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The Society of Servants of God Vs. Major Hanmantrao Narayanrao Jagtap - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 1642 of 1964
Judge
Reported in(1965)67BOMLR210
AppellantThe Society of Servants of God
RespondentMajor Hanmantrao Narayanrao Jagtap
Excerpt:
.....where the right of appeal is taken away by the provisions of section 29 of the act itself and not in respect of those from which no appeal lies under the civil procedure code. - - 10 complained that the valuation made by the plaintiffs for the purpose of court-fees and jurisdiction was wrong and the court-fees paid by the plaintiffs on. it is well-settled that even in cases where an appeal is provided to another court or an alternative remedy is available, the high court can exercise its powers under section 115 of the civil procedure code. statutory tenancy under the rent act, it is well settled, is not tenancy of immovable property......against respondent no. 1 that the petitioners are the lawfully protected sub-tenants of the suit property and for a further injunction that respondent no. 1 be restrained from executing the decree for eviction, which he had obtained against respondent no. 2, who was the tenant of respondent no. 1. the petitioners valued the claim in suit at rs. 300 and paid a court-fee stamp of bs. 30 on the plaint. respondent no. 1 by his application exh. 10 complained that the valuation made by the plaintiffs for the purpose of court-fees and jurisdiction was wrong and the court-fees paid by the plaintiffs on. the plaint was not proper. it was prayed by respondent no. 1 in the said application that the court should make an enquiry with regard to the valuation of the subject-matter of the suit.....
Judgment:

V.S. Desai, J.

1. The petitioners, who are the plaintiffs in the trial Court, filed Civil Suit No. 3500 of 1963 in the- Small Causes Court at Poona for a declaration against respondent No. 1 that the petitioners are the lawfully protected sub-tenants of the suit property and for a further injunction that respondent No. 1 be restrained from executing the decree for eviction, which he had obtained against respondent No. 2, who was the tenant of respondent No. 1. The petitioners valued the claim in suit at Rs. 300 and paid a Court-fee stamp of Bs. 30 on the plaint. Respondent No. 1 by his application exh. 10 complained that the valuation made by the plaintiffs for the purpose of Court-fees and jurisdiction was wrong and the Court-fees paid by the plaintiffs on. the plaint was not proper. It was prayed by respondent No. 1 in the said application that the Court should make an enquiry with regard to the valuation of the subject-matter of the suit for the purposes of Court-fees and jurisdiction under Section 8 of the Court-fees Act. On this application of respondent No. 1 the trial Court considered the question and came to the conclusion that the plaintiffs' suit was governed by Section 6(iv)(d) read with the third proviso to the said sub-section of the Bombay Court-fees Act, 1959, and that the plaintiffs had, therefore, to pay one half of the ad valorem fees on the market value of the suit property. It further came to the conclusion that the market value of the property could be held to be 20 times the annual rent. It accordingly directed the plaintiffs to pay Court-fees on the valuation arrived at by it. Aggrieved by this order the plaintiffs-petitioners have filed the present Civil Revision Application.

2. Mr. Shrotri, who appears for respondent No. 1, has taken a preliminary point that the revision application is not competent and in support of his said contention he has relied on Section 29(3) of the Bombay Rent Act. Section 29 of the Rent Act provides for appeals from decrees or orders in suits or proceeding's made by Courts exercising jurisdiction under Section 28 of the Rent Act. Under Sub-section (1) it is provided that in Greater Bombay from a decree or order made by the Court of Small Causes, Bombay, the appeal will lie to a Bench of two Judges of the said Court and elsewhere the appeal will lie to the District Court. The proviso to the said sub-section restricts; the right of appeal by providing that, no appeal will lie from decrees or orders in suits or proceedings falling within the four parts of the said proviso, the first being where from the decree or order in the suit or proceeding no appeal lies under the Civil Procedure Code. Under Sub-section (2) it is provided that except for the appeal that is provided under Sub-section (1), there will be no further appeal. Sub-section (3) then states:-

Where no appeal lies under this section from a decree or order in any suit or proceeding in Greater Bombay, the Bench of two judges specified in Clause (a) of Sub-section (1) and elsewhere the District Court may for the purpose of satisfying itself that the decree or order made was according to law, call for the case in which such decree or order was made and pass such order with respect thereto as it thinks fit.

3. Mr. Shrotri has argued that in view of the said provision that remedy of the plaintiffs against the order passed by the trial Court was to the District Court and not to the High Court under Section 115 of the Civil Procedure Code.

4. It seems to me doubtful whether interlocutory order in suits or proceedings, which are not appealable under the Civil Procedure Code and which by virtue of Section 105 of the said Code can be challenged only in the appeal from the decree or final order in the suit or proceedings are made revisable at an interlocutory stage by the Court to which the appeal lies under the said Sub-section. Under the first part of the first proviso to Sub-section (1) of Section 29 the right of appeal given under the main sub-section is made available subject to the provisions of the Civil Procedure Code. In other words, the availability of appeals from decrees and orders in suits or proceedings under the Rent Act is the same as under the ordinary law except that the appeals from the decrees or orders in the suits or proceedings under the Rent Act will lie to the special Courts of appeal specified in the Act. The further parts of the first proviso, however, take away the right of appeal from decrees and orders in certain suits and proceedings specified in the said parts irrespective of whether an appeal lies from such decrees or orders under the Code of Civil Procedure. It is therefore, arguable that power of revision given to the Courts of appeal under the Rent Act is only in respect of such decrees or orders in suits or proceedings where the right of appeal is taken, away by the provisions of Section 29 itself and not in respect of those from which no appeal lies under the Civil Procedure Code. I do not, however, find it necessary to go further into the matter and express my final opinion on it because even if it is assumed that the order in the present case was capable' of being revised by the District Court under Section 29(5) it will in no way affect this Court's jurisdiction to entertain and deal with it under its revisional power under Section 115 of the Civil Procedure Code. It is well-settled that even in cases where an appeal is provided to another Court or an alternative remedy is available, the High Court can exercise its powers under Section 115 of the Civil Procedure Code. (See, for instance, Sashi Kanta v. Nasirabad Loan Office Co. : AIR1936Cal786 Nilimaprova v. Kadambini Dasi : AIR1944Cal309 and Babu Ram v. Manohar Lal.) [1938] All. 22.

