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Sm. Dhiraj Bala Karia Vs. Jethia Estate Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectContract;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Order Nos. 2567 and 2842 of 1981
Judge
Reported inAIR1983Cal166,87CWN131
ActsSpecific Relief Act, 1963 - Sections 22, 22(1), 28 and 28(3); ;West Bengal Court-fees Act, 1970 - Sections 7 and 21(2)
AppellantSm. Dhiraj Bala Karia
RespondentJethia Estate Pvt. Ltd.
Appellant AdvocateTarun Chatterjee and ;Bijan Majumadar, Advs. (in C.O. No. 2567 of 1981), ;A.C. Bhabra, ;P.K. Mallick and ;P.K. Ghosh, Advs. (in C.O. No. 2842 of 1981)
Respondent AdvocateA.C. Bhabra, ;P.K. Mallick and ;P.K. Ghosh, Advs. (in C.O. No. 2567 of 1981) and ;Tarun Chatterjee, Adv. (in C.O. No. 2842 of 1981)
DispositionRevision applications dismissed
Cases ReferredKashi Prasad v. Baiju Paswan
Excerpt:
- chittatosh mookerjee, j.1. this special bench has been constituted under rule 1 (ii), chap. ii of the appellate side rules for hearing the following question of law which has arisen in two civil orders under section 115 of the civil p. c., 1908:'whether a suit for specific performance of a contract for granting lease together with a prayer for delivery of possession of thesuit property should be valued under clause (xii) (c) or under clause (v) of section 7 of the west bengal court-fees act, 1970.'2. on 16th may, 1980, sm. dhiraj bala karia, instituted title suit no. 968 of 1980 in the city civil court at calcutta, inter alia, for a decree of permanent injunction to restrain the defendant, m/s. jethia estates pvt. ltd., from letting out to any person other than the plaintiff the ground.....
Judgment:

Chittatosh Mookerjee, J.

1. This Special Bench has been constituted under Rule 1 (ii), Chap. II of the Appellate Side Rules for hearing the following question of law which has arisen in two Civil Orders under Section 115 of the Civil P. C., 1908:

'Whether a suit for specific performance of a contract for granting lease together with a prayer for Delivery of Possession of thesuit property should be valued under Clause (xii) (c) or under Clause (v) of Section 7 of the West Bengal Court-fees Act, 1970.'

2. On 16th May, 1980, Sm. Dhiraj Bala Karia, instituted Title Suit No. 968 of 1980 in the City Civil Court at Calcutta, inter alia, for a decree of permanent injunction to restrain the defendant, M/s. Jethia Estates Pvt. Ltd., from letting out to any person other than the plaintiff the ground floor and the first floor of Premises No. 21, Rupchand Roy Street measuring about 4330 sq. ft. The plaintiff averred that there had been an agreement between the plaintiff and the defendant for letting out the said suit premises to the plaintiff for 21 years with option for renewal for another 21 years, inter alia, on the following terms :--

(a) The rent would be Rs. 500/- per month.

(b) An advance of Rs. 70,000/- would be paid by the plaintiff to the defendant to be adjusted against the rent @ Rs. 250/- per month.

(c) An amount of Rs. 30,000/- would be kept by the plaintiff with the defendant in suspense account for the future. The plaintiff alleged that in breach of the said agreement to let out the premises to her, the defendant was trying to induct another person as the tenant of the suit premises. For the purposes of court-fees, the suit was valued at Rs. 100/- for injunction and court-fees were paid therein.

3. Subsequently on plaintiff's application the Plaint of the said Title Suit No. 968 of 1980 has been amended, inter alia, by inserting the following prayer (aa):

'That the defendant do forthwith execute/ lease in respect of the suit premises (described in the schedule to the plaint) in favour of the plaintiff and to do acts for registration thereof and to put the plaintiff in full possession of the property'. The plaintiff in amended para (13) of her plaint has avered that for purposes of court-fees, the suit is valued at Rs. 100/- for Injunction and Rs. 6,000/- (being annual rent for the first year of the lease) in terms of Section 7 (xii) of the West Bengal Court-fees Act. 1970 for specific performance of the Agreement of Lease and Court-fees is paid thereon.

4. M/s. Jethia Estates Pvt. Ltd., the defendant in the said Title Suit, who denied that there was any agreement between the parties for grant of lease of the suit premises to the plaintiff, made an application before the trial Court under Sections 10 and 11 ofthe West Bengal Court-fees Act, 1970, for determination of the correct valuation of the suit after investigation. The case of the defendant Company was that the plaintiff, having prayed for a decree for delivery of possession in addition to a decree for specific performance, she was bound to pay ad valorem court-fees according to the market value of the subject-matter of the suit in terms of Clause (v) of Section 7 of the West Bengal Court-fees Act, 1970. Under Section 8 of the Suits Valuation Act, 1887 in case of a suit under Clause (v) of Section 7 of the Court-fees Act, the value as determinable for computation of court-fees and value for the purposes of jurisdiction shall be the same. The defendant also urged that the value of the subject-matter of the aforesaid suit would far exceed the limits of pecuniary jurisdiction of the City Civil Court and, therefore, the said Court is not competent to try the suit.

5. The learned Judge, 13th Bench, City Civil Court by his Order No. 35 dated 6th July, 1981 accepted the plaintiff's contention that the court-fees upon the plaint are payable according to the provisions of Clause (xii) (c) of Section 7 of the West Bengal Court-fees Act, 1970 but has fixed Rs. 43,000/- as the revised valuation of the suit. According to the learned Judge of the Court below, the plaintiff has pleaded in her plaint that the alleged agreement between the parties was for granting lease for a term of 21 years with the option of renewal for another 21 years at a monthly rent of Rs. 500/. The plaintiff further has averred in her plaint that she had advanced Rs. 70,000/- which was to be adjusted against the rent at the rate of Rs. 250/- per month and the another amount of Rs. 30,000/- would be kept in suspense account with the defendant. After adjusting Rs. 250/- per month for 21 years, a sum of Rs. 7,000/- would still remain with the defendant (Rs. 70,000/- - Rs. 63,000/-). According to the Court below, the said excess sum of Rs. 7,000/- and also the other sum of Rs. 30,000/- allegedly kept by the plaintiff in suspense account with the defendant amounted to payments of premium. Thus, the aggregate of the said sum of Rs. 37,000/- and Rs. 6,000/- (being the rent for the first year of the term of the lease) should be taken as the value of the suit for specific performance of the Agreement to grant lease pleaded by the plaintiff. The learned Judge of the Court below has not, however, called upon the plaintiff to pay any court-fees in respect of the prayer for possession contained in Clause (aa) of her plaint.

6. Sm. Dhiraj Bala Karia, the plaintiff has filed a Revisional Application (Civil Order No. 2567 of 1981), inter alia, challenging the correctness and legality of the order of the trial Court determining Rs. 30,000/-allegedly paid on suspense account as a part of the premium within the meaning of Section 7, Clause (xii) (c) of the West Bengal Court-fees Act, 1970. The defendant, M/s. Jethia Estates Pvt. Ltd., has also filed a Revisional Application (Civil Order No. 2842 of 1981), inter alia, contending that both for the purposes of court-fees and of jurisdiction, the plaintiff's prayer for recovery of possession ought to be separately valued and that if the aggregate value of the said relief be taken into consideration, the City Civil Court would have no pecuniary jurisdiction to try the suit. The said two Revisional Applications came up for hearing before Anil Kumar Sen and B. C. Chakraborti, JJ. and the learned Judges have been pleased to make the present reference to the Special Bench.

7. According to Clause (xii) (c) of Section 7 of the West Bengal Court-fees Act, 1970, in a suit for specific performance of a Contract of Lease the amount of court-fees is to be computed according to the aggregate amount of fine or premium, if any, and of the rent agreed to be paid during the first year of the contract. The plaintiff in the instant suit has prayed that the defendant be directed to forthwith execute a lease in respect of the suit property, to do acts for registration and to put the plaintiff in possession of the property. The question is whether the court-fees payable in such a suit for Specific performance of a contract of lease with prayer for putting the plaintiff in possession is to be computed according to Clause (xii) (c) or Clause (v) of Section 7 of the West Bengal Court-fees Act, 1970. In other words, whether separate fees would be payable in respect of the said prayer for putting the plaintiff in possession of the suit property made in a suit for Specific Performance of an Agreement to grant lease of an immovable property and whether the court-fees in such a suit ought to be paid under Clause (v) of Section 7 read with Section 21(2) of the West Bengal Court-fees Act, 1970.

