JASWANTLAL CHUNILAL BRAHMBHAI Vs. NARSINHBHAI NATHABHAI PATEL

JUDGEMENT

(1.) The defendant in this Revision Application challenges an order made by the Second Joint Civil Judge Senior Division Ahmedabad and contends that the order is contrary to the provisions of sec. 8A of the Court-fees Act 1870 The Revision Application arises out of a suit filed by the plaintiff to recover possession of certain premises from the defendant. The plaintiff filed the suit on the ground that the defendant was a gratuitous licensee in respect of the premises and that the licence having been determined the defendant was bound and liable to hand over possession of the premises to the plaintiff. The plaintiff valued the subject matter of the suit for the purpose of Courtfees and jurisdiction at Rs. 21 200 The defendant in his written statement raised in the main three contentions. The first contention was that the defendant was not a licensee but was a tenant of the plaintiff at the rent of Rs. 65.00 per month. The second contention was that the suit being a suit between a landlord and a tenant was cognizable by the Court of Small Causes at Ahmedabad and that the learned trial Judge had therefore no jurisdiction to entertain and try the suit. The third contention which is material for the purpose of the present Revision Application was that the plaintiff had grossly overvalued the subject matter of the suit in order to bring the suit within the jurisdiction of the Court of the Civil Judge Senior Division and to oust the jurisdiction of the Court of the Civil Judge Junior Division. On these pleadings various issues were raised by the learned trial judge of which issue No. 4 was as follows :

(2.) It appears that after the framing of the issues the defendant applied to the learned trial Judge to try issue No. 3 as a preliminary issue and on the application issue No. 3 was tried by the learned trial Judge as a preliminary issue. The decision on issue No. 3 being adverse to the defendant it became necessary to proceed with the trial of the other issues. At that stage the defendant made an application to the learned trial Judge that since issue No. 4 raised the question whether the subject matter of the suit was properly valued for the purpose of Court fees and jurisdiction an inquiry should be held by the learned trial Judge in accordance with the provisions of secs. 8A to 8D of the Court-fees Act 1870 in order to ascertain the correct valuation of the subject matter of the suit. The application was resisted by the plaintiff and the learned trial Judge for reasons given by him in his judgment dated 5th July 1961 rejected the application. One of the grounds on which the learned trial Judge rejected the application was that the suit was over four years old and that if the defendant wanted the Court to hold an inquiry under secs. 8A to 8D the defendant could have made the necessary application at the same time when he applied for trying issue No. 3 as a preliminary issue. There was also another ground which weighed with the learned trial Judge and it was that the question as regards the correct valuation of the premises would have to be gone into in any event in so far as the issue as to the amount of damages claimed by the plaintiff from the defendant for trespass on the premises was concerned and that there would therefore be overlapping of evidence if an inquiry for ascertaining the correct valuation of the subject matter of the suit under secs. 8A to 8D was held as a preliminary inquiry and the issue as regards the amount of damages payable by the defendant to the plaintiff was tried later in the suit. The learned trial Judge therefore rejected the application of the defendant. The defendant feeling aggrieved by the order made by the learned trial Judge filed the present Revision Application in this Court.

(3.) Mr. S. M. Shah learned advocate appearing on behalf of the defendant contended that on a true construction of the provisions of secs. 8A to 8D the learned trial Judge was bound to hold an inquiry for the purpose of determining the correct valuation of the subject matter of the suit and that the learned trial Judge acted illegally or in any event with material irregularity in refusing to hold such inquiry. According to Mr. S. M. Shah it was not open to the learned trial Judge to say that he would try the issue as regards the correct valuation of the subject matter of the suit along with the other issues in the suit. The contention of Mr. S. M. Shah was that as soon as the defendant joined issue with the plaintiff and contended that the subject matter of the suit was wrongly valued the learned trial Judge was bound to hold an inquiry under sections 8A to 8D for the purpose of determining the correct valuation of the subject matter of the suit and that the learned trial Judge could not proceed further with the suit until he held such inquiry and determined the correct valuation of the subject matter of the suit. Mr. S. M. Shah leaned very heavily on a decision of Mudholkar J. as he then was in Aga Abbas v. Haji Mohomed (LXII Bombay Law Reporter 465 Mr. S. M. Shah contended that this decision lays down that whenever a defendant takes up a contention that the subject matter of the suit has been wrongly valued the Court is bound to hold an inquiry for the purpose of determining the correct valuation of the subject matter of the suit and that the Court cannot base its conclusion as regards the correct valuation of the subject matter of the suit on any material other than that placed on record in such inquiry held by him under the provisions of sections 8A to 8D. The true effect of this decision argued Mr. S. M. Shah is that the Court cannot decide the issue as regards the correct valuation of the subject matter of the suit as a part of the trial but must hold an inquiry before the trial of the suit and determine the correct valuation of the subject matter of the suit on the basis only of such material as may be placed on record in the course of such inquiry. I am afraid I cannot accept this contention of Mr. S. M. Shah and the reasons are as follows: