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Jnanendra Nath Bose and ors. Vs. Sushil Kumar Sapui - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 4304 of 1965
Judge
Reported inAIR1967Cal317
ActsCourt-fees Act, 1870 - Section 7-VA and 7(11); ;Court-fees (Amendment) Act, 1963
AppellantJnanendra Nath Bose and ors.
RespondentSushil Kumar Sapui
Appellant AdvocateBankim Chandra Banerji and ;G.K. Deb, Advs.
Respondent AdvocateP.N. Mitter and ;Bankim Chandra Roy (2), Advs.
Cases Referred(Vithaldas v. Ghulam Ahmad
Excerpt:
- .....at the out-set as the arguments materially turned upon such dates. as will be seen from the dates, the licence was revoked on or about the 12th february, 1955. the amendment of the court-fees act came into force on the 3rd may 1963. the present suit was filed on the 5th may, 1965. it will be convenient to bear these dates in mind to determine their impact in the arguments advanced before us. 4. the learned subordinate judge in determining this issue on the court-fees payable by the plaintiffs came to certain decisions on the interpretation of the amending act with regard to the plaint based on revocation of the licence with fee. that interpretation relates to the new amendment introduced into section 7 of the act after clause 5 of the existing statute by va with clauses (a) and.....
Judgment:

P.B. Mukharji, J.

1. This is an application under Section 115 of the Code of Civil Procedure. It raises an interesting question of Court Fee on the Court Fees (West Bengal Amendment) Act, 1963 (West Bengal Act XVIII of 1963).

2. This Rule was obtained by the petitioner on the 13th December, 1965 against the order of the learned Subordinate Judge passed in the suit on determination of the preliminary issue being issue No. 3 on Court-fees Act. The petitioners who were the plaintiffs filed the suit against the defendants on the ground of revocation of a license. The license relates to a tank fishery locally known as 'Nalbon Fishery', situated at Kantatolla Chandi Bose's Abad under police Station Bhangore, within the district of 24-Parganas including an area of about 191 acres. A licence was granted to the father of the defendants in the month of Magh 1356 B.S. for pisci-culture or other rights to grow and culture fish in the water of the said tank fishery. The licence to begin with was for one year commencing from 1st of Falgoon 1356 B. S. till the last day of the month of Magh1357 B. S. The licence fee payable was Rs. 181. The purpose of the licence was to use the water of the tank fishery for rearing and catching fish and for no other purpose. On the death of the father of the defendant, the defendant was permitted to continue this licence in his place till the end of Magh 1357 B. S. on the same terms and conditions. With the end of the month of Magh 1357 B. S. the defendant was granted a fresh licence for the year commencing from Falgoon 1357 B. S. till the end of Magh1358 B. S. with similar rights as aforesaid on condition of payment of Rs. 20,000 as licence fee. Thereafter, the defendant was granted a similar licence twice each time for one year only. For the last time, the defendant was granted a similar licence with such rights and on the condition of payment of Rs. 22,000 as licence fee for the year from Falgoon 1368 B. S. till the end of Magh 1369 B. S. The plaintiffs determined and revoked that licence on the expiry of the month of Magh 1361 B. S. by a notice dated 13th Falgoon, 1361 B. S. asking the defendant to vacate the property and to give possession thereof to the plaintiffs. On the refusal of the defendant the present suit was filed being title Suit No. 43 of 1965 in the court of the Subordinate Judge at Alipore for recovery of possession and mesne profits and also for damages.

3. Three dates may be noticed at the out-set as the arguments materially turned upon such dates. As will be seen from the dates, the licence was revoked on or about the 12th February, 1955. The amendment of the Court-fees Act came into force on the 3rd May 1963. The present suit was filed on the 5th May, 1965. It will be convenient to bear these dates in mind to determine their impact in the arguments advanced before us.

