MULJIBHAI PITAMBERDAS Vs. BAI CHANCHAL

JUDGEMENT

(1.) THESE applications arise out of a suit in which the facts were that the defendant contracted to sell a piece of land to the plaintiff- at a certain rate in 1938,: that the plaintiff alleged that Rs. 500 were paid by him to her as earnest money and that under the contract a registered deed of sale was to be passed within three months of the contract and possession of the property was to be handed over to the plaintiff. According to the plaintiff another sum of Rs. 1,000' was paid to the defendant, the time for passing the sale-deed being extended on that occasion. As the defendant failed to pass the sale-deed or deliver possession of the property, as agreed, the plaintiff filed the suit for getting a registered sale-deed executed by the defendant and, for getting possession of the property. There was an alternative prayer for damages of Rs. 1,500 and refund of the amount paid in case the Court did not enforce specific performance of the contract.

(2.) THE defence was that proper court-fee had not been paid. THEreupon the plaintiff contended that his suit fell under Section 7 (v) of the! Court-fees Act, 1870, as it was a suit, for possession ; while according to the defendant the suit fell under Sub-section (x) (a) of Section 7 of the Act, which specifically provides, for suits for specific performance of a contract of sale and states that the court-fee payable in the case of such a suit would be according to the amount of consideration. Both the Courts below have held that there is no substance in the contention of the plaintiff and that court-fee should be paid in accordance with Sub-section (x) (a) of Section 7 of the Court-fees Act.

(3.) WE must, therefore, hold that it would be improper to regard this suit as a suit for possession of land within the meaning of Section 7(v) ; and in our opinion the view taken by the High Courts of Madras, Allahabad and Lahore in Sundara v. Sivalingam, Nihal Singh v. Sewa Ram and Fakir Chand v. Ram Datt is correct, viz. that a case of this nature falls under Section 7(x) (a) of the Court-fees Act.