8. Mr. Bhabra, learned advocate for M/s. Jethi Estate Pvt. Ltd., the defendant-petitioner in Civil Order No. 2842 of 1981, has contended that the Court trying a suit for Specific Performance can grant also reliefs for possession, partition etc., only in the manner laid down in Section 22(1)(a) ofthe Specific Relief Act, 1963. The plaintiff in a suit for Specific Performance under Sub-section (1) of Section 22 of the Specific Relief Act, 1963 has an option to ask for the reliefs mentioned in Section 22(1)(a) in addition to Specific Performance of the contract to sell or to grant lease of an immovable property. But unless the said reliefs by way of delivery of possession, partition etc. have been specifically claimed, the Court cannot grant the said reliefs while decreeing a suit for Specific Performance (vide Section 22(2) of the Specific Relief Act, 1963). Mr. Bhabra has submitted that the said relief by way of delivery of possession is no longer covered by prayer for specific performance of a contract to sell or to grant lease of an immovable property. But the said relief is an additional one and when the plaintiff prays for delivery of possession in a suit for specific performance, he is bound to pay separate court-fees under Section 7 (v) of the West Bengal Court-fees Act, 1970 upon the said additional relief. Therefore, court-fees upon the said relief ought to be com-puted according to the market value of the subject-matter of the dispute. According to Mr. Bhabra, the court-fee payable upon the said prayer for putting the plaintiff in possession of the suit property would be much higher than the court-fee payable upon the other prayer for specific performance contained in the plaint of the suit brought by Sm. Dhiraj Bala Karia. Therefore, Sub-section (2) of Section 21 of the West Bengal Court-fees Act, 1970 would be applicable and the court-fees ought to be paid according to the value of the said relief in respect of which the largest fee is payable. Mr. Bhabra lastly has submitted that the value of the subject matter of dispute would exceed the pecuniary jurisdiction of the City Civil Court at Calcutta.

9. Mr. Chatterjee, learned advocate for the plaintiff (who is the petitioner in Civil Order No. 2567 of 1981 and the opposite party in Civil Order No. 2842 of 1981), on the other hand, has submitted that the instant suit for Specific Performance of the Agreement for lease with prayer for possession would still be governed by Clause (xii) (c) of Section 7 of the West Bengal Court-fees Act, 1970 and such a suit cannot be classified as one for possession and separate court-fees cannot be demanded in respect of the prayer for putting the plaintiff in possession of the suit property. According to Mr. Chatterjee, the said relief for possession is not an independent one, and, therefore, Sub-section (2) of Section 21 of the West BengalCourt-fees Act, 1970 does not apply in the instant case.

10. The Specific Relief Act, 1877 did not contain any express provision pari materia with Section 22 of the Specific Relief Act, 1963. In order to answer this Reference we have to consider the changes, if any, in the substantive and the procedural laws relating to grant of relief of delivery of possession by reason of enactment of the Specific Relief Act, 1963 and the West Bengal Court-fees Act, 1970.

11. While it is true that the intention of the legislature is to be gathered primarily from the words used, in interpreting a statute, the Court may consider : (i) what was the law before making of the Act, (ii) what was the mischief or defect for which the common law did not provide, (in) what remedy the Parliament has resolved and appointed to cure the diseases, and (iv) the true reason of the remedy (vide Bengal Immunity Co. Ltd. v. State of Bihar : [1955]2SCR603 ).

12. In support of their respective submissions, the learned advocate for both parties placed before us the report of the Sixth Law Commission relating to their recommendations for enacting Section 22 of the Specific Relief Act, 1963. The Sixth Law Commission had observed that before the enactment of the Specific Relief Act, 1963 on the question of granting relief by way of delivery of possession in favour of a successful plaintiff in a suit for specific performance, there were broadly four lines of reported cases.

13. Mr. Bhabra himself did not seriously dispute that prior to the repeal of the Specific Relief Act, 1877, although there was some divergence of judicial views, there was preponderance of judicial authority that obligation to deliver possession was an integral part of a contract to sell or lease an immovable property. Such obligation of the vendor to put the vendee in possession flowed from the agreement to sell or to grant lease. Even in the absence of any express provision in the agreement, the vendor had such obligation under Section 55(i)(f) and under Section 108(b) of the Transfer of Property Act, 1882.

14. The Sixth Law Commission, inter alia, had observed 'It would be simpler to make a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the Court to provide in the section itself that upon payment by the plaintiff of the consideration money within the given time, the defendantshould execute the deed and put the plaintiff in possession'. The Law Commission had concluded 'In the circumstances, we consider it advisable to provide that the plaintiff in a suit for specific performance may also claim the ancillary reliefs of partition or possession either initially or by amendment at a later stage without prejudice to the right of compensation under Section 19.'