4. The learned Subordinate Judge in determining this issue on the court-fees payable by the plaintiffs came to certain decisions on the interpretation of the amending Act with regard to the plaint based on revocation of the licence with fee. That interpretation relates to the new amendment introduced into Section 7 of the Act after Clause 5 of the existing statute by VA with Clauses (a) and (b) (i) and (ii). That interpretation requires to be examined in this Rule. He came to the conclusion that because the plaint in this case was filed on the 5th May, 1965 and the licence was determined about 10 years before that date in Magh 1361 B. S., there was no licence fee payable for the year 1964 which is 'the year next before the institution of the suit'. According to the learned Subordinate Judge, this lapse of time makes all the difference and by this lapse of time covering about a period of 10 years the status of the tenant or of the licensee was converted into the status of trespasser. He, therefore, cannot be said to be any more an ex-tenant or an ex-licensee in the eye of law. According to this view, he came to the conclusion that the defendant was no better than a trespasser in this case.

5. From this the lower court came to the decision that Section 7-VA (b) did not apply to the facts of this case. It is that construction and interpretation which has been challenged by the petitioners in this Rule.

6. What the learned Subordinate Judge ultimately did was to direct an inquiry as to the valuation under Section 8-C of the Court-fees Act.

7. On a careful consideration of the interpretation put by the learned Subordinate Judge, this Court has come to the conclusion that his decision cannot be sustained. The language of the amended Section 7-VA (b) (i) in our opinion, applies in the present case. That provision of the statute reads as follows:

'a licensee upon revocation or termination of his licence,--

(i) where a license fee is payable by the licensee in respect of the immovable property to which the suit refers, according to the amount of the license fee of the immovable property payable for the year next before the date of presenting the plaint, or etc. . . .'

The essential point of controversy in this case arises on the expression 'according to the amount of the license fee of the immovable property payable for the year next before the date of presenting the plaint'. What is said is that the expression 'the year next before the date of presenting the plaint' shows that in order to avail of this valuation under this provision there must be a current licence within the year before the date of presentation of the plaint. This interpretation is attempted to be enforced by theword 'payable' in the above section. On a plainreading of the section as above, there is an apparent attraction in favour of this argument.It is further contended on behalf of the defendant that this interpretation does not mean thatthe plaintiff-licensor loses his right to sue forrecovery of possession on the determination ofthe licence, if he does not file a suit within oneyear after such revocation, but only means thisthat he loses the benefit of lower valuationwhich was intended to be given to him by thisamendment. In other words, it is contendedthat the Court-fees Act favours a vigilant licensor who sues upon revocation of the licencewithin a year of such revocation.

8. On a close scrutiny of this argument much of its glamour disappears. In the first place, the Court Fees Act is not an Act which can be said to encourage or discourage vigilance in the matter of filing suits. As was pointed out by the Privy Council in Rachappa v. Shidappa, ILR 43 Bom 507: (AIR 1918 PC 188) 'Court Fees Act was passed not to arm a litigant with a weapon of technicality against his opponent but to secure revenue for the benefit of the State'. Many decisions have laid down that the Court Fees Act is essentially a fiscal enactment whose primary object is to protect revenue and not to energise litigants. We may add that it is none of the purpose of the Court Fees Act to promote or discourage vigilance among litigants. To make, therefore, a distinction between a vigilant plaintiff who sues for the recovery of his property on the revocation of his licence within a year thereafter and the lethargic plaintiff who wakes after a long time so that in one case the plaintiff pays a lower court fee and the other a larger court fee does not appear to be consistent with the object and purpose of the Court Fees Act.

