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Jamila Bi Vs. Mahboob Bi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 152 of 1954
Judge
Reported inAIR1955Kant98; AIR1955Mys98
ActsCourt-fees Act, 1870 - Sections 7; Transfer of Property Act, 1882 - Sections 105
AppellantJamila Bi
RespondentMahboob Bi and anr.
Appellant AdvocateN.S. Narayana Rao, Adv.
Respondent AdvocateS.K. Venkatarangaiengar, Adv.
Excerpt:
.....petitioners does not inspire confidence of court. petitioners duty bound to explain delay satisfactorily by assigning cogent reason and showing bona fide. delay not condoned. - tarabai',air 1952 madh b 123 (f). though this court may not be bound by any of these decisions, yet it appears to me that the principle laid down by the high courts of bombay, calcutta and madras is more in consonance with justice, equity and good conscience and i am, therefore, inclined to follow those decisions......for purposes of court-fee and jurisdiction, she valued the suit at rs. 2,694-8-0 describing the suit as a suit for ejectment. in other words, the plaintiff valued the suit for purposes of court-fee under section 4(xi)(cc) of the mysore court-fees act, as if the suit was for the ejectment of a tenant. a preliminary issue was framed regarding the question of jurisdiction and the learned subordinate judge found that the valuation made by the plaintiff was not correct, that the valuation should have been under section 4(v)(b) of the court-fees act and that the value so arrived at was beyond the pecuniary limits of his court and he accordingly returned the plaint for presentation to pro-per court. the plaintiff took up this order in appeal and the learned (sic) additional district judge.....
Judgment:
ORDER

1. This is a revision petition preferred by the Petitioner-plaintiff against the order of the learned Third Additional District Judge, Bangalore, in Misc. A. 81/53, confirming that of the learned Principal Subordinate Judge, Banga-lore, in O. S. No. 25 of 1952-53, holding that the value of the subject matter of the suit was beyond the pecuniary jurisdiction of his Court and returning the plaint for presentation to proper Court.

2. The facts that have given rise to this petition are briefly as follows:

The petitioner-plaintiff filed a suit against the respondents-defendants in the Court of the learned Principal Subordinate Judge, Bangalore, alleging that the Respondents-defendants were in occupation of the schedule premises with her permission, that the said permission was subsequently revoked by her, that she had issued a notice to quit, that the defendants did not comply with her request and continued to be in occupation and that they should be evicted and possession of the premises secured to her. For purposes of Court-fee and jurisdiction, she valued the suit at Rs. 2,694-8-0 describing the suit as a suit for ejectment. in other words, the plaintiff valued the suit for purposes of court-fee under Section 4(xi)(cc) of the Mysore Court-fees Act, as if the suit was for the ejectment of a tenant.

A preliminary issue was framed regarding the question of jurisdiction and the learned Subordinate Judge found that the valuation made by the plaintiff was not correct, that the valuation should have been under Section 4(v)(b) of the Court-fees Act and that the value so arrived at was beyond the pecuniary limits of his Court and he accordingly returned the plaint for presentation to pro-per Court. The plaintiff took up this order in appeal and the learned (sic) Additional District Judge dismissed the plaintiff's appeal and confirmed the order of the learned Subordinate Judge. As against that order of the learned District Judge, this Revision Petition is filed.

3. It appears to me that there is no substance in this revision petition. The short point that arises for consideration is whether the amount of Court-fee payable by the plaintiff for adjustment of a licensee from a house which he was permitted to occupy, is under Section 4 (xi) (cc) of the Court-fees Act as contended on the side of the plaintiff, or under Section 4 (v)(b) of the Court-fees Act as urged on the side of the defendants. I think that the proposition of law as enunciated on the side of the defendants has to be accepted as sound.

4. It was contended by the learned Counsel for the petitioner that the subject-matter of her suit is the right to eject the defendants, that it is the value of that right that has to be taken as the value over which plaintiff has to pay court-fee and that the proper section applicable is Section 4(xi)(cc) of the Court-fees Act. in other words, his contention was that the subject-matter of the suit was not the house jn which the defendants were residing but only the right of the defendants to remain therein.

