BAI MEHERBAI NANABHAI BANAJI Vs. RRDADINA

JUDGEMENT

(1.) This was a suit by a landlord to eject a tenant from a house occupied by the tenant It was, therefore, a suit for possession of a house and but for the amendment of the Court Fees Act in 1905, the Court fees would have been payable on the value of the house. Consequently the value of the house would decide the jurisdiction and it would follow that the pleader's fees would be payable on the value of the house.

(2.) Now that in a suit for recovery of immoveable property from a tenant the Court fees are payable according to the amount of rent of the property in the suit payable for the year next before the date of the presentation of the plaint, it follows that the Court fees are payable only on the amount of the annual rent and the amount of the annual rent would decide also the question of jurisdiction. But it does not necessarily follow that the pleader's fees, which were payable under the Act which was in-force when this suit was filed, would nor, be fixed according to the decision in Bai Meherbai V/s. Mayanchand (1904) I.L.R. 29 Bom. 229; 7 Bom. L.R. 131 by the value of the house. It cannot be disputed that the subject-matter in dispute was the house and it is difficult to separate possession of the house and the house itself unless a distinction is made specifically by rule. Therefore, we think that the decision of the Taxing Officer is wrong and that the pleader's fees must be calculated on the amount at which the claim was valued when the suit was tiled 1 or the purpose of jurisdiction, which was practically recognised as correct by the appellant-defendant when the first appeal was presented to this Court. It may be a matter for future consideration whether the Third Schedule to the Bombay Pleaders Act XVII of 1920 should not be altered be as to provide for the calculation of pleaders fees in suits by landlords against tenants for immediate possession of the immoveable property in the tenants occupation. Shah, J.

(3.) I agree.