9. Secondly, a licensee who has chosen to continue wrongfully his possession even after the revocation of his licence, cannot by continuance of his wrongful possession, convert himself or his quality as a revoked licensee into that of a trespasser in the sense as to attract court lees for trespass and not as a revoked licensee, so long as the plaintiff comes within the period of limitation and so long as his right to claim possession is not barred by such limitation. This view is not only consistent with common sense but also with practical convenience. In many cases it may not be possible for a licensor to bring a suit within one year of the revocation of the licence for very many reasons. If in such a case he brings a suit within two years then to make him pay a higher court fee as for a suit against a trespasser would seem to be not only against common sense but also will cause senseless discrimination and hardship. No doubt, the period here is long and it is as long as ten years, but then it is not the length of time which will affect the interpretation so long as the length of time by the laws of limitation has not extinguished the right or claim of his plaintiff. This is a matter of principle. It is not a question of degree of delay. Take for instance, a plaintiff who sues for the recovery of his property on the revocation of the licence within one year and six months. In such a case, such a plaintiff will not be able to answer the narrow interpretation suggested for the words 'payable for the year next before the date of presenting the plaint' in the above section. For six months out of that period of one year and a half, will be outside that narrow interpretation. In that case also, although not of any inordinate delay, it could be easily be contended that no licence fee was payable within the meaning of that section. What is good for one year and six months or even one year and two months or even one year and one month, is good also for 10 years because none of these periods of time can answer the description given in the statute, in the sense argued Indeed, except for that one special limited class of cases, where the plaintiff brings his suit just within one year from the revocation of the licence, no other case can really fit in with the above interpretation or description in the statute. The amendment was intended to grant relief to licensors with or without fee in suits for recovery on the revocation of licence. No construction should be put on this amendment which will exclude almost all licensors except one who has brought his suit within one year of his revocation of the licence. Such a view also would be indirectly but really introduce a new limitation, not recognised in the Limitation Act to virtually force licensors to bring their suits within one year of the revocation of license, on pain of paying very much higher court fees, from which they were intended to be relieved by this amendment.

10. The words 'payable for the year next before the date of presenting the plaint' used in that section therefore, require an interpretation consistent with the purpose and object of the Court Fees Act and consistent with the relief intended to be given to the licensors in recovering their property on the revocation of their licenses and must be given a practical interpretation which will work in all classes of cases where the licensor sues for the recovery of possession of his property on the revocation of the licence and where a licence fee is payable. In that view the word 'payable' means payable under the licence which has been revoked. The licence fee is only the standard by reference to which Court fee is to be calculated or assessee and it is no more than the standard of reference in that context. It does not depend on the technicality or the subtlety of jurisprudence that when a licence is revoked no licence fee such tax is payable after revocation. To adopt that construction is to make non-sense of the statute. Similarly, the expression 'for the year next before the date of presenting the plaint', must also be understood in that light. A plaint is presented on a cause or action. The date or the cause of action and the date of the presentation of the plaint need not be confused. In a broad sense it is the cause of action that gives rise to the presentation of the plaint in due course of time. The Court Fees Act has essential and fundamental relevance to the cause of action and not to the actual date of presentation of a plaint upon such cause of action. If the cause of action is revocation of the license then the expression 'license fee payable for the year next before the date of presentation of the plaint' must be understood in the light of the cause of action pleaded in the plaint. That cause of action is the revocation of licence.

11. The words 'for the year next before the date of presenting the plaint' in the new amended section is not a novelty. It was already there in Section 7xi) (cc)( of the Act which makes provision for a suit between landlord and tenant for the recovery of immovable property from a tenant including the tenant holding over after determination of the tenancy and fixes the Court fee for such a suit according to the amount of the rent of the immovable property to which the suit refers 'payable for the year next before the date of presenting the plaint.' It is in that context of Section 7 that the new amendment of 1963 must be construed because it is there that it has been inserted. This juxtaposition gives colour to the context in this interpretation. In the same Section 7 therefore it is essential that no interpretation is given to the expression 'payable for the year next before the date of presenting the plaint' which will not be equally good and applicable In all cases unless there is compelling reason to give a different meaning to this same expression in different clauses. There is no such compelling reason here. That again is a controlling factor in this interpretation.

12. This amended provision which we are considering has not been the subject of any decision of any Court as yet except our own in Amritalal Chatterjee v. Haralal Chatterjee in C. R. 1557 of 1965 (Cal), but which is not exactly on this point. But then considerable light is thrown on a similar point of construction of Section 7(xi)(cc) which used the very same expression in that very section as indicated above, by a Division Bench of this Court in Govinda Kurnar v. Mohini Mohan, reported in : AIR1930Cal42 . There it was held that the word 'tenant' in Section 7(xi)(cc) meant an ex-tenant that is a person who was a tenant but had ceased to be so. In considering the meaning of the word 'tenant' the Court there observed at page 773 of that report (Cal WN): (at p. 44 of AIR) as follows :--

'To put any other meaning to the word 'tenant' as used in that clause will be to impute to the legislature the futile work of passing a law which can never be applied to any concrete case.'

