of the plaint the respondent/plaintiff has sought
recovery of possession of the superstructure also whose ownership is in controversy by paying the court-fees u/s 43(2) of the Act.
Section 43(2) of Tamil Nadu Act XIV of 1955 reads that in a suit for recovery of immovable property from a tenant including? tenant holding
over after the termination of a tenancy, fee shall be computed on the premium, if any and on the rent payable for the year next before the date of
presenting the plaint. In the plaint valuation for purpose of court fees and jurisdiction has been made on the basis of this section. Whereas, as per
learned Counsel for the revision petitioner the Court-fee should have been paid on the market value of the superstructure u/s 30 of the Act which
states that in a suit for possession of an immovable property not otherwise provided for, fee shall be computed on the market value of the property
or on rupees four hundred, whichever is higher.
In support of their respective claims learned Counsel for both sides have placed reliance on the decision of Chandra Reddi, J. (as he then was)
in Annadhana Kattalai In re. (1951) 1 M.L.J. 466 : 64 L.W. 207 : 1951 M.W.N. 315 : AIR 1951 Mad. 206. That was a suit in ejectment and for
arrears of rent based on tenancy created under two lease deeds. Though, the plaint recited that in reply to a notice calling upon the defendant to
surrender possession of the suit property on the termination of the leases, he set up a false claim to occupancy right in the suit land which he is not
entitled to as the suit land is a minor inam not situated in an estate within the meaning of the Madras Estates Land Act. The prayers in the plaint
were for recovery of possession of the suit properties from the defendant, for arrears of rent, etc. The relief of declaration of title to the suit
property was not claimed in the suit. The sole point for determination was which of the two provisions of the old Court-fees Act was applicable. It
was argued on behalf of the plaintiff that the suit was one for ejectment of the tenant, based on the tenancy created under the lease deeds. The
success or failure in the suit depended entirely upon the proof of tenancy set up by him in the plaint. On the other hand, it was claimed by the
Government Pleader that though the wording of the plaint indicated that it was a suit by a landlord to evict the tenant after the determination of the
tenancy and for recovery of possession of the land, virtually the relief sought for was one for establishing plaintiffs title to the suit property and for
possession thereof. The allegations in the plaint were such as would involve an adjudication on the kudiwaram right in the suit property. So it was
not a simple suit for ejectment but the plaintiff indirectly sought to have the kudiwaram right established in the suit. Held that the averments in the
plaint that the defendant was denying the relationship of landlord and tenant between the parties would not enlarge scope of the suit for purpose of
court-fee and would not take it away from the ambit of Section 7(xi)(cc) Present Section 43(2) of the then Court-fees Act. And the value should,
therefore, be determined on that basis and not as a general suit for possession. The facts therein are practically identical with those in the present
action and if I may say so with respect I am in entire agreement with the reasoning adopted by learned Judge in that case. No doubt, plaintiff will
not be permitted to circumvent the provisions of the Court-fees Act by the use of the language which would take away the plaint from the ambit of
a provision of the Court-fees Act requiring higher court-fee to be paid and that it is not the apparent tenor of the plaint that determines court fee
payable on the plaint, but substance thereof that should be taken into consideration in assessing the court fee payable on any suit. It is equally well
settled that in deciding the scope of the suit for purposes of assessing the court-fee, it is the plaint allegation primarily and not the nature of defence
set up in the written statement that should be taken into consideration. In the present action the suit is essentially one in ejectment and for recovery
of arrears of rent. The description of the plaint schedule is in respect of 3 cents of land together with the superstructure thereon. And the basis of
the suit is the tenancy created under the lease deed dated 1.4.1976. The mere fact that the defendant disputes the right of the plaintiff to recover
possession of the superstructure also and that he seeks to claim the benefits under the City Tenants Protection Act in respect of this will not cast an
obligation on the part of the plaintiff to pay court-fee on the market value of the superstructure u/s 30 of the Act. So, I am unable to agree with
learned Counsel for the revision petitioner that the plaintiff herein has to pay court-fee u/s 30 of the Act by giving separately the market value of the
superstructure. Instead there is no infirmity in the order of the court below that the proper court-fee has been paid u/s 43(2) of the Act.
In the result, the civil revision petition is dismissed. No costs.