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Umedchand Makanji Jhaveri Vs. Firm Mistry Lalji Jhina and Sons and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 544 of 1960
Judge
Reported inAIR1963Guj45; (1963)0GLR274
ActsCourt-fees Act, 1870 - Sections 7 and 7(11); Hotel and Lodging House Rates Control Act, 1947 - Sections 5(3)
AppellantUmedchand Makanji Jhaveri
RespondentFirm Mistry Lalji Jhina and Sons and ors.
Appellant Advocate N.R. Oza, Adv.
Respondent Advocate C.M. Trivedi, Adv.
DispositionApplication dismissed
Cases ReferredHaladhar Pal v. Mongal Raja
Excerpt:
.....- act of 1870 is fiscal enactment and section 7 (11) provides for suits only between landlords and tenants - suit not only between landlords and tenant but also between tenant and defendants nos. 4 and 5 - such defendants cannot be said to be landlords of plaintiff-tenant - there cannot be two sets of landlords - suit did not fall under section 7 (11) (e) but under section 7 (5). - - whether to a case like the present one, clause(v) of section 7 applies or clause (xi) (e) of section 7 applies, different, views have been taken. anwar hussain air1932all314 ,a bench decided that a lessee in circumstances similar to those of the present case was entitled to enforce the right to obtain possession of the land leased to him so that he might enjoy is usufruct because section 103, t. both..........order:'the learned trial judge should record evidence on the point as to the market value of the suit property and then ask the plaintiff, to pay the necessary court-leas on the market value of the suit property. in case the plaintiff does not pay the necessary court-fees, within the time fixed by the trial court, it shall pass such orders as it thinks fit. in case, the trial court gives the finding that me market value of the suit property exceeds rs. 10000/-(rupees ten thousand), it shall return the plaint to the plaintiff for presentation to the proper court. it should be understood by the parties concerned and the court below that the findings on merits remain undisturbed.' 7(v)2. the plaint is for the recovery of possession by an alleged statutory tenant from his alleged landlords.....
Judgment:
ORDER

V.B. Raju, J.

1. In a suit filed by the applicant for possession of certain parts of house property from his alleged landlords, namely, defendants Nos. 1, 2 and 3 and from two other persons, namely defendants Nos. 4 and 5, the District Court of Surat held that the suit fell under Section 1(V) of the Court fees Act and not under Section 7(xi)(e). The Judge, therefore, passed the following order:

'The learned trial Judge should record evidence on the point as to the market value of the suit property and then ask the plaintiff, to pay the necessary court-leas on the market value of the suit property. In case the plaintiff does not pay the necessary court-fees, within the time fixed by the trial Court, it shall pass such orders as it thinks fit.

In case, the trial Court gives the finding that me market value of the suit property exceeds Rs. 10000/-(Rupees ten thousand), it shall return the plaint to the plaintiff for presentation to the proper Court. It should be understood by the parties concerned and the Court below that the findings on merits remain undisturbed.'

7(v)

2. The plaint is for the recovery of possession by an alleged statutory tenant from his alleged landlords defendants Nos. 1 to 3. In the plaint it is also stated that forcible possession was taken away by the landlords in the absence of the plaintiff and given to defendants Nos. 4 and 5. According to the plaintiff, therefore, defendants Has. 4 and 5 are persons inducted into possession of the parts of the suit premises in the absence of the plaintiff. The learned trial Judge gave a finding that the plaintiff is a statutory tenant. But he did not go into the question of court fees. In appeal the learned District Judge, however, held that proper court-fees had not been paid, because the suit fell under Section 7(v) of the Court-fees Act. Several authorities were relied on before the learned trial Judge and several authorities have been also cited before me. Section 7(v) of the Court-fees Act reads as follows:

'The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows: (v) In suits for the possession of land, houses and gardens -- according to the value of the subject-matter.'

Section 7(xi)(e) of the Court-fees Act refers to suits between landlord and tenant to recover the occupancy of immovable property from which a tenant has been illegally ejected by the landlord.

Whether to a case like the present one, Clause(v) of Section 7 applies or Clause (xi) (e) of Section 7 applies, different, views have been taken. In Ghulam Dastagir v. Marudai ' Pilial, AIR 1948 Mad 109, the learned Judge of the Madras High Court was considering Clause (xi) (cc) of Section 7 and he observed as follows:

'Section 7(v) applies generally to suits for possession, The new clause, viz., Clause (xi) was meant to ease the position of a landlord endeavoring to obtain his rights as between himself and his tenant and of a tenant endeavoring to obtain his from the landlord and to give both a quick, easy and cheap remedy. If Clause (v) were the only one to apply, it would involve very heavy court-tees. Sub-clause (cc) was intended to enable a landlord to bring a cheap suit against a tenant guilty of holding over after the determination of his tenancy. That the word 'tenant' must not be taken too literally is to he found in numerous cases including Gobinda Kumar v. Mohinimohan : AIR1930Cal42 , Manickam Pillai v. 'Katna-sami Nadar, 33 Mad LJ 684 : (AIR 1919 Mad 1186) and the Privy Council case in Karnani industrial Bank Ltd. v. Satya Niranjan Shaw, 32 Cal WN 1093 -. (AIR 1923 PC 227). Although their Lordships were dealing with the Calcutta Rent Act, the analogy is not too distant.

