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Sadhya Chandra Behera Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 238 of 1960
Judge
Reported inAIR1962Ori123
ActsCourt-fees Act, 1870 - Sections 7
AppellantSadhya Chandra Behera
RespondentState of Orissa and ors.
Appellant AdvocateR.C. Misra, Adv.
Respondent AdvocateAdv. General and ;B.K. Pal, Adv.
DispositionRevision dismissed
Cases ReferredFurzand All v. Mohanthlal Puri
Excerpt:
.....division bench decision of this court in, sadananda sahu v. mohanthlal puri, ilr 32 cal 268 that section 7(xi)(e) does not apply to a suit for possession of an occupancy holding brought by the tenant against the landlord and as well as the person whom the landlord has inducted into the land;.....plaintiff; (b) granting permanent injunction restraining the defendant no. 4 from entering on the suitland and defendant no. 2 and 3 from interfering with possession of the plaintiff and from executing any deed in favour of the defendant no. 4; (c) for confirming the possession of the plaintiff: on the plaint, filed by the plaintiff, the stamp-reporter reported that ad valorem fee be assessed at rs. 1,500/-. the learned munsif came to take the view that the case came under section 7(iv)(c) and not section 7(xi) (d) or (e) of the court-fees act as aforesaid and directed valuation, of the suit at rs. 1000/- as hereinbefore stated hence this civil revision. 4. section 7(iv)(c) provides that the amount of fee payable under the act shall be computed tor a declaratory decree and consequential.....
Judgment:
ORDER

S. Barman, J.

1. The plaintiff is the petitioner in this Civil Revision, directed against an order of the learned Munsif, Berhampur, whereby he directed that the plaintiff shall value the suit land at Rs. 1000/- and pay proper Court fee after deducting the fees already paid.

2. The only point for consideration in this Civil Revision is whether the case comes under Section 7(iv)(c) or Section 7(xi) (d) or (e) of the Court-fees Act, 1870 (Act VII of 1870). The settled legal position for determination of such question is that it is the real nature and substance of the plaint in the suit and not merely the form which has to be carefully considered by Courtin this context. The Court must take care not to be misled by dexterity or skill of draftsmanship of the pleading but must always go deeper in order to scrutinise what is the real nature of the suit; if really the real purpose behind the suit is to finally adjudicate the question of title involved particularly as against the third party alienee and without the determination of which the relief in respect of the property in suit cannot be obtained, it cannot be taken to be purely a suit for relief other than for declaration of title and thus cannot be stamped on the basis of a suit other than a suit for declaration of title; indeed the) scrutiny ought to be made cautiously; the Court is not to import into the plaint anything which it does not really contain, whether actually or by necessary implication. That is to say, the Court should take the plaint as it is and not as it may j think it ought to have been in the way that the i relief,--not asked for deliberately, and the i plaintiff takes the risk in that behalf--cannot be imported into the plaint. The test in such cases was clearly laid down in a recent Division Bench decision of this Court in, Sadananda Sahu v. State of Orissa, Civil Revn. No. 96 of 1960, D/- 18-1-1961 unreported (Since reported in AIR 1962 Orissa 102).

3. In the light of the above position in law, I have to consider the facts of the present case for determination of the question of court-fees, On which the trial court had passed the order as aforesaid.

In the present case, the facts are these; On March 9, 1948 the plaintiff took an yearly lease of 5 acres of land from the Public Works Department on a premium of Rs. 698/3/2; the plaintiff executed a lease deed, in favour of the Public Works Department, on condition that the plaintiff would maintain the land, pay rental of Rs. 27/8/- per annum and reclaim the land which was fallow land. Up to June 16, 1959 the plaintiff remained in possession on payment of yearly rent.

On June 16, 1959 the S.D.O. Irrigation Department served notice on the plaintiff intimating that the land would be put to auction on June 29, 1959 and leased out to the highest bidder; thereupon the plaintiff made certain representations against such notice. On June 26, 1959 the plaintiff was served with notice under Section 80 of the Civil Procedure Code (Sic). Then on June 29, 1959 the auction was held, which, however, was adjourned till July 13, 1959 for want of bidders. On July 13, 1959 the plaintiff is stated to have made a bid for Rs. 100/- per year, which wan the highest bid; the department instead of accepting the plaintiffs bid, however, leased out the land in favour of opposite party No. 4 herein (defendant No. 4 in the suit) whose bid was for Rs. 75/- per year; thereupon the plaintiff filed T. S. No. 116 Of 1959 in the Court of the Munsif for following reliefs:

'..........to pass at decree

(a) declaring that the plaintiff is the owner of the suit land and the defendants have no right to interfere with possession of the plaintiff;

(b) granting permanent injunction restraining the defendant No. 4 from entering on the suitland and defendant No. 2 and 3 from interfering with possession of the plaintiff and from executing any deed in favour of the defendant No. 4;

(c) for confirming the possession of the plaintiff: On the plaint, filed by the plaintiff, the Stamp-Reporter reported that ad valorem fee be assessed at Rs. 1,500/-. The learned Munsif came to take the view that the case came under Section 7(iv)(c) and not Section 7(xi) (d) or (e) of the Court-fees Act as aforesaid and directed valuation, of the suit at Rs. 1000/- as hereinbefore stated Hence this Civil Revision.