15. It has become easier for us to answer this Reference in view of the pronouncements made by the Supreme Court in their recent decision in the case of Babu Lal v. Hazari Lal Kishori Lal : [1982]3SCR94 . R. B. Misra, J. who had delivered the judgment of the Court in Babu Lal's case (supra), had referred to the state of law as it existed prior to the enactment of Section 22 of the Specific Relief Act, 1963, and had mentioned the extreme view taken in Hakim Enayat Ullah v. Khalil Ullah Khan, AIR 1938 All 432, that the decree-holder does not enquire title or right to recover possession unless a sale deed is executed in execution of the decree for specific performance. Thereafter the learned Judge in Babu Lal's case (supra), had with approval quoted a long passage from the Division Bench decision of this Court in Kartick Chandra Pal v. Dibakar Bhattacharjee, : AIR1952Cal362 , which, had reviewed a number of reported cases including Madan Mohan Singh v. Gajaprosad Singh, (1911) 14 Cal LJ 159. Ramaprasad Mookerjee and J. P. Mitter, JJ. in Kartick Chandra Pal's case (supra), in the passage quoted had, inter alia, held 'When a contract is to be specifically enforced, it means simply this that when the parties do not agree to perform the contract mutually the intervention of the Court will do ail such things as the parties would have been bound to do had this been done without the intervention of the Court. A sale of a property after payment of the consideration and upon due execution of the deed of sale presupposes and requires the vendor to put the purchaser in possession of the property.....The Court whenallowing the prayer for specific performance vests the executing Court with all the powers which are required to give full effect to the decree for specific performance'. R. B. Misra, J. in the judgment in Babu Lal's case (supra) had referred to several other reported decisions which had also taken similar views with regard to the power of the Court to deliver possession to the plaintiff whose suit for specific performance has been decreed (vide Balmukand v. Veer Chand : AIR1954All643 ), Janardan Kishore v. Girdhari Lal, : AIR1957Pat701 Subodh Kumar v. Hiramoni Dasi : AIR1955Cal267 . The Supreme Court in Babu Lal's case (supra), had expressed complete agreement with the view taken by the learned single Judge of Delhi Court in Ex-Servicemen Enterprises (P.) Ltd. v. Sumey Singh AIR 1976 Delhi 56, with regard to the Court's power to put the plaintiff in a suit for specific performance in possession of the suit property.

16. The Supreme Court in their said decision in Babu Lal's case : [1982]3SCR94 (supra), after pointing out the previous state of law on the above subject, have laid down that Section 22 of the Specific Relief Act, 1963 'enacts a rule of pleading. The legislatrue thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings, the plaintiff may claim a decree for possession in a suit for specific performance even though stricty speaking, the right to posession accrues only when the suit for specific performance is decreed.....'.The learned Judge in Babu Lal's case (supra), proceeded to observe that Sub-section (2) of Section 22 has, however, specifically provided that reliefs by way of possession or for partition etc. cannot be granted by the Court unless they have been expressly claimed by the plaintiff. Where the plaintiff has not initially claimed these reliefs in his plaint, the Court under the proviso to Sub-section (2) of Section 22 of the Act can permit the plaintiff at any stage of the proceedings to include any one of the said reliefs by means of an amendment of the plaint on such terms as it might deem proper. In Babu Lal's case (supra), the plaintiff in his plaint did not pray for possession and the Additional Civil Judge had only passed a decree for specific performance of contract against the respondents 6 to 9, who had agreed to sell the suit plots to the plaintiffs. The High Court at Allahabad had modified the said decree to the extent that the sale deed was to be executed not only by the respondents 6 to 9 but also by their subsequent transferees including the petitioner of the special leave petition later on filed in the Supreme Court. The said petitioner who was a subsequent transferee had filed objection to the execution of the said decree on the ground that Section 22(2) of the Specific Relief Act, 1963 and also the Urban Land Ceiling Act stood as bar. The executing Court had allowed the objection to the judgment-debtor in part by only directing execution of the sale deed but had refused the prayer of the decree-holders for recovery of possession. The matter ultimately came before the AllahabadHigh Court which had dismissed the appeal and also the revision filed by the judgment-debtor but had allowed the appeal of the decree-holders by directing that the decree-holders shall be also entitled to recover possession. The special leave petition of the transferee judgment-debtor was dismissed by the aforesaid reported decision of the Supreme Court. The Supreme Court had rejected the contention of the judgment-debtor petitioner that the plaintiff decree-holder not having claimed any relief for possession in the suit, they could not obtain the said relief at the execution stage because Section 22(2) of the Specific Relief Act, 1963 was a bar to granting the said relief of possession at the execution stage. The further argument on behalf of the petitioner was that in any case before granting such possessory relief the Court ought to have insisted upon filing of an application for an amendment of the plaint and that opportunity should have been afforded to the petitioner to file an objection to the same.