5. It cannot, therefore, be said that the present Civil Revision Application is not maintainable. The only question is whether this Court should entertain it. As I have already pointed out earlier, it does not appear to be quite clear whether the order is revisable by the District Court. Moreover, the revision application is already admitted and the point involved is an important one affecting' a large number of suits under the Rent Act. Even if the matter is returned to the District Court, it is quite likely to come back again to this Court in revision from the order passed by it. Even assuming, therefore, that the order was capable of being revised by the District Court under Section 29(5) of the Rent Act, I do not propose to decline to entertain it on that ground and will, therefore, proceed to deal with it on merits.

6. Proceeding then to the merits of the revision application, the short question to be considered is whether the plaintiffs' suit falls within Section 6(iv)(d) of the Court-fees Act as held by the trial Court. Section 6(iv)(d) reads as follows :-

In suits for declaration in respect of ownership, or nature of tenancy, title, tenure, right, lease, freedom or exemption from, or non-liability to, attachment with or without sale or other attributes, of immovable property, such as a declaration that certain land is personal property of the Ruler of any former Indian State or public trust property or property of any class or community-one-fourth of ad valorem, fee leviable for a suit for possession on the basis of title of the subject-matter, subject to a minimum fee of eighteen rupees and seventy five naye paise.

The third proviso thereto is:

Provided also that, in any of the cases falling under this clause except its first proviso, when in addition any consequential relief other than possession is sought the amount of fee shall be one half of ad valorem fee and when the consequential reliefs also sought include a relief for possession the amount of fee shall be the full ad valorem fee;

The view of the trial Court is that, as the plaintiffs have sought a declaration as to the nature of their tenancy and have sought a further consequential relief by way of injunction restraining respondent No. 1 from evicting them from the suit premises in execution of the decree obtained by him against respondent No. 2, the suit is governed by Section 6(iv)(d) read with the third proviso referred to above. It seems to me, however, that the plaintiffs' suit is not for a declaration of the nature of their tenancy of any immovable property. The word 'tenancy' as used in this provision relates to tenancy as understood under the ordinary law, which is interest in immovable property. The plaintiffs in the suit filed by them do not claim any tenancy rights in. any immovable property. Their suit is for a declaration that they, having been the sub-tenants of the original tenant, are, in view of the provisions of the Rent Act, entitled to be the statutory tenants of the landlord on the termination of the tenancy of the head-tenant in view of Section 14 of the Bent Act. In other words, the plaintiffs want a declaration that they are entitled to the status of statutory tenants and to the protection afforded to them under the Rent Act and consequent on this declaration they want an injunction against the landlord restraining him from evicting them from the suit premises. Statutory tenancy under the Rent Act, it is well settled, is not tenancy of immovable property. A statutory tenant has no rights or interest in any immovable property. As has been held by this Court in Rodrigues, In re4 the statutory tenancy to which an insolvent becomes entitled under the Bombay Rent Act is not his 'property'. The right of a statutory tenant is merely a personal right to retain possession. It is not a right, which he can assign or deal with and no relationship of landlord and tenant is created between him and the landlord (See State of Bombay v. Virendra, Motalhoy : AIR1951Bom175 ). Statutory tenancy does not involve a right of property but merely gives a personal right or a status of irremovability. As is often said, the term 'tenancy' used in relation with the right of a statutory tenant is really a misnomer. The declaration, therefore, which the plaintiffs have sought in the present case, cannot be considered as a declaration in respect of the nature of tenancy of any immovable property. It is not contended that the declaration sought for by the plaintiffs would, come within the ambit of Section 6(iv)(d) in any other manner excepting as a declaration of their status as statutory tenants. It must, therefore, be held that the plaintiffs' suit is not governed by Section 6(iv)(d) of the Bombay Court-fees Act. The appropriate provision of the Bombay Court-fees Act, which, in my opinion, will be' applicable to the plaintiffs' suit, is the provision of Section 6(iv)(j), which is as follows:-

In suits where declaration is sought, with or without injunction or other consequential relief and the subject-matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by this Act-thirty rupees.

In view of this provision, the plaintiffs were entitled to pay the fixed Court-fee of Rs. 30 on the claim in suit.

7. I accordingly hold that the Court-fee of Rs. 30 paid by the plaintiffs on the plaint was the correct Court-fee to be paid by them in the present case and the order of the trial Court, requiring them to pay ad valorem Court-fees on the value of the suit property as determined by it, is erroneous. The order passed by the trial Court is, therefore, set aside and the rule is made absolute. There will be no order as to costs.


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