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Godawaribai Vs. Siddhagopal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application Nos. 301, 302 and 321 of 1959
Judge
Reported in(1960)62BOMLR927
AppellantGodawaribai
RespondentSiddhagopal
DispositionAppeal Dismissed
Excerpt:
.....under section 7(v)(b) or section 7(xi)(cc)-tenant whose tenancy terminated by landlord whether a tenant holding over under section 7(xi)(cc).; a person who is inducted on the land as a tenant and whose tenancy has been terminated by the landlord must be regarded as a tenant holding over for the purposes of section 7(xi)(cc) of the court-fees act, 1870.; a suit instituted by the plaintiff against his tenant for possession of certain land, after terminating the tenancy by serving a valid notice, was valued by the plaintiff for purposes of court-fees under s. l(v)(b) of the court-fees act, 1870. on the question whether the proper provision applicable for court-fees was section 7(v)(b) or section 7(xi)(cc) of the act:-; that the principle underlying the maxim generalia specialibus non..........against his tenant for the recovery of his immovable property from his tenant, including a tenant holding over after the determination of the tenancy, the suit is to be valued according to the amount of the rent of the immovable property payable for the year next before the date of presenting the plaint. under the agreements of lease between the defendant and the respective plaintiffs, the defendant was liable to hand over half the crops realised by him to each of them. the learned judge, therefore, asked the plaintiffs to value the crops received by him or her in the year preceding the suit and to pay court-fees on such valuations. the plaintiffs did not do so because that would entail paying larger court-fees and have come up in revision to this court.2. these revision.....
Judgment:

Mudholkar, J.

1. These three revision applications arise out of three different suits for possession instituted by the plaintiff in each case against his tenant for possession of the field let out to him. According to each of the plaintiffs, the tenancy of the defendant was terminated by serving a valid notice. The suit in each case was valued under Section 7(v)(b) of the Court-fees Act. When the plaints in these three matters came up before the Court, it formed the opinion that the proper provision applicable for Court-fees in these cases was Section 7(xi)(cc). Under the former provision, where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or where the land forms part of such estate and is recorded as aforesaid and the land revenue is not settled permanently, the value of the subject-matter will be twenty times the revenue so payable, and the plaintiff is required to pay Court-fees upon such value. Under the latter provision, in a suit by a landlord against his tenant for the recovery of his immovable property from his tenant, including a tenant holding over after the determination of the tenancy, the suit is to be valued according to the amount of the rent of the immovable property payable for the year next before the date of presenting the plaint. Under the agreements of lease between the defendant and the respective plaintiffs, the defendant was liable to hand over half the crops realised by him to each of them. The learned Judge, therefore, asked the plaintiffs to value the crops received by him or her in the year preceding the suit and to pay Court-fees on such valuations. The plaintiffs did not do so because that would entail paying larger Court-fees and have come up in revision to this Court.

2. These revision applications were heard by my learned brother Badkas J., and as there is no decision of this Court on the point, he thought it fit that these revision applications should be heard and decided by a Division Bench. Having heard the arguments, in our opinion, the principle underlying the maxim 'generalia specialibus non derogant' would apply to this case. In Phul Kumari v. Ghanshyam Misra the Judicial Committee of the Privy Council had to consider the question as to which particular article applied to a certain kind of suits. In the course of their decision their Lordships observed at (p. 25) :

Having thus ascertained what is the nature of the suit, their Lordships turn to the Court-fees Act to see whether such actions of appeal are specifically dealt with; for it is only if they are not specifically dealt with that the task arises of finding to which group of cases this is to be assigned.

Their Lordships thus applied the aforesaid maxim.

3. Now, out of the two provisions, Section 7(v) and Section 7(xi)(cc), the latter must clearly be regarded as a special one and, therefore, the plaintiff in each case must be required to value his suit under this provision. Mr. Mandlekar, who appears for the plaintiffs, however, says that the defendant is not a tenant holding over but is only a tenant at sufferance and, therefore, this provision, i.e. Section 7(xi)(cc), would not apply. We cannot accept this argument. The precise provision runs thus:

In the following suits between landlord and tenant:-...

(cc) for the recovery of immovable property from a tenant, including a tenant holding over after the determination of a tenancy,...

according to the amount of the rent of the immovable property to which the suit refers, payable for the year next before the date of presenting the plaint.

It will thus be clear that this provision is not restricted to suits against tenants holding over after the determination of the tenancy but applies to all suits between landlord and tenant for the recovery of immovable property from a tenant. The word 'tenant' used in this section must be given its natural meaning and be deemed to include a tenant at sufferance. Again the section itself says, 'including a tenant holding over after the determination of a tenancy'. Whatever may he the meaning ascribed to the expression 'tenant holding over' in the Transfer of Property Act, it is clear that the Legislature did not choose to give it a restricted meaning in this Act. A parson who was inducted on the land as a tenant and whose tenancy has been terminated by the landlord is regarded by the Legislature for purposes of this provision to be a tenant holding over. In the circumstances, therefore, it must be held that it is this provision, i.e. Section 7(xi)(cc) of the Court-fees Act, which governs this cane.

4. Mr. Mandlekar then said that when a case falls under two provisions of the Court-fees Act, the plaintiff should have the option of valuing his suit according to that provision which requires him to pay less Court-fee. If a case falls under two provisions of the same kind, that is to say, two general provisions or two special provisions, perhaps the plaintiff could be said to have the option of valuing his suit under such of those two provisions as gives him greater relief; but where, as here, one provision is a general one and the other is a special one, the plaintiff cannot possibly have an option to value his suit either according to the general or according to the special provision. He must value it according to the latter.

5. Upon this view, we hold that the Court below was right in requiring the plaintiff in each of the three suits to value his respective claim under Section1(xi)(cc) of the Court-fees, Act and dismiss these applications. We, however, make no order as to costs.


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