SAGAR TALKIES BARODA Vs. YOGESHKUMAR AMBALAL THAKKAR

JUDGEMENT

(1.) this revision petition is filled by the petitioners who are the partners of defendant No. 1-firm named M/s Sagar Talkies against the plaintiffs-opponents Nos. 1 to 3 and opponent No. 4 (original defen- dant No. 2) and opponent No. 5 who is also a partner of defendant No. 1 firm against the order passed by the learned 2ad Joint Civil Judge Junior Division Baroda dated 23 1973 dismissing application Ex. 26 filed by defendant No. 1 firm stating that Regular Suit No. 45 of 1973 is virtually to dispossess the defendant who is in possession of the suit pre- mises and who is actually running the cinema The valuation of the suit property is definitely more than Rs. 25 0 and the suit will fall within the jurisdiction of the Court of Civil Judge Sen or Division. The plaint- iffs have wrongly undervalued the suit in order to escape the Court fees and bring the suit within the jurisdiction of the Court of Civil Judge Senior Division. The question of jurisdiction and suit valuation should therefore be taken up first.

(2.) The learned trial Judge found that this was a suit by a licensor against a licensee as the plaint reveals and it is averred in the plaint that the plaintiff-licensor is in possession of the suit property. Question regard- ing jurisdiction can be decided only from the averments and pleading made in the plaint. He therefore found that it was not a case of undervalua- tion and dismissed the application.

(3.) Mr. L. R. Shah appearing for the petitioner (who will be hereinafter referred to as defendant No. 1-firm) has contended that it is the sub- stantial nature of the suit that is to be taken into account. It is the sub- stance of the plaint and not the mere form that has got to be taken into account for the purpose or determining the question regarding the adequacy of Court-fees and question regarding jurisdiction. Merely because the plaint is cleverly drafted and instead of asking for possession mand- atory injunction and permanent injunction are asked for the Court cannot omit to consider the substantial nature of the suit and decide about the adequacy of the Court-fees. Mr. Shah has submitted that if one refers to the substantial nature of the suit on taking into account the averments made in the plaint and the terms of the agreement of licence there is no escape from the conclusion that it is defendant No. 1 who is in possession of the suit property and the plaintiffs by asking a relief for mandatory injunction really want to get a relief for possession. When a suit is filed for recovery of possession by a licensor from a licensee assuming for the sake of argument submitted Mr. Shah that relationship between the parties was that of a licensor and licensee and not that of a landlord and tenant as claimed by defen- dant. No. 1-firm the court-fees have to be paid on the basis of the market value of the subject matter of the suit and the subject-matter of the suit in the instant case is the theatre property and the fixtures etc. attached to it.