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M. Shahul Hameed Vs. Kanda Iyer and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1967)2MLJ536
AppellantM. Shahul Hameed
RespondentKanda Iyer and anr.
Cases ReferredIn Dr. Arthur Nathenial and Anr. v. Dr. R.P. Nathanial
Excerpt:
.....borrower whose mortgage has invoked section 69 of the transfer of property act, is to file a civil suit and in such suit the court has power to grant injunction and to impose condition for the grant thereof--section 17; [a.p. shah c.j., f.m. ibrahim kalifulla & v. ramasubramanian, jj] proceedings under section 17 power of the tribunal to pass any interim order held, once the possession of the secured asset is taken, there would be no occasion for the tribunal to order redelivery of possession till final determination of the issue. in other words, it is only when the tribunal comes to the conclusion that any of the measures, referred to in section 13 (4) taken by the secured creditor are not in accordance with the provisions of the act and the rules made thereunder, then only the..........filed a suit for a declaration that he is entitled as of right to be in possession of the suit property by virtue of an assignment which he secured under deed dated 33rd september, 1963, from one chockalinga chettiar with whom admittedly the first defendant entered into a registered agreement of lease on 5th september, 1963. after entering into such a lease agreement with chockalinga chettiar, the first defendant purports to put the second defendant in possession of the property. the plaintiff, who by then has secured a right to obtain possession of the property, files this suit but valued the same for purposes of court-fee and jurisdiction under section 43(d) of the court-fees act read with section 25(d) of the said act. after the written statement was filed, he (the plaintiff).....
Judgment:
ORDER

T. Ramaprasada Rao, J.

1. The first defendant is the petitioner in this Civil Revision Petition. The plaintiff filed a suit for a declaration that he is entitled as of right to be in possession of the suit property by virtue of an assignment which he secured under deed dated 33rd September, 1963, from one Chockalinga Chettiar with whom admittedly the first defendant entered into a registered agreement of lease on 5th September, 1963. After entering into such a lease agreement with Chockalinga Chettiar, the first defendant purports to put the second defendant in possession of the property. The plaintiff, who by then has secured a right to obtain possession of the property, files this suit but valued the same for purposes of Court-fee and jurisdiction under Section 43(d) of the Court-fees Act read with Section 25(d) of the said Act. After the written statement was filed, he (the plaintiff) sought to amend the plaint by substituting Section 42(c) instead of Section 43(d) as originally stated by him in the plaint. The learned District Munsif after hearing all the contention of the parties allowed the amendment. The main question, that is now argued before me by the first defendant who has come up to this Court being dissatisfied with the order of the learned District Munsif, is one of Court-fee.

2. Learned Counsel for the petitioner (first defendant) before me would state that the plaint as such does not refer to specific performance of any contract and therefore in the absence of any such pleading in the plaint, Section 42(c) is not applicable. He also contends that this is a suit by the plaintiff virtually for possession of the property now said to be in the hands of the second defendant, who is a stranger to the' contract, under which the plaintiff claims his right and therefore the suit ought to be valued as one by a stranger for possession and the Court-fee has to be paid on the market value of the property.

3. In support of the first contention, my attention has been drawn to a decision in Suryanarayana v. Narasimhaswami : AIR1939Mad360 . That was a case in which the landlord was not a party to the suit at all and the lessee filed a suit for specific performance against strangers who were actually in possession. While considering such circumstance, the Special Bench of our Court held that the suit in substance was not for specific performance but one for possession against strangers to the contract. This principle is unassailable but it is not applicable to the facts of this case. On the fair reading of the entire allegations in the plaint the plaintiff has come forward with a suit for declaration of his rental rights which obviously means that he is suing on a contract of lease which he purports to have in his favour. In my opinion, the allegations in the pleadings are sufficient to bring the main relief asked for by the plaintiff within the meaning of Section 42(c).

4. Regarding the second contention of the learned Counsel for the petitioner that Section 25(d) of the Court-fees Act has no application and that Section 25(a) or (b) is only attracted in the instant case, also appears to be untenable. It has been repeatedly held by our Court that Sections 25(a) or 25(b) dealt with rights in immovable property or tangible rights where substantial questions as to the title of immovable property in involved. Section 25(d) on the other hand would apply where no investigation is necessary regarding the title of the property but the adjudication relates to intangible rights concerning such property.

5. In Dr. Arthur Nathenial and Anr. v. Dr. R.P. Nathanial : (1962)2MLJ420 , the scope of Section 25(d) has been well laid down by Mr. S. Ramachandra Iyer, the learned Chief Justice. The following sentence in the said judgment is apposite:

It is evident that Section 25(a) of the Court-fees Act cannot apply to the case as it relates to tangible property.

6. Even so, Veeraswami, J., in Kulitalai Bank Ltd.v. Vedavalli Ammal (1963) 76 L.W. 28 was of opinion that in suits where relief asked for by the plaintiffs essentially concern themselves to questions of title relating to properties, then only Section 25(d) would be attracted. I may add that the principle which would govern and which would attract Section 25(b) is equally applicable while considering Section 25(a) as well. In this view, the learned District Munsif has correctly appreciated the position of law and accepted the valuation as made by the plaintiff in his application for amendment to the plaint and the State appearing through the Government Pleader has not placed before me any other decision to the contrary to hold a different view. The Civil Revision Petition is therefore dismissed but, in the circumstances, there will be no order as to costs.


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