Leaving this particular question aside for the moment and going back to the main contention in the lower Court as to the right of the new lessee to sue, authorities going back to Achayya v. Hatiumantarayudu, ILR 14 Mad 269, show that a person in the position of a lessee can sue in ejectment a person whom he finds in occupation of the land leased to him. In Mohd. Fazinzzaman v. Anwar Hussain : AIR1932All314 , a Bench decided that a lessee in circumstances similar to those of the present case was entitled to enforce the right to obtain possession of the land leased to him so that he might enjoy is usufruct because Section 103, T. P. Act, provides that a lessor is bound to put him in possessor of the property and further that the benefit of the contract is annexed and goes with the lessee's interest as such, and can be enforced by him. Reference was made to ILR 14 Mad 2G9, where the fight of a lessee to sue was assumed because he claimed under the owner of the properly.'

The learned Judge observed that in his opinion it was unjust to hold that in such a case the plaintiff can bring his action only under Clause (v) of Section 7 of the court-fees Act. The learned Judge further observed as follows:

'Where a person obtains a lease, say of a dwelling house, from a lessor and finds When he desires to take possession that some stranger is there, it would De monstrous to make him file a suit on the basis that he was doing anything else but stand in the shoes of the lesser. If the landlord can bring the suit cheaply under Clause (xi) [cc) why should not the lessee be entitled to do the same'* If the word 'tenant' can be extended, as it has been extended by many different Courts, to include a person who is not in law a tenant at all, to say that the were 'landlord' may cover a lessee who under section sub T. P. Act, has every legal right to pursue such a remedy, does not seem at all difficult. | think that the decision of the lower Court can be supported, although for different reasons. It would be in my opinion a most artificial approach to the Court-fees Act to say that a valid lessee could only exercise his undoubted rights under Section 108, T. P. Act, at great cost under Section 7(v), Court-fees Act, while the landlord, if he chose to bring the same suit in ejectment, could avail himself of Section 7(xi)(cc). I therefore hold that the latter clause applies in the circumstances of the case.'

This case was not followed in Ganesh Gopal v. Moreshwar Narayan : AIR1951Bom352 . The learned counsel for the applicant also relied on Secretary of State v. Dinshaw, AIR '1925 Sind 275 and Abdul Ranman V. Budhu : AIR1951Pat403 . In the Sind case the following observations were made :

'The Court-fees Act being a fiscal enactment must in cases of ambiguity be construed in favour of the public. Clause (xi) refers to suits between the landlord and the tenant. It does not restrict such suits to suits between the landlord and the tenant only. There is therefore no reason why Clause (xi) should be limited to suits where the landlord and the tenant alone are parties and should not apply to a suit of this nature where in order to avoid any unnecessary delay in execution proceedings the second defendant was Joined as a proper party to the suit. I his suit would have been equally efficacious if he had not been joined as a party. As 3 matter of fact he has given up possession before the date of, the decree. I am of opinion that this suit has been overvalued and in the taxation of costs the plaintiff is only entitled to costs as taxed in a suit falling under Section 7 Clause (xi) Sub-clause (e) of ihe Court-fees Act'.

3. On behalf of the learned counsel for the opponentreliance is placed on Furzand Ali v. Mohanth Lal ILR 32Cal 263, which was followed in Palaniappa Ghetti v. SithraVelu Servai, ILR 31 Mad 14 and Mt. Bhagobai v. ShlamialDwarkaprasad, AIR 1933 Nag 312. Reliance is also placedon Haladhar Pal v. Mongal Raja, AIR 1931 Cal 333. theCalcutta case reported in ILR 32 Cal 268, supports hiscontention.

In : AIR1931Cal333 , Clause (xi) (cc) of Section 7 of the Court-fees. Act was considered, and it was held as under:

'Clause (xi) (cc) applied to a suit for recovery of immovable property from a tenant. When the suit Is not one for recovery of immovable property from a tenant but is by one who alleges to be tenant for recovery of immovable property from persons alleged to be trespassers instigated by the landlord, the clause does not apply.'

