Madras High Court
Parvathy vs N. Arumugham on 13 October, 1987
Equivalent citations: (1988)1MLJ92
ORDER K.M. Natarajan, J.
1. This revision is directed against the order passed by the learned 18th Asst. Judge, City Civil Court, Madras, dismissing the petition I.A. No. 2493/87 filed by the revision-petitioner under Section 12(2) of the Tamil Nadu Court-fees and Suits Valuation Act, 1955 (hereinafter referred to as 'the Act'). The revision-petitioner is the second defendant in the suit filed by the respondent-plaintiff. The revision petitioner filed the petition I.A. N0. 2493/87 before the Court below alleging that the respondent-plaintiff filed the suit for recovery of possession on ground that he is the tenant in respect of the suit property, that the first defendant asked him to vacate under the guise of carrying out certain repairs, that accordingly possession was delivered and that though he agreed to give possession, he did not do so after repairs. The second defendant (revision-petitioner) has been added on the ground that she received a notice from the sub-tenant that the second defendant is also making claim for rents on the ground that she purchased the property from the first defendant. After the filing of the suit, defendants 1 and 2 contended that they have taken possession of the property and hence the plaintiff prayed for injunction restraining defendants 1 and 2 from interfering with his possession and enjoyment of the plaint schedule property. Subsequently, finding that he has no case for injunction, he sought amendment of the plaint for recovery of possession. As against the said order, the petitioner preferred a revision and since the respondent gave up the relief of possession under Section 6 of the Specific Relief Act this Court directed him to proceed with the suit for recovery of possession under general law. Accordingly, he filed amendment petition and introduced paras 5(a) and (b) and 7(a) and relief column 8(aa) contending that after the filing of the suit they have taken possession of the upstairs portion of the property, that defendants 1 and 2 continue to remain there, that their continuance amounts to trespass and that they have no right to continue such possession. It is specifically averred that so far as the plaintiff is concerned, defendants 1 and 2 are trespassers and the prayer was for directing the defendants 1 and 2 to hand over possession of the entire property to the plaintiff. It is stated by the petitioner who is the second defendant that she has purchased-the suit property for a valuable consideration of Rs. 2,50,000 and if the relief of possession is valued on the basis of the market value, the Court has no jurisdiction to try the suit and that he has raised a plea in the additional written statement that the court-fee paid is not correct and issue 3 has been framed. According to the revision-petitioner, there is no privity of contract between her and the plaintiff, and since the respondent-plaintiff sought a relief against her, the suit ought to have been for recovery of possession on the basis of the market value and not on the annual rent under Section 43(l)(d) of the Act. Hence the relief prayed for in the petition is to decide the question as regards the valuation of the suit and the payment of court-fee in the first instance as provided under Section 12(2) of the Court Fees Act before deciding the other issues.
2. The said application is resisted by the respondent and it is stated in the counter that the suit is for recovery of possession of the suit property as a tenant and as a owner. The revision petitioner simply because she purchased the property does not become a third party and her right of purchase is certainly subject to the right of tenant in his favour. Therefore, the payment of court-fee on the basis of the value of the property does not arise and that the suit squarely falls under Section 43(1)(d) of the Act and the application is to be dismissed. Further, even though the revision-petitioner has stated that no proper court-fee has been paid, she has not raised the question of jurisdiction.
3. The Court below accepted the contention of the plaintiff and dismissed the petition. Hence this revision.
4. The question for consideration in this case is whether the relief prayed for by the revision-petitioner for deciding, the issue regarding the valuation of the suit and the court-fee paid in the first instance as provided under Section 12(2) of the Act before taking up the other issues is tenable and whether the suit has been properly valued as observed by the Court below. As per Section 12(2) of the Act, all questions arising on such pleas that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. In the instant case, admittedly, the revision-petitioner has raised the plea in para 6 of the additional written statement filed by her that the relief of possession has not been properly valued. It is seen from the order passed by the Court below that issue 3 has been framed regarding the same. In view of the said provision certainly the Court below ought to have allowed the application and decided the question of payment of court-fee on the relief as preliminary issue before proceeding with the other issues framed, in respect of the value of the claim. Instead of doing so, the Court below has not decided the said issue regarding the court-fee in this petition and dismissed the application. Even though the second defendant has not stated that the plaintiff has not properly valued the suit and that it would exceed the jurisdiction of the trial Court, yet, there is a plea that the relief of possession has not been properly valued and that if ultimately, that question is decided and if the value exceeds the limits of the jurisdiction, the Court is certainly bound to return the plaint of the plaintiff for presentation before proper Court. Otherwise, if it is within the limits of the pecuniary jurisdiction of the said Court and if any deficit court-fee is payable, it can allow the plaintiff to pay the deficit court-fee in view of the Section 12(2) of the Act. Hence, the Court below has not properly appreciated the scope of Section 12(2) of the Act with reference to the relief prayed for in the application.