17. The ratio of the decision in Babu Lal's case : [1982]3SCR94 (supra), is that Section 22 of the Specific Relief Act, 1963 has not brought about any material charge in the substantive law relating to grant of possessory relief in a suit for specific performance of an agreement to transfer immovable property. The section only enacts a rule of pleading with the object of avoiding 'multiplicity of proceedings' and also 'to enable the plaintiff to obtain appropriate relief without being hampered by procedural complications'. Thus, the procedure has been simplified to enable the plaintiff in a suit for specific performance to either initially or at any subsequent stage of the proceedings to pray for possession or for other reliefs specified in Clauses (a) and (b) of subsection (1) of Section 22 of the Specific Relief Act, 1963. In this connection, the learned Judges of the Supreme Court in Babu Lal's case (supra), had also referred to different sub-sections of Section 28 of the Specific Relief Act, 1963 which recognise that where a decree for specific performance of a contract for sale or lease of immovable property is made and the purchaser does not pay the purchase money or other sum ordered to be paid within the period allowed, the Court retains jurisdiction, inter alia, to have the contract rescinded under Sub-section (i) read with Sub-section (2) of Section 28 of the Specific Relief Act, 1963. Again in case the purchase money or other sums ordered to be paid is put in lime on application made in the same suit, the Court may also grantunder Section 28(3)(b) of the Specific Relief Act, 1963, in appropriate cases further reliefs by way of delivery of possession etc. on execution of such conveyance or lease.

18. We, accordingly hold that Section 22(1) of the Specific Relief Act, 1963 is procedural in nature and the use of the expression 'further relief in Sub-section (3) of Section 28 of the said Act is a clear pointer that reliefs by way of delivery of possession or partition and separate possession of property mentioned in Section 22(1)(a) and in Clause (b) of Sub-section (3) of Section 28 of the Specific Relief Act, 1963 are ancillary or consequential to the passing of a decree for specific performance of a contract to transfer immovable property. In other words, Sub-section s (1) and (2) of Section 22 of the Specific Relief Act, 1963 prescribe the procedure or the manner in which the Court may grant such further relief by way of delivery of possession or partition and separate possession of the property on execution of such convey-ance. Till the execution and registration of the conveyance, the vendee does not acquire title, but he is granted reliefs under Section 22(1)(a) of the Specific Relief Act, 1963 by enforcing the vendor's agreement to sell or to grant lease to him. In other words, at this stage, when he has not yet acquired title, the vendee's claim for possession etc. is derived from and founded upon the agreement which is specifically enforced. Thus, possessory reliefs mentioned in Clause (a) of Sub-section (I) of Section 22 of the Specific Relief Act are dependent upon and flows from passing of a decree for specific performance of an agreement to transfer an immovable property. Even before the enactment of the said Section 22(1), it was almost settled by judicial decisions that the Court could grant such possessory reliefs in favour of a successful plaintiff in a suit for specific performance. The legislature by enacting Section 22 of the Specific Relief Act, 1963 has given statutory recognition to the said, power of the Court to grant delivery of pos-session and has also prescribed the proce-dure for obtaining such relief.

19. Therefore, in our view, relief for possession in favour of the successful plaintiff in a suit for specific performance cannot be considered as a separate and distinct one. The same is only an ancillary or consequential one. Accordingly, the said prayer for delivery of possession of the property agreed to be transferred cannot be treated as an additional relief chargeable with court-fees under Clause (v) of Section 7 of the WestBengal Court-fees Act, 1970. We have already held that when an agreement for transfer of an immovable property is enforced by the Court, upon the plaintiff fulfilling his part of the obligation, the defendant vendor is bound not only to execute necessary documents in favour of the plaintiff-vendee and to register the same but also to put the said vendee in possession in discharge of the vendor's obligations under the said agreement. The said obligation of the vendee (vendor ?) has been recognised both in Section 55(1)(f) and Section 108(b) of the Transfer of Property Act.

