GOPAL DAVE Vs. HASH MUKH

JUDGEMENT

(1.) IN this writ petition, filed under Article 227 of the Constitution of INdia, the petitioner has prayed for quashing impugned order dated 16.5.2009 (Annex. 5) passed by Civil Judge (Jr. Dn.) & Judl. Magistrate (First Class), Desuri (District Pali) in Civil Original Suit No. 7/02.

(2.) AS per facts of the case, the petitioner preferred suit against the respondents before the trial Court for permanent injunction, in which, it is prayed that being tenant the petitioner is in possession of house at village Narlai (Tehsil Desuri) in the locality of Mohalla Kumharon-ka-Bas and respondent-defendants may be restrained from evicting the petitioner-plaintiff without taking recourse to law. The said suit was filed in the month of February 2002. Thereafter, during the pendency of the suit, the petitioner was forcibly evicted from -the house in question, therefore, an amendment application was filed by the petitioner-plaintiff under Order 6 Rule 17, C.P.C. and the said application was allowed by the trial Court. Thereafter, necessary amendments were made in the suit.

(3.) LEARNED counsel for the petitioner while challenging the order impugned submits that as per Section 41 of the Act of 1961, if the suit in between landlord and tenant is filed for recovery of possession of the property from which the tenant has been illegally ejected by the landlord, the fee shall be levied on the amount of rent for the immovable property to which the suit relates payable for the year next before the date of presenting the plaint. Therefore, in the facts and circumstances of the case, Section 29 of the Act of 1961 will not apply because if the initial suit has been filed for possession, then, court fee is required to be levied on the basis of market value of the property; but, here, in this case, the facts are altogether different for the reason that initially the suit was filed for permanent injunction for direction to the defendant not to evict the plaintiff forcibly from the property in question but, during the pendency of the suit, he was forcibly evicted but without considering the above fact the order impugned has been passed. In this view of the matter, the trial Court has committed gross illegality while not considering the entire facts of the case in right perspective, therefore, the impugned order deserves to be quashed.