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Harishchandra Golcha Vs. Jiwaji Rao Cotton Mills Ltd., Gwalior - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 394 of 1971
Judge
Reported inAIR1972MP150; 1972MPLJ646
ActsCourt Fees Act, 1870 - Sections 7
AppellantHarishchandra Golcha
RespondentJiwaji Rao Cotton Mills Ltd., Gwalior
Advocates:P.W. Sahasrabudhe, Adv.
DispositionPetition dismissed
Cases ReferredShankerlal v. R.S. Richpal
Excerpt:
- ..........(b) .....(c) .....(cc) for the recovery of immovable property from a tenant, including a tenant holding over after the determination of a tenancy.(d) .....(e) .....(f) .....5. learned counsel for the applicant urged that there is a distinction between a tenant-at-sufferance and a tenant-holding-over. according to him a tenant-at-sufferance is one who continues in possession of the premises after the termination of the tenancy against the wishes of the landlord while a tenant-holding-over is one who continues in possession of the premises after the determination of the tenancy with the consent of the landlord. he urged that the aforesaid provision would therefore be applicable to a tenant-holding-over, but not to a tenant-at-sufferance.in support of his contention he relied on a.....
Judgment:
ORDER

S.M.N. Raina, J.

1. This is a revision petition under Section 115 of the Code of Civil Procedure.

2. The petitioner (hereinafter referred to as the applicant) has been occupying the premises as a tenant of the plaintiff non-applicant. The non-applicant filed a suit against the applicant for eviction on the ground that the tenancy had been duly determined. The suit is being resisted by the applicant.

3. It appears that the plaintiff had paid court-fees under Section 7(xi)(cc) of the Court Fees Act, on the basis of annual rent. The applicant raised the objection that the Court fees paid was not proper and that the plaintiff non-applicant was liable to pay ad valorem Court fees on the value of the property. This objection was disallowed by the trial Court. Being aggrieved thereby the applicant has filed this revision petition.

4. The only point for determination in this case is whether the suit is governed by Section 7(xi)(cc) of theCourt Fees Act. The said section is reproduced below for facility of reference:

'7. Computation of fees payable in certain suits:-- The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:--(i) .....

(ii) .....etc.

(xi) Between landlord and tenant:--In the following suits between landlord and tenant:--

(a) .....

(b) .....

(c) .....

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

(d) .....

(e) .....

(f) .....

5. Learned counsel for the applicant urged that there is a distinction between a tenant-at-sufferance and a tenant-holding-over. According to him a tenant-at-sufferance is one who continues in possession of the premises after the termination of the tenancy against the wishes of the landlord while a tenant-holding-over is one who continues in possession of the premises after the determination of the tenancy with the consent of the landlord. He urged that the aforesaid provision would therefore be applicable to a tenant-holding-over, but not to a tenant-at-sufferance.

In support of his contention he relied on a decision of the Oudh High Court in Punjab National Bank Ltd. v. S.B. Chaudury, AIR 1943 Oudh 392. In the said case the learned Judges referred to Mitra's Transfer of Property Act (9th Edition) in which a similar distinction was drawn between a tenant-at-sufferance and a tenant-holding-over. It appears that this distinction is based on the English law. The question, however, is whether we must import this distinction here for the purposes of construing Section 7(xi)(cc) of the Court fees Act.

6. The expression 'a tenant-holding-over' has not been defined in the Act and looking to the entire scheme of Section 7(xi)(cc) of the Act it would appear that the expression has been used in a wider sense so as to include a tenantat-sufferance. In other words, it means a tenant who holdes over or continues to remain in possession of the premises after the termination of the tenancy. In fact, no question of filing a suit for eviction would arise where a tenant continues in possession with the consent of the landlord. Thus we need not construe the expression 'tenant-holding-over' in theaforesaid provisions in the restricted sense in which it is used in the English law.

7. In the Oudh case there was no question of Court fees. It is, therefore, of no help in construing the provisions of the Court Fees Act. In Vithaldas v. Gulam Ahmad 23 Nag LR 5 -- (AIR 1927 Nag 156) the expression 'a tenant-holding-over' was construed to mean a tenant who has refused to comply with a proper notice to quit and is as such a trespasser and it was held that a suit to eject such a tenant falls under Section 7(xi)(cc) of the Court Fees Act. This decision was followed by the Lahore High Court in Chhabba Ram v. Nathu Ram, AIR 1941 Lah 39. It was pointed out in that case that in every suit for ejectment of a tenant a notice has to be served on the defendant and if service of such a notice by itself is sufficient to alter the status of the defendant into that of a trespasser, the provisions of Section 7(xi)(cc) of the Act would be rendered nugatory. I entirely agree with this view.

8. I, therefore, hold that Section 7(xi)(cc) is applicable to a suit for eviction of a tenant who continues in possession after the determination of his tenancy I may here refer to the decision of this Court in Shankerlal v. R.S. Richpal, 1961 MP LJ 1175. It was held in that case that Clause (xi) (cc) of Section 7 of the Court Fees Act is comprehensive and covers every suit for recovery of immovable property from a tenant. Thus where a suit is founded on relationship of landlord and tenant the aforesaid provisions shall be applicable.

9. For the reasons given above the finding of the lower court that the suit is governed by Section 7(xi)(cc) of the Court Fees Act for the purposes of Court Fees is proper and does not call for any interference in revision.

10. No other point was pressed before me.

11. The petition, therefore, falls and is hereby summarily dismissed.


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