20. In our view, neither Sub-section (1) nor Sub-section (2) of Section 22 (Section 21 -- sic) of the West Bengal Court-fees Act, 1970 has any manner of application to the instant suit for specific performance together with prayers for possession and permanent injunction. The learned advocate for the defendant, Mr. Bhabra, did not urge that in the instant suit two or more separate and distinct causes of action have been joined or that the reliefs for specific performance and for possession are separate and distinct reliefs. Therefore, the sub-section (1) of Section 21 of the said Court-fees Act, 1970 is not attracted. Mr. Bhabra's submission is that the plaintiff in the instant suit has sought for more relief than one based on the same cause of action within the meaning of Section 21(2) of the West Bengal Court-fees Act, 1970. We have already reached the conclusion that the relief by way of delivery of possession is a consequence of granting specific performance of an agreement to transfer immovable property. But, under Section 22(1) of the Specific Relief Act, 1963 unless the plaintiff claims such relief the Court while decreeing a suit for specific performance cannot order him to be put in possession of the suit property. The said relief by way of specific performance is really the foundation for granting the other relief of delivery of possession. When the Court decrees a suit for specific performance for transfer of immovable property, the Court enforces the said agreement by ordering the defendant to execute necessary document and also to deliver possession of the property if the plaintiff prays for the same.

21. The Sub-sections (1) and (2) of Section 21 of the West Bengal Court-fees Act are pari materia with Sub-sections (1) and (2) of Section 17 of the Court-fees Act, 1870 as amended for Bengal. There is no direct decision of this Court regarding the applicability of Section 17(2) of the Court-fees Act, 1870 or-of Section 21(2) of the West Bengal Court-feesAct, 1970 to suits for specific performance together with prayer for delivery of possession. But we may first refer to some of the reported decisions with regard to the scope of Sub-sections (1) and (2) of Section 17 of the Court-fees Act, 1870. Sir George Ran-kin, C. J., (as he then was) in Re: Kalipada Mukherji, reported in 34 Cal WN 870 : ILR 58 Cal 281 : (AIR 1930 Cal 686), while inter alia, considering the court-fees payable upon the plaintiff of a suit for declaration that an execution sale was nullity and for consequential relief by way of injunction, held that the suit fell within the scope of the Section 7(iv)(c) of the Court-fees Act and the plaintiff was entitled to put his own valuation in the plaint of such a suit but he must give one and single and entire sum as the total value of the reliefs sought by him. Rankin, C. J., at page 873 of the reports, left hand column, observed that the case before him was clearly outside the provisions of Section 17 of the Court-fees Act, 1870; cumulative fees were dealt with by Section 17 of the Court-fees Act, 1870, the litigant was not intended to pay in respect of the same thing over and over again because of the need for consequential relief. G. N. Das, J. in Balaram Mondal v. Sahebjan Hazi : AIR1950Cal85 , had relied upon the decision of Rankin, C. J., in Re: Kalipada Mukherji (supra), and held that sub-section (2) of Section 17 of the Court-fees Act, 1870 was not applicable to a suit for declaration and for permanent injunction. Das, J., at page 142 of the reports dissented from the view taken in Mohitosh Mukherjee v. Satyanarayan Chatterjee, (1949) 53 Cal WN 340, which had held that the decision In Re: Kalipada Mukherji (supra), had become obsolete in view of the amendment of Section 17 of the Court-fees Act by Bengal Act VII of 1935. Das, J. with reference to Section 17(2) observed 'In my opinion, the second part of the clause clearly shows that the relief contemplated by the clause must be one in respect of which court-fees are independently payable under the Act. It can-hot mean consequential relief which is not per se chargeable with court-fees. The view taken by Sen, J., does not seem to be correct. In my opinion, Section 17(2) does not apply to cases arising under Section 7 (iv) (c) of the Court-fees Act where single valuation has to be put and ad valorem court-fees are to be paid on that valuation'.

22. Chakravartti, C. J., and Sinha, J., in Tarapada Ghosh v. Sailendranath alias Satya Ghosh : AIR1953Cal583 , held that a suit brought for a large varietyof reliefs, some of which were construction of Will, declaration of title, partition, account and appointment of Receiver, came in part under Section 7 (iv) (c) and in part under See. 7 (iv) (f) of the Court-fees Act. The Division Bench had applied the decision in Re: Kalipada Mukherji (AIR 1930 Cal 686) (supra), inter alia, holding that under Section 7 (iv) (c) unitary and not distributive method of computing court-fees is clearly indicated.

