PARVATHY Vs. N ARUMUGHAM

JUDGEMENT

(1.) THIS revision is directed against the order passed by the learned 18th Asst. Judge, City Civil Court, Madras, dismissing the petition I.A.No. 2493/87 filed by the revision-petitioner under Sec. 12(2) of the Tamil Nadu Court-fees and Suits Valuation Act, 1955 (hereinafter referred to as the Act). The revision-petitioner is the second defendant in the suit filed by the respondent-plaintiff. The revision petitioner filed the petition I.A.No. 2493/87 before the Court below alleging that the respondent-plaintiff filed the suit for recovery of possession on ground that he is the tenant in respect of the suit property, that the first defendant asked him to vacate under the guise of carrying out certain repairs, that accordingly possession was delivered and that though he agreed to give possession, he did not do so after repairs. The second defendant (revision-petitioner) has been added on the ground that she received a notice from the sub-tenant that the second defendant is also making claim for rents on the ground that she purchased the property from the first defendant. After the filing of the suit, defendants 1 and 2 contended that they have taken possession of the property and hence the plaintiff prayed for injunction restraining defendants 1 and 2 from interfering with his possession and enjoyment of the plaint schedule property. Subsequently, finding that he has no case for injunction, he sought amendment of the plaint for recovery of possession. As against the said order, the petitioner preferred a revision and since the respondent gave up the relief of possession under Sec.6 of the Specific Relief Act this Court directed him to proceed with the suit for recovery of possession under general law. Accordingly, he filed amendment petition and introduced paras 5(a) and (b) and 7(a) and relief column 8(aa) contending that after the filing of the suit they have taken possession of the upstairs portion of the property, that defendants 1 and 2 continue to remain there, that their continuance amounts to trespass and that they have no right to continue such possession. It is specifically averred that so far as the plaintiff is concerned, defendants 1 and 2 are trespassers and the prayer was for directing the defendants 1 and 2 to hand over possession of the entire property to the plaintiff. It is stated by the petitioner who is the second defendant that she has purchased the suit property for a valuable consideration of Rs.2,50,000 and if the relief of possession is valued on the basis of the market value, the Court has no jurisdiction to try the suit and that he has raised a plea in the additional written statement that the court-fee paid is not correct and issue 3 has been framed. According to the revision-petitioner, there is no privity of contract between her and the plaintiff, and since the respondent-plaintiff sought a relief against her, the suit ought to have been for recovery of possession on the basis of the market value and not on the annual rent under Sec.43(1) (d) of the Act. Hence the relief prayed for in the petition is to decide the question as regards the valuation of the suit and the payment of court-fee in the first instance as provided under Sec.12(2) of the Court Fees Act before deciding the other issues.

(2.) THE said application is resisted by the respondent and it is stated in the counter that the suit is for recovery of possession of the suit property as a tenant and as a owner. THE revision petitioner simply because she purchased the property does not become a third party and her right of purchase is certainly subject to the right of tenant in his favour. THErefore, the payment of court-fee on the basis of the value of the property does not arise and that the suit squarely falls under Sec.43(1)(d) of the Act and the application is to be dismissed. Further, even though the revision-petitioner has stated that no proper court-fee has been paid, she has not raised the question of jurisdiction.

(3.) NOW, the next question that remains to be considered is whether in view of the addition of the relief prayed for against the petitioner for recovery of possession, the valuation done by the plaintiff under Sec.43(1) (d) of the Act is proper or whether the plaintiff has to value the suit for recovery of possession by valuing the property on the basis of the market value under Sec.25(a) or 30 of the Act. It is the contention of the revision-petitioner that the allegations in the plaint alone have to be taken into consideration and as seen from the allegations in the plaint, the second defendant as well as the first defendant were trespassers. Further, in more than one place it is stated that their continuance amounts to trespass and that they have no right to continue in possession. In the circumstances, since there is no privity of contract between the second defendant and the plaintiff and the plaintiff did not recognise the second defendant as her landlord and there is no relationship of landlord and tenant and on the other hand the plaintiff is seeking the relief on the basis that she is a trespasser, the suit shall be valued not under Sec.43(1) (d), but for recovery of possession as in other case under Sec.25(a) or Sec30 of the Act. As rightly contended by the learned counsel for the revision-petitioner, it is well settled that the question of court-fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole. If any authority for this proposition is needed, the decision in NEELAVATHI v. M.NATARAJAN, (1980)2 M.L.J. (S.C.) 21: (1980)2 S.C.R. 307: (1980)2 S.C.C. 247: (1980)1 S.C.J. 539: A.I.R. 1980 S.C. 691 at 693, can be cited. Further, this Court in an earlier case in a Special Bench consisting of three Judges in SURYANARAYANA v. NARASIMHASWAMY, (1939)1 M.L.J. 268: I.L.R. (1939) Mad. 367: A.I.R. 1939 Mad. 360, held to the same effect. That proposition is not disputed by the learned counsel for the respondent also. NOW the question remains to be considered is whether the suit has been properly valued. Though the plaintiff filed the suit on the basis of the tenancy in his favour from the first defendant, there is the involvement of the second defendant in the suit who has been inducted into possession by the first defendant. According to the plaintiffs, the defendants are trespassers. It is nowhere stated that the plaintiff recognised the second defendant as his landlord. In the circumstances, according to the learned counsel for the revision-petitioner, the suit cannot be valued under Sec43(1) (d). That section relates to the suit between the landlord and tenant. In this connection, the learned counsel for the plaintiff drew my attention to the decision in SURYANARAYANA v. NARAS1MHASWAMY, (1939)1 M.L.J. 268: A.I.R. 1939 Mad. 360 (referred to above) wherein a Special Bench of this Court held: