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Mulla Maqbool HussaIn and ors. Vs. Seth Chandmal - Court Judgment

LegalCrystal Citation
SubjectContract;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 170 of 1957
Judge
Reported inAIR1959MP430
ActsCourt Fees Act, 1870 - Sections 7
AppellantMulla Maqbool HussaIn and ors.
RespondentSeth Chandmal
Appellant AdvocateD.G. Bhalerao, Adv.
Respondent AdvocateS.D. Sanghi, Adv.
DispositionAppeal dismissed
Cases Referred and Nihal Singh v. Sewa Ram
Excerpt:
.....to some relief on basis of the contract with the defendants 2 and 3 even if he failed to prove the contract with defendant no. 1. however, the suit will fail wholly if the contract with defendant no. under section 27 of the specific relief act, a contract can be specifically enforced against aperson claiming under a title which arises subsequently to the contract, except where the transferee has paid money in good faith without notice of the contract......that decision has been reversed by the additional district judge, bhopal.2. the suit was for specific performance of a contract to lease and also delivery of possession of certain premises belonging to the defendant no. 1 and held by the defendants 2 and 3 as lessees. the allegations in the plaint are that all the three defendants had entered into an agreement withthe plaintiff that the defendants 2 and 3 would vacate the premises on 16-10-54 and the defendant no. 1 shall then lease them to the plaintiff on terms detailed in the plaint. the plaintiff valued the suit under section 7 clause (x) (c) of the court-fee act (referring to as the act in this order) as a suit for the specific performance of a contract of lease. the defendants contended that the suit should have been valued.....
Judgment:
ORDER

T.C. Shrivastava, J.

1. This petition for revision has been filed by the defendant. He had objected in the Trial Court that the suit was undervalued both for the purposes of court-fee and jurisdiction. The objection was upheld by the Trial Court but on appeal that decision has been reversed by the Additional District Judge, Bhopal.

2. The suit was for specific performance of a contract to lease and also delivery of possession of certain premises belonging to the defendant No. 1 and held by the defendants 2 and 3 as lessees. The allegations in the plaint are that all the three defendants had entered into an agreement withthe plaintiff that the defendants 2 and 3 would vacate the premises on 16-10-54 and the defendant No. 1 shall then lease them to the plaintiff on terms detailed in the plaint. The plaintiff valued the suit under Section 7 Clause (x) (c) of the Court-fee Act (referring to as the Act in this order) as a suit for the specific performance of a contract of lease. The defendants contended that the suit should have been valued under Section 7(v) of the Act as the relief for possession of the house is sought.

3. The trial Court found that market value of the house is Rs. 8000/- and this ought to have been the value for purposes of Court-fees and jurisdiction. The appellate Court held that the suit property fell within Section 7(x)(c) and was properly valued,

4. The question of adequacy of court-fees is to be decided on the allegations in the plaint. It does not depend upon the defence or the facts which may Be ultimately proved in the case. It is not at all germane to the question that the lefendants 2 and 3 deny the contract or that they may object to its validity or binding nature for want of consideration or for any other reason nor is the question whether specific performance can be decreed or not on the finding that there was no contract with the defendants 2 and 3 as alleged, Shri Bhalerao for the petitioner does not dispute this position.

5. The contention advanced by him is that the alleged contract amounts to two separate contracts, one with the defendant No. 1 in respect of the lease and the other with the other defendants who are said to have agreed to vacate the premises. It is in respect of this second contract that he contends that the suit should be separately valued as a suit for possession. Shri Sanghi for the respondent contends that what he wants is pecific performance of the contract of lease and he relief of possession is only incidental to it. According to his argument, the contract with the defendants 2 and 3 cannot be treated as independent.

6. I have no doubt that the contention raised by Shri Sanghi is correct on the allegations in the plaint. It is the contract of lease by the defendant No. 1 which is sought to be enforced. The relief of possession is implicit in the specific performance of such a contract and there would have been no difficulty in accepting the plaintiffs contention if the suit were for specific performance and possession against the defendant No. 1 alone.

It is the existence of the other defendants as parties to the contract which creates a complication. Even then, it is clear, that the contract cannot be treated as forming two independent parts. If it were so, the plaintiff would be entitled to some relief on basis of the contract with the defendants 2 and 3 even if he failed to prove the contract with defendant No. 1. However, the suit will fail wholly if the contract with defendant No. 1 is not proved irrespective of any contract with the other defendants.

On the other hand, the contract with defendants 2 and 3 comes in for consideration only if that with the defendant 1 is proved. It is in enforcing specific performance only that the existence or non-existence of the contract with other defendants has to be taken into account to see whether the defendant No. 1 would be in a position to perform the contract specifically.