On a parity of reasoning we may as well say here that to put any other meaning to the word 'licensee' which does not include an ex-licensee will be to impute to the legislature the futile work of passing a law which can never be applied to any concrete case except the one we have already indicated above. It was further observed by the Court in that case at page 774 of the Report (Cal WN): (at p. 45 of AIR) asfollows:

'It will be disastrous if the law is held to be that the landlord, whenever his tenant refuses to vacate, has to bring a suit for declaration of title and possession for in that view a person as owner will be involved in constant litigation with his tenants refusing to vacate.'

It is because of this relevant and extremely compelling practical consideration that the Court in that case again observed at page 774 of the Report (Cal WN): (at p. 45 of AIR) as follows :--

'But the clause as if stands is to be interpreted according to the simple words used therein, namely it includes all sorts of tenants, including a tenant who continues to be in occupation after the termination of his tenancy. In that sense the expression holding over may not carry its technical meaning as given to it by law.'

Again, adopting similar reasons we are of opinion that here the word licensee will include a licensee whose license has been terminated by a notice of revocation.

13. Jack, J., the other learned Judge of the Division Bench in the above case at p. 776 (of Cal WN): (at p. 47 of AIR) came to the same conclusion at page 776 (of Cal WN): (at p. 47 of AIR) through another line of reasoning and the learned Judge expressed his opinion at page 776 (of Cal WN): (at p. 47 of AIR) in the Following terms :--

'I agree with the judgment which has just been delivered by my learned brother. Another point of view from which we arrive at the same result, has been well put by the Judicial Commissioners in the case of Vithaldas v. Ghulam Ahmad, 99 Ind Cas 438: (AIR 1927 Nag 156) as follows :--'The claim in a suit must be regarded with reference to the facts existing when the cause of action accrued, not to the state of things when the suit was filed.' This is a wholesome principle and we cannot afford to disregard this principle enunciated by the Division Bench in the above case. The most compelling reason is given in Vithaldas' case quoted above (Vithaldas v. Ghulam Ahmad, 99 Ind Cas 438 : (AIR 1927 Nag 156)) where it was said. 'If it were correct to look at the facts as they stood when the suit was filed in this connection, there could be no such thing as a suit for the ejectment of a tenant and Clause (xi) (cc) of Section 7 of the Court Fees Act which was added to it in 1905, would be futile along with practically all the provisions of the law in regard to the ejectment of tenants'. That exactly will be the reason in this case on the new amendment in suing licensees whose licences have been revoked.

14. We follow with respect the principle enunciated in the cases namely, 99 Ind Cas 438: (AIR 1927 Nag 156) as well as : AIR1930Cal42 quoted above and we are of opinion that the same principles as enunciated there should cover the interpretation of the expression 'license fee of the immovable property payable for the year next before the date of presenting the plaint' in the new amendment of 1963.

15. This disposes of the point of law and interpretation raised in this Rule on the Court Fees Act and its amendment as above. Lest it be thought that why should this long wait of 10 years remain unexplained on the facts of this case, it may be said that these 10 years have been a bitterly litigious period and there were very good reasons for this suit being delayed. The defendant in this case took the offensive immediately on the revocation of the licence. In fact, he filed two title suits--(1) T. S. 42 of 1955 and (2) T. S. 82 of 1958 in respect of the property against the petitioner-plaintiffs. The object or these suits were to seek for a declaration of permanent tenancy and for injunction restraining the present plaintiff-petitioners from evicting the licensee. Indeed, the defendant in those suits obtained an interim order of injunction. The first suit' namely, T. S. 42 of 1955 was ultimately dismissed by this Court while T. S. 82 of 1958 has since been withdrawn by the defendant.

16. For these reasons we hold that Section 7VA(b)(i) of the amended Act of 1963 applies to this suit and court-fee payable is according to the licence fee paid in the last year of the licence before revocation. That is the meaning and interpretation we accord to the expression 'licence fee payable for the year next before the date of presenting the plaint' in this new amendment of 1963.

17. We, therefore, set aside the order of the learned Subordinate Judge and make the Rule absolute.

18. There will be no order as to costs.

19. Let the records be sent down as soon as possible.

D. Basu, J.

20. I agree.


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