KANNAN DEVAN HILLS PRODUCE CO LTD Vs. MATHEW

JUDGEMENT

(1.) The revision is directed against an order of the District Munsiff of Devicolam, directing the plaintiffs to pay additional court fee on their plaint. The defendant was a mason employed by the plaintiffs building contractor and according to the plaint (vide Para.5), the plaint schedule property was allotted by them for the defendants residence during the period of his employment as mason under the building contractor, on the definite understanding that he would hand over vacant possession of the property to the plaintiffs as soon as his employment in the said capacity terminated. The plaint further states that the defendant was discharged from the service of the building contractor with effect from 24th January 1953 and that when demand was made of him to vacate the premises he refused to do so. The suit is to recover possession of the property with past and future mesne profits at the rate of Rs. 20 per month.

(2.) On the basis that the suit fell within the purview of S.3(5)(a) of the Travancore Cochin Court Fees Act (II of 1125) the plaintiff estimated the market value of the property at Rs. 120 and paid court fee accordingly. The defendant contended that the market value stated by the plaintiffs was not correct and that in view of the dispute on the matter court fee had to be levied as per the latter part of the operative portion of S.3(5), that is, at ten times the annual gross profits. The learned District Munsiff accepted this position and in the absence of evidence regarding gross profits adopted the mesne profits claimed in the plaint as gross profits for purposes of court fee. The plaintiffs were accordingly directed to pay the required additional court fee. Hence this revision.

(3.) When the revision was admitted notice was directed to the Government Pleader as well and even according to him S.3(5)(a) of the Court Fees Act applied to the case and the learned Munsiffs order was correct. I have earlier referred to Para.5 of the plaint and in view of the averments therein - which alone are material for the present - the suit does not fall under the said provision, because Clause.(a) refers to a suit which is not based on a contract. Para.5 clearly avers a contract between the parties and a definite agreement by the defendant to vacate the premises when he is discharged from the service of the building contractor. To me the applicatory provision would appear to be S.3(10)((d)(i). When this provision, so far as relevant, is written out in full it would read thus:- In suits for recovery of immovable property in the case of a lease granted or to be granted to those who have no right or permanent occupancy, (for a term not fixed) the court fee payable shall be according to one years rent together with the premium or fine, if any. I have already said that Para.5 refers to a suit not based on a contract. S.3(10) deals with suits to recover immovable property based on contracts. The definition of a lease in the Transfer of Property Act (S.105) shows that it can be granted in lieu of service to be rendered by the lessee. Reading the plaint as a whole and in particular Para.5, it appears to me to be fairly clear that it was part of the terms of the employment of the defendant that he should have residential accommodation provided by his employer. The plaint however does not state the deduction, if any, made from the wages of the employee towards the rent of the premises occupied by him. Perhaps, in providing residential quarters the parties had not applied their minds to the question of the rent and if asked now, it would be difficult for the plaintiffs to state whether and if so what rent was taken into account for fixing the wages of the employee. At best they can give only an arbitrary figure and instead of resorting to that method I consider the better course would be to follow the lead of the decision in Korah Joseph v. Ramasubba Iyer, 30 TLJ 770 and hold that the applicatory provision is Art.VIII, 8, Schedule.2, that is, the plaintiffs should pay a fixed court fee of Rs. 10. As the suit in terms falls within S.3(10)(d)(i), but no rent is fixed to attract the application of the mode of taxation for court fee prescribed therein, the above would seem to be the only way of getting out of the situation created by the absence of a provision applicable to the case. No doubt strictly speaking rent taken into account in fixing the wages should be the basis. In Korah Joseph v. Ramasubba Iyer, 30 TLJ 770, the suit was against a caretaker of the property who refused to surrender possession of the same after his dismissal from service. The Court found that as the suit was based on a contract, the provision analogous to the present S.3(5)(a) in the Travancore Court Fees Act did not apply to the case and all it could do in the circumstances was to apply the residuary article as I have done here. It was expressly held there that the suit was based on a contract.