5-6. Now, the next question that remains to be considered is whether in view of the addition of the relief prayed for against the petitioner for recovery of possession, the valuation done by the plaintiff under Section 43(l)(d) of the Act is proper or whether the plaintiff has to value the suit for recovery of possession by valuing the property on the basis of the market value under Section 25(a) or 30 of the Act. It is the contention of the revision-petitioner that the allegations in the plaint alone have to be taken into consideration and as seen from the allegations in the plaint, the second defendant as well as the first defendant were trespassers. Further, in more than one place it is stated that their continuance amounts to trespass and that they have no right to continue in possession. In the circumstances, since there is no privity of contract between the second defendant and the plaintiff and the plaintiff did not recognise the second defendant as her landlord and there is no relationship of landlord and tenant and on the other hand the plaintiff is seeking the relief on the basis that she is a trespasser, the suit shall be valued not under Section 43(l)(d), but for recovery of possession as in other case under Section 25(a) or Section 30 of the Act. As rightly contended by the learned Counsel for the revision-petitioner, it is well settled that the question of court-fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole. If any authority for this proposition is needed, the decision in Neelavathi v. M. Natarajan , can be cited. Further, this Court in an earlier case in a Special Bench consisting of three Judges in Suryanarayana v. Narasimhaswamy (1939)1 M.L.J. 268 : I.L.R. (1939) Mad. 367 : A.I.R. 1939 Mad. 360, held to the same effect. That proposition is not disputed by the learned Counsel for the respondent also. Now the question remains to be considered is whether the suit has been properly valued. Though the plaintiff filed the suit on the basis of the tenancy in his favour from the first defendant, there is the involvement of the second defendant in the suit who has been inducted into possession by the first defendant. According to the plaintiffs, the defendants are trespassers. It is nowhere stated that the plaintiff recognised the second defendant as his landlord. In the circumstances, according to the learned Counsel for the revision-petitioner, the suit cannot be valued under Section 43(l)(d). That section relates to the suit between the landlord and tenant. In this connection, the learned Counsel for the plaintiff drew my attention to the decision in Suryanarayana v. Narasimhaswamy (1939)1 M.L.J. 268 : A.I.R. 1939 Mad. 360 (referred to above) wherein a Special Bench of this Court held:
A lessee brought a suit for specific performance of a contract of lease, for possession of the property, and for the recovery of mesne profits, on the allegation in his plaint that the lessor had in collusion with the other defendants put the defendants into possession of the property and had refused his demand for possession;
Held, that the suit in substance was not for specific performance, but one for possession against strangers to the contract, who according to the plaintiff were unlawfully withholding possession from him. The suit therefore fell under Section 7(v) and not under Section 7(x)(c).
It is to be noted that Section 7(x)(c) corresponds to the present Section 43(l)(d). Section 7(v) deals with the payment of court-fees in a regular suit for possession as in Section 25(a) or 30 of the present Act. The learned Counsel relied on the said decision and submitted that in the said case also the landlord though executed a lease deed subsequently put the other defendants in possession and they are strangers to the contract and hence the suit cannot be valued under Section 7(x)(c) of the Court-fees Act, 1870. The leanred counsel also also drew my attention to another decision of this Court reported in Kuppuswami v. The Tah Fraksh Thaikkal Estate (1946)1 M.L.J. 190 : A.I.R. 1946 Mad. 322 : I.L.R. (1946) Mad. 821. That was also a case where the plaintiff filed the suit against the first defendant (landlord) and the second defendant has been admitted in possession of the property by the first defendant, alleging that he is entitled to occupancy rights in the land and that the landholder had no right to lease the land to the second defendant. The suit was valued under Section 7(v)(c) of the Court-fees Act, 1870 (Act VII of 1870). The Division Bench of this Court though upheld the valuation of the suit under Section 7(v)(c) held the value of the relief under Section 7(v)(c) of the Court-fees Act at 15 times the net value of the kudiwaram, on conclusion of the net profits after deducting the rent payable to the landholder and the cost of cultivation is not correct and that it should be included. The Subordinate Judge directed the plaintiff to calculate the net profits in accordance with the judgment in Ratnavelu Pillai v. Varadaraja Pillai (1942)1 M.L.J. 569 : A.I.R. 942 Mad. 569. Aggrieved by the same, the plaintiff preferred an appeal and the said appeal was allowed and the matter was remanded back to the Court below holding that the plaintiff is merely entitled to the kudiwaram and the value of that right can only be arrived after deducting what he has to pay to the landholder by way of rent and, of course, the expenses incurred by him in cultivating the land. The said decision is relevant for the proposition that in the case where the landholder admitted another person to possession of the property, the proper valuation is to be done only under Section 7(v)(c) and not under Section 7(x)(c) which is similar to the present Section 43(l)(d) of the Act. The learned Counsel also relied on the decision in Mahabir Prasad v. Shamsuddin . In that case, where the erstwhile partners of the tenant of a shop, who had entered it as such partners, take shelter to justify their possession of the shop after the dissolution of the partnership, under an arrangement with the landlord recognising them as tenants, and the tenant files a suit for recovery of possession both against the landlord and those partners, it was held that it is not a suit between landlord and tenant but a suit for possession of the shop from the partners and the suit has to be valued for the purpose of jurisdiction on the market value of the shop and not at the market value of the leasehold right and the court-fee payable therein is under Section 7(v)(ii) of the Court-fees Act, 1870 and not under Section 7(xi)(e) which corresponds to Section 43(l)(d) of the Madras Act.