7. Shri Bhalerao relies upon the decision in Ganesh v. Moreshwar, AIR 1951 Bom 352. In that case, the landlord had agreed to lease certain premises to the plaintiff held by an already exiting, tenant whose, lease was about to expire. This agreement was to take effect from the date of the existing lease was to expire but the tenant did not vacate. The plaintiff then sued the landlord and the tenant holding over. Hq claimed that his suit fell under Section 7(xi)(cc) of the Act. It was held that that sub-clause applied only to suits brought by the landlord.

The contention that the plaintiff was trying to enforce the right of the landlord to eject the tenant holding over was repelled and it was held that the suit was governed by Section 7(v). At first sight, facts of the case relied upon appear to be similar to the facts in the instant case; but they are distinguishable. There was no allegation in that case that the existing tenant was a party to the contract and was bound by it. Then, the question of the applicability of Section 7(x) was not at all considered. The arguments were confined apparently to Section 7(xi)(cc) and as these were not acceptable, the case was considered to fall under the general provision in section 7(v).

8. In Pralhad Narayan v. Mankuawarbai, AIR 1954 Nag 124, it has been laid down that a tenant cannot be compelled to pay court-fee on the market value of the premises merely because another person has been brought on the premises. The reason for the decision is that the person holding from the landlord subsequent to the lease to the plaintiff is bound by the prior agreement and must deliver possession. The character of the suit thus remains that of a suit between landlord and tenant. In this case the question related to the applicability of Section 7(xi)(e) but the principles on which the decision was based is helpful.

9. In Gajanan Nanaji v. Rajeshwar Krishnaji, AIR 1950 Nag. 237 a suit for leasehold premises by a lessee was held to fall under Section 7(v) on the ground that it is not a suit for possession of leasehold rights but for a specific house. In this and other cases relied upon by the applicant, possession was sought on the basis of a pre-existing lease. None of them was for specific performance of a contract of lease which is the subject matter of Clause (x) of Section 7 in the Act.

A suit for possession after specific performance differs widely from a suit for possession on the basis of a pre-existing title. A suit falling under the latter class would be governed by Clause (v). A suit for specific performance is specially provided for in Clause (x) and so long as that clause applies, the general provision in Clause (v) would be excluded.

10. The question of the applicability of Clause (x) arose for consideration in the context of specific performance of a contract for sale, in Muljibhai v. Bai Chanchal, AIR 1945 Bom 81 where it was observed:

'It is thus clear that possession is not and cannot be claimed, in a case where there has been a contract of pale, independently of such contract; and specific performance of such contract must be sought in order to obtain possession, The present suit must therefore, be deemed to be a suit for specific performance of a contract of sale: the mere fact that possession is claimed would not entitle the court to ignore its essential character as a suit for specific performance of such a contract'

And further

'If he does not ask the court to help him in obtaining a title, the court is bound to dismiss his suit out of land. He must therefore ask for the title to be given to him, and the Court can do that only by granting him specific performance of the contract of sale.'

It was ultimately held in this case that the prayer for specific performance included not only the granting of a registered instrument but also the granting of possession. It is amply clear from this decision which is based on the views expressed in Sundera Ramanujam v Sivalingam Pillai ILR 47 Mad 150: (AIR 1924 Mad 360) and Nihal Singh v. Sewa Ram, ILR 38 All 292: (AIR 1916 All 228) that a suit for specific performance of a contract to sell where the plaintiff seeks to force the vender to execute the sale deed and also to hand over possession of the property should be stamped under Section 7(x)(a) of the Act. On the same reasoning, a suit for specific performance of the demised premises would fall under Sub-clause (c) ofClause (x).

11. The same conclusion is reached in another way. Under Section 27 of the Specific Relief Act, a contract can be specifically enforced against aperson claiming under a title which arises subsequently to the contract, except where the transferee has paid money in good faith without notice of the contract. In such cases, the third parties are liable under the contract sought to be specifically enforced and the character of the suit does not change by impleading them for claiming possession in enforcement of the contract.

In the instant case, the defendants 2 and 3 are alleged to have been parties to the contract itself and thus have full notice thereof. After the expiry of the lease in their favour, their possession would be attributable to a contract, express or implied which came into existence after the plaintiff's contract. They would thus be persons against whom specific performance can be enforced under Section 27 of the Specific Relief Act and impleading them as defendants would not change the character of the suit.

12. I hold that the suit as framed is a suit for the specific performance of a contract of lease and court-fee is payable under Sub-clause (c) of Clause (x) of Section 7 of the Act. The decision of the appeal court is thus correct.

13. The petition for revision fails and is dismissed with costs.


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