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Bai Aimai Limjibhai Kavarana Vs. Minoo Manchershaw Davar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 2200 of 1948
Judge
Reported inAIR1949Bom254; (1949)51BOMLR272
AppellantBai Aimai Limjibhai Kavarana
RespondentMinoo Manchershaw Davar
Excerpt:
.....to recover possession of house from licensee-court-fees act (vii of 1810), section 7(xi)(cc)-suits valuation act (vii of 1887)-bombay rents, hotel and lodging house rates control act (bom. xlvii of 1947)-bombay city civil court act (bom. xl of 1948).;a suit to recover possession of a house, the monthly letting value of which is rs. 50, on the allegation that the defendant is in possession as a licensee, lies in the high court of bombay, notwithstanding the bombay rents, hotel and lodging house rates control act, 1947, or the bombay city civil court act, 1948, because the claim for purposes of jurisdiction in such a suit has to be valued at over rs. 10,000. - - if in the course of the hearing it transpires that the defendant was not the licensee but was the sub-tenant, the..........this court to entertain this suit.5. the learned advocate general referred me to section 8 of the suits valuation act (vii of 1887) which reads as follows :-where in suits other than those referred to in the court-fees act, 1870, section 7, paragraphs v. vi ana ix, and paragraph x, clause (d), court-fees are payable ad valorem under the court-fees act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same.proceeding on the footing that for the purpose of the assessment of the court-fees section 7, sub-el, (ad)(cc), applies, he said that the same valuation must apply for the purposes of the determination of the jurisdiction in this case. i pointed out to the learned advocate general that section 8 of the suits.....
Judgment:

Desai, J.

1. The plaintiff is the mother-in-law of the defendant. The plaintiff says that after the marriage of her daughter with the defendant, the defendant was allowed to stay in the plaintiff's flat with the plaintiff's leave and license and that the defendant is at present in wrongful occupation of one bed-room in that flat as the license given by the plaintiff to the defendant has been withdrawn. The plaintiff submits that the defendant is a trespasser in respect of that room and that he is liable to pay damages for trespass at the rate of Rs. 50 per month or at such, other rate as this Court may determine from. June 20, 1948. The plaintiff prays that the defendant, his servants and agents may be ordered to remove himself and them from the room in the flat with their belongings and that the defendant, his servants and agents may be restrained by an order and injunction of this Court from entering the flat or occupying any room therein; and that the defendant should be ordered to pay to the plaintiff damages at the rate of Rs. 50 per month or at such other rate as this Court may determine from June 20, 1948, till the injunction prayed for becomes effective.

2. The defendant denies that he is the licensee in occupation of the room under a. license from the plaintiff and he says that he is a sub-tenant of the plaintiff. At the hearing the following issues were raised :-

(1) Whether having regard to the Bombay Rent Control Act XL VII of 1947 and or the Bombay City Civil Court Act 1948, this Honourable Court has jurisdiction to entertain the suit ?

(2) Whether the defendant is a licensee or a sub-tenant of the plaintiff ?

(3) Whether the plaintiff is entitled to any, and if so, what reliefs and

(4) Whether the plaintiff is entitled to compensation, and if so, at what rate ?

3. The Advocate General appearing with Mr. Poonawalla on behalf of the defendant argued issue No. 1 first, as his submission was that if this Court had no jurisdiction to entertain the suit, the question whether the defendant was a licensee or a subtenant could not be decided by this Court. The Advocate General did not press the point that this Court had no jurisdiction because of the Bombay Rent Control Act (XLVII of 1947), as he realized that that Act applied only in cases where the relationship of landlord and tenant subsisted. Though the defendant in this case maintains that he was the sub-tenant of the plaintiff, the plaintiff has denied that allegation and has brought this suit on the footing that the defendant was a licensee only. If in the course of the hearing it transpires that the defendant was not the licensee but was the sub-tenant, the plaintiff's suit will fail. There is no relief that this Court is going to give to the plaintiff on the footing that the defendant is the tenant of the plaintiff.

4. The Advocate General argued that the Bombay City Civil Court Act, 1948 takes away the jurisdiction of the High Court to try this suit. The Advocate General referred me to Section 7, Sub-clause (xi)(cc), of the Court-fees Act (VII of 1870), which provides for the court-fees to be levied in suits between landlord and tenant for the recovery of immoveable property from a tenant, including a tenant holding over after the determination of a tenancy. In such suits by Section 7, Sub-clause (xi), it is provided that the court-fees have to be levied according to the amount of the rent of the immoveable property to which the suit refers, payable for the year next before the date of presenting the plaint. I pointed out to the learned Advocate General that the present suit is not a suit between a landlord and a tenant and, therefore, the provisions of Section 7, Sub-clause (mi)(cc), of the Court-fees Act, did not apply. But the learned Advocate General maintains that the same considerations must apply to the facts of the present case. He said that assuming that the defendant was a licensee, he was not a trespasser, and if for the purposes of the Court-fees Act the amount must be assessed on the basis of the rent payable for the year next before the date of the presentation of the plaint in the case of a tenant, the same considerations must apply for the purpose of determination of the jurisdiction of this Court to entertain this suit.

5. The learned Advocate General referred me to Section 8 of the Suits Valuation Act (VII of 1887) which reads as follows :-

Where in suits other than those referred to in the Court-fees Act, 1870, Section 7, paragraphs v. vi ana ix, and paragraph x, Clause (d), court-fees are payable ad valorem under the Court-fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same.

Proceeding on the footing that for the purpose of the assessment of the Court-fees Section 7, sub-el, (ad)(cc), applies, he said that the same valuation must apply for the purposes of the determination of the jurisdiction in this case. I pointed out to the learned Advocate General that Section 8 of the Suits Valuation Act specifically excluded from its operation Section 7, paragraph (v), of the Court-fees Act (VII of 1870), which reads as follows :-

In suits for the possession of lands, houses and gardens-according to the value of the subject-matter; and such value shall be deemed to be etc. etc.

Therefore where we are concerned with suits for the possession of lands, houses and gardens, the valuation which is to be determined according to the provisions of Section 7, Sub-clause (v), of the Court-fees Act (VII of 1870), will not be the valuation for the purpose of determining the jurisdiction under the Suits Valuation Act (VII of 1887). The learned Advocate General conceded that the suit for the possession of a part of the house would also fall under Section 7, Sub-clause (v), of the Court-fees Act (VII of 1870).

6. Mr. N. A Mody appearing on behalf of the plaintiff pointed out this further difficulty that Section 3 of the Suits Valuation Act (VII of 1887) provides as follows :-

3, (1) The Provincial Government may, subject to the control of the Governor-General in Council, make rules for determining the value of land for purposes of jurisdiction in the suits mentioned in the Court-fees Act, 1870, Section 7, paragraphs (v) and (vi) and paragraph (x), Clause (d),'

(2) The rules may determine the value of any class of land, or of any interest in land, in the whole or any part of a local area, and may prescribe different values for different places within the same local area.

7. Mr. Mody pointed out that the Provincial Government had not made any rules as provided for by Section 3 of that Act. In this connection Mr. Mody pointed out that Section 14 of the Madras Civil Courts Act provides as follows :-

When the subject-matter of any suit or proceeding is land, a house or a garden, its value shall, for the purposes of the jurisdiction conferred by this Act, be fixed in manner provided by the Court-fees Act, Section 7(d).

There is no such provision to be found in the Bombay City Civil Court Act (XL of 1948).

8. In the result I am afraid I derive no assistance from the Court-fees Act or the Suits Valuation Act.

9. This being the position, I turn to the Bombay City Civil Court Act (Bombay XL of 1948). By Section 3 of that Act it is provided that

the Provincial Government may, by notification in the Official Gazette, establish for the Greater Bombay a Court, to be called the Bombay City Civil Court. Notwithstanding anything contained In any law, such Court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding ten thousand rupees in value, and arising within the Greater Bombay....

What I shall now consider is whether the present suit is a suit not exceeding its. 10,000 in value. These words, in my opinion, mean that the value of the subject-matter of the suit should not exceed Us. 10,000. The learned Advocate General referred me to Section 110 of the Civil Procedure Code which says that

in each of the cases mentioned in Clauses (a) and (6) of Section 109 the amount or value of the subject-matter of the suit in the Court of first instance must be ten thousand rupees or upwards, and the amount or value of the subject-matter in dispute on appeal to His Majesty in Council must be the same sum or upwards,

or the decree or final order must involve, directly or indirectly, some claim or question to or respecting property of like amount or value.

The Advocate General said that this case does not fall within the first part of Section 110 of the Civil Procedure Code as the value of the subject-matter of the suit is not above Rs. 10,000 as, according to him, the value of the subject-matter of the suit could not in any event be computed as more than the total of one year's rent or compensation payable in respect of the room in the occupation of the defendant.

10. The learned Advocate General referred me to Kasturbhai v. lliralal : AIR1923Bom23(1) where the head-note reads as follows :-

The plaintiffs sued to evict the defendant from their premises, under the Bombay Rent Act on the ground that they reasonably and buna fide required the premises for their own use and occupation. The monthly rent of the portion occupied by the defendant was Rs. 275. The Court of first instance passed a decree for possession in favour of the plaintiffs and it was confirmed by the Court of Appeal. The defendant, thereupon, applied for a certificate to appeal to the King in Council. It was held that the certificate must be granted, for the decree allowing possession of the tenancy involved directly a claim or question to or respecting property over Rs. 10,000 as the monthly rent of the premises was Rs. 275 and capitalized at twenty years1 purchase the value of the property would be over Rs. 10,000.

