Mehar Singh, C.J.
1. In this revision application from the order, dated April 2, 1966, of the Additional Subordinate Judge of Ambala City, the only question that requires consideration here is whether to the averments in the plaint of the applicant, who is the plaintiff in the suit, if is Section 7(v)(e) or 7(xi)(cc) of the Court-fees Act 1870, that applies, the trial Court having answered this question against the contention of the applicant that it is Section 7(xi)(cc) that applies to the avermants made by him in his plaint.
2.The ground-floor of a shop was taken on rent from the applicant by Om Parkash by a rent note of September 6, 1961, for a period of 11 months, the tenancy commencing from September 1 1961. On the expiry of 11 months. Om Parkash did not vacate the shop and continued in possession of it under the protection of the East Punjab Urban Rent Restriction Act, 19-19 (East Punjab Act 3 of 1949), and thus according to the very statement in the plaint of the applicant, he became a statutory tenant under the applicant. It is stated in the plaint of the applicant that Om Parkash continued paying rent to him, as statutory tenant, down to the end of February, 1964. He was murdered on March 12, 1964. The defendants who are respondents to this application, are the widow and children of Om Parkash deceased. The plaint says that they cannot claim any right in the shop in question and that they are in possession of ii without any right.
Having said this the applicant claims a decree for possession against them and a money decree for use and occupation of the shop from the date of the death of Om Parkash to the date of the suit. It is nowhere stated in the plaint that the respondents are holding over the shop as tenants. It is nowhere stated in the plaint mat they are tenants of any type under the applicant. In the plaint, a straight averment of the applicant has been that after the death of Om Parkash, his heirs have been in possession of the shop without any right and thus are liable to be dispossessed with a further liability to pay compensation for use and occupation of the shop after the death of Om Parkash. On such averments, the learned trial Judge, as stated, has come to the conclusion that this is not a case in which the applicant has asked for the recovery of immovable property from a tenant including a tenant holding over after the determination of tenancy, within the meaning and scope of Section 7(xi)(cc), but that the averments in the plaint bring the claim of the applicant squarely under Section 7(v)(e) of Act 7 of 1870.
3. It has been repeatedly held that the matter of Court-fee is to be decided upon on the nature of averments made in the plaint by the plaintiff and not having reference to anything said by the defendant by way of defence in his written statement. Respondents in their written statement in the present case have said that Om Parkash took the tenancy for and on behalf of the Joint Hindu Family and, therefore, they continue in possession of the shop as tenants being protected by East Punjab Act 3 of 1949. However, for the matter of Court fee this averment of the respondents is not to be taken into consideration. On the straight averments in the plaint of the applicant, the case is laid as one for possession of the shop with a claim for mesne profits for its use and occupation and it clearly falls under Section 7(v)(e) of Act 7 of 1870.
The argument of the learned counsel for the applicant, however, is that it is the substance of the plaint and the claim made in the plaint that hava to be seen, and that when thatis done, what the applicant has claimed in the plaint is in substance that the respondents are holding over after the determination of the tenancy in favour of Om Parkash deceased. The learned counsel further says that the death of Om Parkash deceased makes no difference. He explains that after the determination of the contractual tenancy at the end of the 11 months from the date of the rent note, Om Parkash was himself holding over as a tenant and he presses that the position has not changed with his death. In this respect he has referred to Vithal-das v. Gulam Ahmad, AIR 1927 Nag 156, in which the learned Judges held that although a tenant or a tenant holding over is a trespasser and not a tenant of any one kind after he has refused to comply with a proper notice to quit, the claim in a suit for ejectment of such a tenant must be regarded with reference to the facts existing when the cause of action accrued and not to the state of things when the suit was Bled. The learned Judges further observed that up to the moment he gives rise to a cause of action by refusing to quit on demand, a tenant is still a tenant, and that is the point of time to which the suit for his ejectment in consequence of that refusal must he referred. Hence a suit to eject such a tenant comes under Section 7(xi)(cc) and not under Section 7(v)(e)
Another case to which the learned counsel has made reference in this respect is Som Nath v. L. D. Desai, (1950) 52 Pun LR 460 = (AIR 1951 Punj 404), which was a suit for redemption of a mortgage and it was the tenant of the mortgagee who sought protection under the provisions of East Punjab Act 3 of 1949 against dispossession, and at the stage of the appeal, the learned Judges held that averments in the memorandum of appeal were to be seen in the matter of the decision of the question of Court-fee and that the case fell under Section 7(xi)(cc) of Act 7 of 1870. It is immediately apparent that these two cases have no bearing on the facts of the present case, whatever may have been the effect of the ratio of these two cases, if the suit was against Om Parkash, the statutory tenant. The claim of the applicant is not against Om Parkash, but is against his successors. So these two cases do not advance the argument on the side of the applicant.
The third case referred to by the learned counsel is In re. Annadhana Katlai. AIR 1951 Mad 206, But, that again was a case of a claim against a tenant on the termination of the tenancy.
4. It is settled that a person having protection of a statute like East Punjab Act 3 of 1949 is a tenant under the statute, he has no estate in the property in his possession and he has only a personal right to remain in possession because such right to possession is protected by the statute, as in the case of Om Parkash by the provisions of East Punjab Act 3 of 1949. On the death of Om Parkash, he transmitted no estate to his heirs He had no estate in the shop and so his heirs inherited, in fact, not even the right to possession of the shop. So, in so far as the heirs of Om Parkash are concerned, they are tenants of no type, there's is not a case ofholding over, and in their case there cannot be reference back to the determination of theoriginal tenancy, as might have been the case if Om Parkash was involved in the litigation after the determination of the tenancy.
It is in fact in the wake of this position that in the plaint, the applicant has clearly stated, that the respondents, as successors of Om Parkash deceased, are in occupation and possession of the shop without right and thus are liable to dispossession and also to pay compensation for use and occupation of the shop after the death of Om Parkash. It is only for the matter of Court fee that an argument has been rigged up on the side of the applicant that his plaint should be read us something what it does not say and, therefore, lesser Court-lee should be charged from him under Section 7(xi)(cc) and not under Section 7(v)(e) of Act 7 of 1870. This position urged on the side of the applicant is untenable and there is no room for interference with the order of the learned trial Judge. This revision application is, therefore, dismissed with costs, counsel fee being Rs. 60. The parties in the case are directed to appear in the lower Court on November 13, 1967.