GANDHI BHUPATLAL JAGJIVAN Vs. SHAH SHUKHLAL VARSHIDAS NANALAL

JUDGEMENT

(1.) In this revision application the petitioner is the original plaintiff and the opponents are the original defendants Nos. 1 and 2 in Civil Suit No. 91 of 1961 in the Court of the Civil Judge Senior Division Surendranagar. The petitioner is a tenant In respect of two shops. He entered into a partnership for business with the opponents Nos. 1 and 2 and permitted that partnership to do its business in the shops taken on rent by him. The partnership has been dissolved by a deed of dissolution dated September 23 1958 and according to the terms of this deed of dissolution the opponents agreed to pay Rs. 10800.00being the amount due to the petitioner on accounts and to hand over possession of the suit shop which is one of the two shops. This amount of Rs. 10800/_ was made payable by instalments and the first instalment of Rs. 2000/was agreed to be paid on Ashad Sud 1 of Samvat Year 2015 and the remaining amount was to be paid on Maha Vad 30 of Samvat Year 2016. The document also provided that if the payment of Rs. 2000/was not made on the due date the petitioner would be entitled to take possession of the suit shop from the opponents. Admittedly default has been committed in making the payment as agreed in the deed of dissolution and therefore the petitioner filed a suit for possession of the shop from the opponents. He valued the relief for possession at Rs. 240/being the annual rent of the suit premises and paid Court fees thereon. The opponents raised a question about under-valuation of the suit for the purpose of Court fees. The learned trial Judge held that the case fell within sec. 6(v) of the Court Fees Act 1959 and that Court fee should be paid on the market value of the suit shop and accordingly he appointed a Commissioner to ascertain the market value. The petitioner filed Civil Revision Application No. 843 of 1961 against that order of the learned trial Judge which was disposed of by this High Court (Mody J. as he then was) on March 20 1963 The learned Judge came to the conclusion that the petitioner has in effect asked for a declaration of his title on the basis of the Deed of dissolution and for the consequential relief of possession of the suit property. The learned Judge therefore held that the suit is one which is governed by the provisions of sec. 6(iv)(d) read with third proviso of the Bombay Court Fees Act 1959 The order of the trial Judge was therefore set aside and the matter was sent back to the learned trial Judge with a direction to decide the question as to whether the petitioner has properly valued the suit and paid full ad valorem Court fees leviable for such a suit on the basis of title of the subject-matter.

(2.) When the matter went back to the trial Judge he came to the conclusion that the title of the subject-matter was worth the market value of the suit shop and he fixed that market value at Rs. 7000/and directed the petitioner to pay necessary Court fees on that amount. Against this order the plaintiff has filed this revision application. It was heard by Divan J. and the following two questions have been referred to us by Divan J. for our answers:-

(3.) Sec. 6(iv) of the Bombay Court Fees Act 1959 consists of sub clauses (a) to (j). Sec. 6 begins with the words The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows. Thereafter follow the various sub-sections and sub-sec. (iv)(d) reads as follows:-