The Advocate General argued that for the purposes of the Bombay City Civil Court Act what I am concerned with is the value of the subject-matter of the suit. He argued that in Kasturbhai v. Hiralal their Lordships did not consider the question of the value of the subject-matter of the suit, and they gave leave to appeal to the Privy Council as the decree allowing possession involved directly a claim or question to or respecting property over Rs. 10,000 in value. In my opinion in the case of Kasturbhai v. Hiralal the value of the subject-matter of the suit also was over Rs. 10,000 though that is not the ground on which the right to obtain a certificate was recognized. The distinction that the learned Advocate General seeks to make between the value of the tenancy and the value of the property, in my opinion, is not the correct distinction as I am concerned with the value of the property in the defendant's possession. The suit is to recover possession of property, the value whereof for the reasons which I shall hereinafter set out, in my opinion, is more than Rs. 10,000. That is the property which is the subject-matter of the suit. In my opinion, therefore, the City Civil Court has not got the jurisdiction to try this suit and the High Court has jurisdiction to try this suit.

11. The learned Advocate General referred me to Balkrishna v. Bamkrishna. (1930) 33 Bom. L.R. 263. The plaintiff in that suit sued to recover arrears for two years' rent with interest (viz. Rs. 51-5-0) and possession of the property from his tenant. A question having arisen what was the valuation of the suit for purposes of Court-fees, it was held that the claim for recovery of possession should be valued at one year's rent preceding the suit (viz. Rs. 23-10-6) under Section 7(xi)(cc) of the Court-fees Act, 1870, and that the Court-fees were leviable on Rs. 74-15-6. It is clear, however, that that was a suit between a landlord and a tenant; and if so, it is equally clear that Section 7, Sub-clause (xi)(cc), applied. If this suit had been a suit filed by a landlord for the recovery of possession from a tenant, this Court would not have jurisdiction to try the suit.

12. The Advocate General next referred me to Jamnadas v. Chandulal. (1936) 39 Bom. L.R. 138 It was there held that in a suit for declaration and injunction the valuation of claim for the computation for Court-fees and for purposes of jurisdiction being the same, under Section 8 of the Suits Valuation Act, the value adopted for Court-fee purposes under Section 7(iv)(c) of the Court-fees Act, 1870, will determine the jurisdiction of the Court which hears the case. But as appears from the judgment of Beaumont C.J. in that case, though the value of the property which was the subject-matter of the suit exceeded Rs. 5,000, it was held that the Second Class Subordinate Judge, whose jurisdiction was limited to suits wherein the subject-matter did not exceed in amount or value Rs. 5,000, had the jurisdiction to try the suit because the valuation had, for the purposes of jurisdiction, to be fixed having regard to Section 8 of the Suits Valuation Act of 1887. But this again brings me back to the same point, namely, that para, (v) of Section 7 of the Court-fees Act of 1870 has been left untouched by Section 8 of the Suits Valuation Act of 1887.

13. What then are the grounds on which I am holding that the subject-matter of this suit is over Rs. 10,000 The plaint states that Rs. 50 would be the amount payable by way of damages for deprivation of the plaintiff's right to use the room in the defendant's occupation. The yearly rent of that room would come to Rs. 600, and adopting the test laid down in Kasturbhai v. Hiralal that sum capitalised at twenty years' purchase would bring the value of the subject-matter of the suit to over Rs. 10,000. The evidence in this case establishes the value of the room as at least Rs. 50 per month.

14. I must point out that the suit was filed on August 6, 1948, and the Bombay City Civil Court Act, 1948, (Bombay Act No. XL of 1948) came into operation on August 16, 1948. I have no reason, to think that the figure of Rs. 450 as damages caused to the plaintiff every month was inserted merely for the purpose of enabling the High Court to have jurisdiction to try the suit. This being my opinion, I hold that this Court has jurisdiction to entertain this suit.

15. I answer issue No, 1 in the affirmative.

16. After I delivered the above judgment, Mr. Mody on behalf of the plaintiff drew my attention to the case of Ratiltd Manilal v. Chandulal Chhotalal (1946) 49 Bom. L.R. 552 where it was held that in a suit for possession of a house, where the plaintiff claimed that the defendant in possession was his licensee, the court-fee was payable according to the market value of the house, under Section 7, Sub-clause (v)(e), of the Court-fees Act, 1870. This case supports my judgment that the provisions of Section 8 of the Suits Valuation Act (VII of 1887) have no application to this particular case.


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