4. Before a suit can fall under Section 7(xi)(e) it must be a suit between a landlord and tenant and further it must be a suit to recover the occupancy of Immovable property from which a tenant has been illegally ejected by the landlord. Both these requisites must be satisfied before a suit can fall under Section 7(xi)(e) of the Court-fees Act. The word 'landlord' has not been defined in the Court-fees Act. But with reference to suits between a landlord 'and tenant, we have to take the definitions of 'landlord and 'tenant' as they are found in the Transfer of Property Act and in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In Section 5 (3) of the latter Act, 'landlord' has thus been defined;

''Landlord' means any person who is for the time being, receiving, or entitled to receive, rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person or as a trustee, guardian, or receiver for any other person, or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant; and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his sub-tenant a tenant who has sub-let any premises.'

'Lease', 'lessor' and 'lessee1 are defined in Section 105 of the Transfer of Property Act as follows:

' ''Lease': A lease of immovable property is a transfer of a right to enjoy such properly, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service, or any other thing of value, to be rendered, periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

The transferor is called the lessor and the transferee is called tha lessee.'

Before a person cart come within the definition of 'landlord' under Section 5(3) of the Rent Act, he must be a person, who derives a title as landlord and who Is not a tenant- It is not the case of the plaintiff that defendants Nos. 4 and 5 derived their title under defendants Nos. 1 to 3. In fact, in the plaint it is stated that defendants Nos. 4 and 5 are tenants of defendants Nos. 1 to 3 and therefore they would not be landlords as defined in Section 5(3) of the Rent Act. The Court-fees-Act is a fiscal enactment and provides for suits between-landlords and tenants and for other suits, which are not. between landlords and tenants. Before a suit can be said to be a suit between a landlord and tenant, the parties should satisfy the definitions of 'landlord' End 'tenant' as contained either (n the Transfer of Property Act or in the Bombay Rent Act. it is not open to Courts, to give another meaning to the words 'landlord' an 'tenant', when these expressions are defined in the relevant Acts.

5. It is contended by the learned counsel for the applicant that if the view taken in ILR 32 Cal 26S, is. correct, then if a landlord dies his successor would net be a landlord for the purpose of the Court-fees Act. But this contention is not correct in view of the defamatory of 'landlord' contained in Section 5 (3) of the Bombay Rent Act. Such a person would be a landlord according-: to the definition of 'landlord' contained in Section 5(3) ot the Bombay Rent Act.

6. It is next contended by the learned counsel for the applicant that a person who has been inducted into, the land of the landlord cannot claim a better right of possession as a landlord. The question is one of court-fees and not of substantive rights. Before Section 7(xi)(e) of the Court-fees Act can be applied the suit must be one between a landlord and tenant, whatever be the substantive rights of the parties; a person would not become a landlord unless he satisfies the definition of-'landlord', which is contained in Section 5(3) of the-Bombay Rent Act. Section 109 of the Transfer of Property Act provides for the rights of the transfers from--the lessor or the landlord. Section 109 of the T. P, Act reads as under:

'If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary,, shall possess all the rights, and, if the lessee so elects,, be subject to ail the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not by reason only of such-, transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him :

Provided that the transferee Is not entitled to arrears, of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine-what proportion of the premium or rent reserved by the' lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.'

7. If this section is to be applied, the possession and position of the tenant must remain unaltered. In the/instant case, however,, it is stated in the plaint that possession of the premises has been forcibly taken away from-the plaintiff by the landlords, and It Is only after that-that defendants Nos. 4 and 5 have been inducted into the land. To such a case, Section 109 of We Transfer of Property Act would have no application.

8. For the above reasons, whatever be the argumentswhich can be advanced on grounds of cheapness or convenience, the Court must follow the wording of the Court-fees Act provided it is clear and unambiguous, and a suit like the present one would not be a suit between the landlord and tenant because it is a suit not only between the landlords and tenant but also between a tenant and two other persons as' well, namely, defendants Nos. 4 and 5, who cannot be said to be the landlords of the plaintiff. There cannot be two sets of landlords. There is, therefore, no merit in the contention of the learned counsel for the applicant. The view taken by the District Court of Surat that the suit does not fall under Section 7(xi)(e) but falls under Section 7(v) of the Court-fess Act is correct.

9. It is, however, contended that the last para ofthe order of the trial Court that the findings on merits are not disturbed should be altered by this Court. This observation merely means that the questions of fact and the merits of the matter have not been gone into by the appellate Court In appeal. It does not mean that the findings of fact are confirmed. If the plaint is returned to another Court as the proper Court, that Court will decide the facts afresh unaffected by the judgments of the Courts below. If the proper court-fee is paid, the suit will be tried afresh.

10. The civil revision application is, therefore, dismissed with costs.


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