23. In the case of Madan Mohan Singh v. Gaja Prosad Singh, (1911) 14 Cal LJ 159, the Court had only indirectly considered the question whether Section 7 (v) of the Court-fees Act, 1870 was attracted. The plaintiff of the said case had commenced an action for specific performance of an alleged contract of sale and for compelling the first, second and third defendants to execute necessary conveyance and to deliver him possession of the half share of the properly. He had also joined as defendant one Mr. Stonewigg, in whose favour the second and the third defendants had executed a lease. The plaintiff himself had paid court-fees according to the value of the subject matter of dispute whose recovery of possession he had asked for. The defendants had denied the contract and had urged that the suit was a device by the sold out proprietor of the estate to recover possession of the half share of the property. The learned Subordinate Judge had dismissed the suit. The defendant-respondents in Madan Mohan Singh's case (supra), had raised a preliminary objection to the competence of the appeal filed in this Court by the plaintiff. It was urged that the suit was for specific performance of a contract of sale, and, therefore, under Section 7, Clause (x) of the Court-fees Act, 1870, the amount of court-fees payable on the plaint depended upon the amount of the consideration and that under Section 8 of the Suits Valuation Act, the value as determinate for computation of court-fees must also be deemed the value of the suit for the purposes of jurisdiction. Consequently, the value of the suit must be taken to be less than Rs. 5,000/- and the appeal lay to the District Judge and not to the High Court. The Court overruled the preliminary objection and held the appeal to be perfectly competent. The Division Bench in Madan Mohan Singh's case (supra), recognised that the plaintiff could sue not only for a executed and completed conveyance on the basis of the alleged executory contract but also for recovering possession, 'the right to which springs out of the contract'. Then the Court proceeded to observe thatthe suit had been properly constituted and the value for the purpose of jurisdiction would be the value of the subject matter of the litigation, namely, the value of the half share of the estate purchased by the predecessor of the second and third defendants. The Division Bench in Madan Mohan Singh's case (supra), bad no occasion to consider the applicability or otherwise of Section 17 of the Court-fees Act, 1870, and upon consideration of the frame of the suit and the reliefs prayed for by the plaintiff, they came to the conclusion that the suit before them was in substance one for possession and ought to be valued under Section 7 (v) of the Court-fees Act, 1870 according to the value of the subject matter. We are unable io apply the ratio of the said decision to a suit for specific performance with prayer for recovery of possession governed by the West Bengal Court-fees Act, 1970 read with Section (iv) (c) of the Specific Relief Act, 1963. We have already considered the effect of the inclusion of the prayer for delivery of possession in addition to the prayer for specific performance and have come to the conclusion that the granting of the first prayer is the foundation for obtaining the second prayer and the two are not distinct or separate reliefs, i. e., both are parts of the same relief. We are fortified in our views by the decision in Babu Lal's case : [1982]3SCR94 (supra). Further, in Kartick Chandra Pal's case : AIR1952Cal362 (supra). Rama-prasad Mookerjee, and J. P. Milter, JJ. had referred to the decision of Madan Mohan Singh's case ((1911) 14 Cal LJ 159) (supra), in support of their view that right to recover possession springs out of the contract which is being specifically enforced and held that while executing a decree for specific performance the executing Court can put the decree-holder in possession.

24. The learned advocate for the plaintiff has drawn our attention to a large number of reported decisions of different High Courts in India which held that separate court-fees were not payable on the prayer for possession made in a suit for specific performance of a contract to transfer an immovable property. We might briefly mention some of the cases cited before us. A Division Bench of the Madras High Court in Sundara Ramanujam Naidu v. Sivalingam Pillai, AIR 1924 Mad 360 : ILR 47 Mad 150, held that Clause (x) (a) and not Clause (v) of the Court-fees Act, 1870 apply to a suit for specific performance and for delivery of possession because the relief by way of giving possession arises from the relief granting theexecution and delivery of the sale deed. The learned Judges in Sundara Ramanujam Naidu's case (supra), further held that the suit for specific performance and for delivery of possession is not a combination of two suits or two or more distinct subjects to attract the application of Section 17 of the Court-fees Act, 1870. In this connection, we may point out that the language used in Section 17 of the Court-fees Act, 1870 as applicable to Madras was somewhat different from that used in Section 17 of the said Act applicable to Bengal.