According to him, his claim is analogous to the claim of a landlord to evict a tenant and therefore Section 4 (xi) (cc) is applicable for purposes of court-fee. I think that the proposition of law propounded for the petitioner is not correct, nor sound. in support of his case, the learned counsel for the petitioner relied on a case reported in -- 'Mt. Barkatunnissa Begum v. Mt. Kamiza ratma', AIR 1927 Pat' 140 (A). No doubt, it is !aid down therein that a suit to eject a licensee is a suit for ejectment covered for purposes of court-fee by Clause (v) of Section 7, Court-fees Act; and there does not appear to be any decision of our own High Court bearing on this subject. As a matter of fact, the learned counsel appearing for the petitioner, and respondents represented that there was no such case. But the other High Courts of. the Indian Union have differed from the principle enunciated by the Patna High Court in the aforesaid decision and held to the contrary.

5. In -- 'Ratilal v. Chandulal', AIR 1947 Bom 482 (B), it is held that where a plaintiff claims the possession of a house on the ground that the defendant is in possession as a licensee, the court-fee payable is under Section 7(v)(e) of the Court-fees Act according to the market-value of the house. This decision has been followed by the Calcutta High Court in the case reported in - 'Satish Kumar v. Sailabasini Devi', AIR 1949 Cal 621 (C). That was also a case against a licensee for possession after revocation of the license. His Lordship has held in that case that the plaintiff cannot be allowed to put his own valuation, that the court-fee payable was under Section 7(v)(e) of the Court-fees Act, and that for purposes of court-fee, valuation should be made in one of the ways provided in the aforesaid section. in coming to that decision. His Lordship disagreed with a previous decision of that very Court in -- 'Basiram Christian y. Ganesh Chandra Das', 24 Cal WN (Notes) 167 (D), and also disagreed with the decision of the Patna High court referred to already and they preferred to follow the decision of the Bombay High Court in this respect. Again, the High Court of Madras has in -- 'Nidugonda Rudramani v. C. Srisailam', : AIR1954Mad200 (E) preferred to follow the decision of the Bombay High Court in this behalf, and so also the Madhya Bharat High Court reported in -- 'Martandrao Tatyaji v. Tarabai', AIR 1952 Madh B 123 (F). Though this Court may not be bound by any of these decisions, yet it appears to me that the principle laid down by the High Courts of Bombay, Calcutta and Madras is more in consonance with justice, equity and good conscience and I am, therefore, inclined to follow those decisions.

6. Section 4(xi) (cc) of the Court-fees Act governs suite between the landlord and tenant i.e., that provision deals with suits for recovery of immovable property from a tenant including a tenant holding over after the determination of the tenancy. That section prescribes a cheap remedy for the recovery of immovable property in possession of a tenant including a tenant holding over. That section cannot be made applicable to the case of a licensee in possession. it need hardly be stated that there is a lot of difference between a tenant and a licensee. A lease is a transfer of interest in land and the estate transferred to the lessee is called the 'lease-hold'. A license is merely a personal right and does not amount to any interest in 'immovable property. Therefore a personal right to possession cannot be termed as a lease and that personal right does not create any interest in immovable property. A license is merely a permission to do some act, which without such permission it would be un-lawful to do. Thus it is seen that the term 'license' is not analogous to the expression 'lease'. Both are quite different. Therefore there is no substance in contending that a suit to eject ar licensee comes under Section 4 (xi) (cc) of the Court-fees Act. in the present case, the allegations made in the plaint are that the defendants are the licensees and that the license has been revoked. The subject-matter of the suit is not merely the right to eject but also for recovery of possession from the licensees. The subject-matter of the suit should be valued in the manner provided in Section 4(v) (b) of the Court-fees Act. When so calculated, the value of the subject-matter of the suit goes beyond the pecuniary limits of the Court of the learned Subordinate Judge, Bangalore, as found by him and also as concurred by the learned District Judge. I think that, under these circumstances, the decision of the learned District Judge, has to be affirmed.

7. in the result, the order of the learned Third Additional District Judge is confirmed and his petition stands dismissed with costs, Advocate's fee Rs. 15/-.

8. Petition dismissed.


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