7. The learned Counsel for the respondent, Mr. T.N. Vallinayagam, wants to justify the finding of the lower Court and submitted that the second defendant is no other than the purchaser of the leasehold right from the first defendant, that her purchase is subject to the tenancy right in favour of the plaintiff and that the present valuation of the suit under Section 43(l)(d) is proper. Even though the allegations in the written statement filed by the revision petitioner herein is not relevant for deciding the issue, yet by way of curiosity I have gone through the written statement filed by the second defendant wherein the second defendant contended that she is the present owner of the suit property, that the plaintiff handed over vacant possession of the property in pursuance of the sale deed dated 6.9.1984 and that the plaintiff requested the third defendant to vacate the premises and hand over possession of the ground floor to the second defendant within two months and the third defendant also delivered possession to the second defendant. The plaintiff is not in possession of the property on the date of sale and the remedy of the plaintiff is not against the second defendant, but only against the first defendant for recovery of damages if any and he was not the tenant on the date of purchase by her and that he cannot seek for possession against the purchaser who is in possession of the property in her own right as owner. The learned Counsel relied on the decision reported in Abdul Rahman v. Budhu , wherein it was held:
A suit by a tenant for recovery of possession of the land from which he had been wrongfully dispossessed by the defendant who was a purchaser of the landlord's interest in part of the demised land is governed by Section 7(xi)(e). The Court has jurisdiction to investigate in such a case whether the relationship of landlord and tenant exists between the parties even though the investigation of a question of title involving a third party.
On going through the said decision, I find that the same is not helpful to the case of the respondent-plaintiff in this case. The respondent-plaintiff did not recognise the second defendant as his landlord. It is not the case of the plaintiff that he was wrongfully dispossessed by the second defendant. On the other hand, the case of the plaintiff is that he had already delivered possession to the landlord, the first defendant, for effecting repairs, but the latter did not keep up his words and deliver possession. Contrary to the promise, he sold the property and put the second defendant in possession. In the circumstances, the question is whether the plaintiff is entitled to ask for possession from the second defendant, who became the owner of the property by virtue of the alleged sale in his favour. In view of the pleas raised in the plaint as well as in the written statement there is no question of relationship of landlord and tenant between the plaintiff and the second defendant to be decided in the suit. On the other hand, it is seen that the specific case of the plaintiff is that the second defendant is a trespasser on the property and that he is in unlawful occupation of the same and that she has no right to continue in possession even though it is stated that she purchased the property from the first defendant as alleged in the notice sent to the sub-tenant, the third defendant. In the decision in Abdul Rahman v. Budhu , the learned judges have not followed the decisions of this Court, as seen from para 7 of the judgment, reported in Palaniappa Chetti v. Sithravelu Servai 17 M.L.J. 478 : I.L.R. 31 Mad. 14, and decisions of other High Courts. As already observed, the decision of the Patna High Court is not helpful to the facts of the instant case. Further, in view of the various decisions of our High Court on this point, it can be safely held that the respondent-plaintiff has not properly valued the relief of possession and the order passed by the Court below in dismissing the petition is not sustainable.
8. In the result, the revision-petition is allowed, the order passed by the Court below is set aside and consequently the application I.A. No. 2493/87 filed by the revision petitioner is allowed and the Court below is directed to decide the issue relating to valuation of the suit and the court-fees in the first instance in accordance with the observations made in this order and then dispose of the suit according to law. In the circumstances of the case, there will be no order as to costs.