25. A Division Bench of the Bombay High Court in Muljibhai Pitambardas v. Bai Chanchal, AIR 1945 Bom 81, also look a similar view by holding that a suit for specific performance and for delivery of possession would be governed by Section 7(x)(a) and not by Section 7(v) of the Court-fees Act, 1870 because the Court would deliver possession only after granting specific performance of the contract of sale. The Nagpur High Court in Ramchandra Mahadeorao Mahan-kal v. Vithal Balaji, AIR 1950 Nag 226 and the Allahabad High Court in Muhi-ud-din Agmad Khan v. Majlis Rai, (1884) 6 All 231 and Nihal Singh v. Sewaram, AIR 1916 All 228 : ILR 38 All 292, expressed identical views. A Division Bench of the Patna High Court in Kashi Prasad v. Baiju Paswan, : AIR1953Pat24 had referred to other reported decisions and held that in a suit for specific performance and for delivery of possession court-fees would he payable under Section 7(x)(a) of the Court-fees Act. 1870. The cause of action for delivery of possession springs out of the contract itself and the relief for possession was comprised in the relief for specific performance. A Division Bench of the Nagpur High Court in Ramchandra Mahadeorao Mahankal's case (supra), also held that a suit to compel the defendant to execute a sale deed in pursuance of an agreement to sell and to deliver possession does not become a suit for possession and the court-fees would be payable under Section 7, Clause (x) (a) of the Court-fees Act, 1870.

26. It is (not ?) necessary to further lengthen our judgment by referring to all the reported decisions on the point. The marginal note to Section 17 of the Court-fees Act, 1870 indicated that the said provision dealt with 'multifarious suits'. Further, in some of the provinces/States there were local amendments of the said Section 17 of the Court-fees Act, 1870. We have already mentioned that the Bengal Act VII of 1935 had substituted Section 17 of the Court-fees Act, 1870 inits application to Bengal (thereafter West Bengal). It further appears that Sub-section (3) of Section 17 of the Court-fees Act, 1870 as applicable to Madhya Pradesh broadly corresponded to Sub-section (2) of Section 17 of the said Act as applicable to West Bengal. The subsection (3) of Section 17 of the said Acl as adopted in Uttar Pradesh attracted when more relict's than one based on the same cause of action was asked in the alternative. We are also not aware whether in Bihar State there was any amendment of Section 17 of the Court-fees Act, 1870. We have already mentioned that the language used in Section 18 of the Bombay Court-fees Act, 1959 appeared to he somewhat different. The reported decisions of the other High Courts, some of which have been mentioned above, are still relevant so far as they lay down that the relief for delivery of possession in a suit for specific performance is not a distinct and separate one but a necessary consequence of granting a decree for specific performance of a contract to transfer immovable properly. Therefore, these reported decisions held that the said prayer for delivery of possession was exempted from payment of separate court-fees.

27. We hold that a suit for specific performance mentioned in Section 7 (xii) (a) of theWest Bengal Court-fees Act, 1970 is comprehensive enough to apply both to a suitwhere the only prayer in the plaint is forcompelling the defendant to execute andregister the document in terms of the agreement but also to a suit with prayer for ex-edition and registration of the sale deed andfor delivering possession in accordance withthe agreement. We have already observedthat these two prayers for directing the defendant to execute and register the deed andto deliver possession of the property are notseparate reliefs but the latter is consequentialand ancillary to the granting of the formerrelief by way of execution and registrationof the deed of transfer. Therefore, we holdthat Sub-section (2) of Section 21 of the WestBengal Court-fees Act, 1970, has no mannerof application to the present case becausethe aforesaid prayer for putting the plaintiffin possession does not constitute a distinctprayer for granting a separate relief.

28. We, accordingly, answer the reference in the following manner :

A suit for specific performance of a con-tract for granting lease together with a prayer for putting the plainiff in possession of the suit property should be valued under Clause (xii) (c) of Section 7 of the West Bengal Court-fees Act, 1970. Such a suit for specific performance of a contract of lease andfor delivery of possession of the suit property is not a suit for possession within the meaning of Clause (v) of Section 7 of the West Bengal Court-fees Act, 1970.

29. For the foregoing reasons, we hold that the learned Judge of the Court below correctly computed the fees payable upon the plaint of the instant suit according to Clause (xii) (e) of Section 7 of the West Bengal Court-fees Act, 1970. The learned Judge of the Court below did not commit any juris-dictional error in computing the aggregate amount of the premium and the rent allegedly agreed to be paid during the first year of the term. Sitting in revision, we are not prepared to entertain the plaintiff's submis-sion that the Court below was not right in treating the aforesaid balance sum of Rupees 7,000/- as a part of the premium allegedly payable by her. We, accordingly, dismiss both the Revisional Applications (Civil Order Nos. 2567 and 2842 of 1981).

R.M. Datta, J.

30. I agree.

P.K. Banerjee, J.

31. I agree.


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