4. Section 7(iv)(c) provides that the amount of fee payable under the Act shall be computed tor a declaratory decree and consequential relief to obtain a declaratory decree or order, where consequential relief is prayed,--according to the amount, at which the relief sought is valued in the plaint or memorandum of appeal; and in suck suit the plaintiff shall state the amount at which he values the relief sought. Section 7(xi) (d) and (e) provide that the amount of fee payable under this Act shall be computed,--in suit between landlord and tenant,--'to contest a notice of ejectment'' and 'to recover the occupancy of immoveable property from which a tenant has been illegally ejected by the landlord,'--according to the amount of rent of immoveable property to which the suit refers, payable for the year next before the date of presenting the plaint. In the present case, it is clear, on a plain reading of the plaint, that the plaintiff had filed the suit claiming the owner's interest and not the tenant's interest, as is evident from prayer (a) of the plaint itself and furthermore in paragraph 6 of the plaint the plaintiff states as follows:--

'6.... .... .The plaintiff further gets an ownership as he paid a, royalty of Rs. 698-3-2 for getting the land. Further assuming but not admitting that the plaintiff's interest is that of a lessee--only from year to year the defendants 2 and 3' cannot forcibly take possession or indirectly oust the defendant without taking steps available under Transfer of Property Act or under the P.L.E. Act......... any right by merely bidding at theauction.'

Thus, there is a specific prayer in the plaint itself, where he claims owner's interest which cannot be ignored There is no whisper in the plaint that the plaintiff is claiming the tenant's interest, so as to bring it within Section 7(xi) (d) or (c) as a suit between landlord and tenant, as contended here on behalf of the plaintiff.

5. Mr. R.C. Misra, learned counsel for the plaintiff petitioner stressed on the aspect that the fact,--that there was a third party, namely, defendant No. 4 in whose favour the department had executed the lease--did not change the character of the suit, which, according to him,--was a suit between landlord! and tenant. In support of his proposition he relied on a decision of the Nagpur High Court Pralhad Narayan v. Smt. Mankuar Bai, AIR 1954 Nag 124 and also a Sind decision reported in Secy. of State for India v. Dinshaw Navroji, AIR 1925 Sind 275. The viewexpressed in, these decisions is to the effect that in a suit for possession by a tenant against his landlord, a tenant cannot be compelled to pay court-fee on the market value of the property, merely because another person has been brought on the premises; that the real possession, in such a case, is of then landlord and not of the third party and the suit falls under Section 7(xi)(e). With great respect, I do not agree with either of these decisions. The correct principle is laid down in Calcutta High Court decision reported in Furzand All v. Mohanthlal Puri, ILR 32 Cal 268 that Section 7(xi)(e) does not apply to a suit for possession of an occupancy holding brought by the tenant against the landlord and as well as the person whom the landlord has inducted into the land; the court-fee payable on the plaint in such a case must be computed on the market value of the property which the plaintiff; seeks to recover. In my opinion, apart from pleadings in the plaint, the real issue in the suit involves consideration of the question of title between rival claimants to the suit land, namely, the plaintiff and the defendant No. 4 who is opposite party No. 4 herein as competitive bidders for the suit land as aforesaid. This aspect, by itself, is decisive on the question whether the suit was in substance one for declaration of title with consequential relief, namely, of possession as prayed for in the plaint itself.

6. Mr. R. C. Misra, learned counsel for the plaintiff petitioner also contended that,--assuming Section 7(iv)(c) applied,--the amount assessed was excessive in view of the Orissa amendment of the Section. This argument is successfully repelled by Mr. B.K. Pal, learned Counsel,--appearing on behalf of the defendant No. 4, being opposite party No. 4 herein,--submitting that the trial Court, in the present case, was lenient, because, under Section 7(v)(c), the plaintiff was liable to 15 times net profits from the land; thus the plaintiff,--according to the learned counsel,--is liable to the extent at least 15 times of Rs. 100/-which was the annual rental bid by the plaintiff that is to say, Rs. 1,500/- while in fact the suit) had been valued by the trial Court at Rs. 1000/-only. The plaintiff's contentions, thus, are not tenable.

7. In this view of the case I am satisfiedthat the trial court, in exercise of his jurisdiction,acted legally and there is no irregularity in hisorder, as alleged. The order of the trial Court istherefore upheld. The revision is accordingly dismissed. There will be no order as to costs of thisCourt.


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