SHANKARLAL Vs. RAI SAHIB RICHHPAL RUNGTA

JUDGEMENT

(1.) THIS revision is directed against an interlocutory order passed by the second Additional District Judge, Durg, in civil suit No.7 of 1959 which is pending before him. The suit is for the specific performance of an agreement to lease on the allegations that on March 29, 1958. the plaintiff had agreed to give on lease his premises consisting of site with buildings situated in Gangipara, Durg. The agreement was later modified on August 31, 1958. The monthly rent agreed was Rs. 1250 -for the first five years. The defendant was to incur an expenditure to the extent of 60,000 -in converting the godowns into a cinema house. On the faith of these agreements the plaintiff allowed the defendant to demolish his godowns. Major part of the construction was completed by the defendant and he was exhibiting pictures in the house but the defendant was not prepared to execute the acceptance of the lease nor to get it registered. In the alternative, possession was claimed. The suit was valued at Rs. 15,000 - "being rent for the first year's lease" and court -fee of Rs. 1020 -was paid. The defendant did not dispute the correctness of the valuation of the suit or of the adequacy of the court -fee paid. The trial Judge, however, framed a preliminary issue on July 30,1960. The case was fixed for the 2nd August, and then for the 18th August. On the latter date the Court was otherwise busy and this case was adjourned to the 28th September. But on the 20th August the Court took up this matter again and decided to postpone the determination of the question of court -fee together with other issues because of a circular of the High Court (No. 7406 -3 -1 -46 -58 dated 22 -7 -60) according to which suits were to be disposed of within six months. Consent of Shri Jha and Shri Bhargava ( i. e. counsel for both the sides) was recorded. On April 3, 1961 the defendant made an application that the preliminary issue regarding court -fee should be first decided. The trial Judge rejected the application in view of his order dated August 20, 1960.

(2.) SINCE the Court framed a preliminary issue there was no point in postponing its decision; all the more so, when it was clearly said in the order dated 30 -7 -60 that the parties did not want to lead any evidence on that issue. If the Court found that the court -fee paid was less than requisite, he could not proceed with the suit unless the deficiency was made up, and it would have been in the plaintiff's choice to make up the deficiency or not to proceed with suit. Thus the question of court fee must have been decided as early as possible. It seems to me that the time which the learned trial Judge spent in fixing dates, hearing applications and passing orders on this question was sufficient to dispose of the issue itself. Ordinarily I would have allowed the revision and would have directed the trial Judge to dispose of the issue of court -fee first but the point is so obvious that it must be disposed of at once. I have heard the learned counsel for both the sides.

(3.) SHRI Deoras strenuously urged that the plaintiff should have paid ad valorem court fee in respect of his prayer for possession. According to the learned counsel the plaintiff is claiming possession from the defendant as a trespasser. It seems to me that this contention is untenable. The plaintiffs' suit against the defendant is on the basis of relationship of land -lord and tenant. The defendant entered into the suit premises as a tenant of the plaintiff. In respect of that relief, therefore, it is Section 7 (xi) (cc) which applies. There too the court fee payable is according to the amount of rent payable for the next year before the date of presenting the plaint. The suit was filed in 1959 i. e. within the first five years of the agreement of lease. The monthly rent fixed was Rs. 1250/ - p. m. which come to Rs. 15,000/ - for the year. S. 7 (xi) (cc) of the Court Fees Act runs thus: