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1957 Supreme(AP) 303
HIGH COURT OF ANDHRA PRADESH
K.SUBBA RAO,SRINIVASACHARI, JJ.
Kondavati Naganna
Versus
Matukumilli Satyanarayana
Civil Revn. Petn. No. 445 of 1955 to revise order of Dist. Munsif, Amalapuram
Decided On : 24-12-1957
M.S. Ramachandra Rao and M. Krishna Rao, for Petitioner; G. Chandrasekhara Sastri and M. Suryanarayana Murty, for Respondents.
A suit for possession by a lessee against a former tenant is governed by Section 7, Clause (V) of the Court Fees Act and not Section 7, Clause (XI) (CC) of the Court Fees Act.
Headnote:
COURT FEES ACT - SECTION 7, CLAUSE (XI) (CC) - SUIT FOR POSSESSION BY LESSEE AGAINST FORMER TENANT - COURT-FEE PAYABLE.
Fact of the Case:
Plaintiff filed a suit for possession as against defendant 1 alleging that he had obtained a lease of the suit properties from defendants 2 to 5 for one year 1953-54. The 1st defendant is said to be a benamidar for the 6th defendant. The plaintiff claimed possession from the 1st defendant as from a tenant holding over. Defendants 1 and 6 pleaded that they had been given a three-year lease from 1953-56 including the suit year. The plaintiff paid court-fee under Section 7, Clause (XI) (CC) of the Court Fees Act.
Finding of the Court:
The court held that the suit would be governed by Section 7, Clause (v) of the Court Fees Act. The court held that the word 'landlord' occurring in paragraph (XI) could not be deemed to include a lessee from the landlord. The court held that a lessee is entitled to have possession of the property leased and for that purpose could pursue the same remedy as against a person in occupation, as the landlord would do, but his position cannot be equated to that of a landlord within the meaning of clause (cc), paragraph (XI) of Section 7 of the Court-Fees Act.
Issues: Whether the suit for possession by a lessee against a former tenant is governed by Section 7, Clause (XI) (CC) or Section 7, Clause (V) of the Court Fees Act.
Ratio Decidendi: The court held that Section 7, Clause (XI) (CC) of the Court Fees Act clearly contemplates there being a privity of contract of landlord and tenant as between the parties to the suit. There could not be any privity of contract between an original lessee and a subsequent lessee. The court held that a lessee is entitled to have possession of the property leased and for that purpose could pursue the same remedy as against a person in occupation, as the landlord would do, but his position cannot be equated to that of a landlord within the meaning of clause (cc), paragraph (XI) of Section 7 of the Court-Fees Act.
Final Decision: The revision was allowed with costs. The petitioner was permitted to amend his written statement as prayed for. The case was sent back to the lower Court for further proceedings.
Judgment of the Court was delivered by
SRINIVASACHARI, J. : -
This is a revision preferred against the order of the District Munsif, Amalapuram, in I. A. No. 225 of 1955 in O. S. No. 104 of 1953. The 6th defendant is the petitioner before us. The plaintiff filed a suit for possession as against defendant 1 alleging that he had obtained a lease of the suit properties from defendants 2 to 5 for one year 1953-54. He further alleged that the 1st defendant was a prior lessee under a lease granted by defendants 2 to 5 for 1952-53.
The 1st defendant is said to be a benamidar for the 6th defendant. The plaintiff claimed possession from the 1st defendant as from a tenant holding over. Defendants 1 and 6 pleaded that they had been given a three-year lease from 1953-56 including the suit year. The plaintiff paid court-fee under Section 7, Clause (XI) (CC) of the Court Fees Act.
2. The contention raised by the 6th defendant was that the plaintiff was only a lessee from the owners of the property and if he sought to get possession from a former tenant holding over, his suit could not be regarded as a suit for eviction by a landlord as against a tenant. The contention was that such a suit would fall under Section 7 Clause (V) of the Court Fees Act and therefore the court-fee payable would be on the market value of the property. He prayed that he might be permitted to amend the written statement so as to add this plea.
3. The Munsiff following a decision of Bell, J., in Ghulam Dastagir Saheb v. Marudai Pillai, 1948-1 Mad LJ 338 : (AIR 1948 Mad 409) (A), held that in a case of this kind the court-fee payable was only under Section 7, Clause (XI) (cc) of the Court Fees Act and that the court-fee paid was sufficient. He, therefore dismissed the petition. Aggrieved by the above order the 6th defendant has come up to this Court.
4. Section 7 para (XI) of the Court Fees Act relates to suits between landlords and tenants and Clause (cc) therein speaks of a suit for the recovery of immoveable property from a tenant including a tenant holding over after the termination of the tenancy. This paragraph, therefore prescribes the court-fee in certain specified classes of suits between landlord and tenant, that is to say, clauses (a), (b) and (cc) relate to suits by landlords against tenants and clauses (c), (d), (e) and (f) relate to suits by tenants against landlords.
From the language of the section it would be clear that the scope of suits coming under paragraph (XI) therefore is restricted in its operation. Clause (cc) was inserted by the amending Act, Act VI of 1905. The effect of this amendment was clearly to take such suits out of clause (v). Paragraph (XI), therefore, excludes suits brought on the basis of title and only relates to a suit based on a contract of lease simpliciter.
A suit based on alleged relationship of landlord and tenant comes within Section 7 (XI) (cc) of the Court Fees Act. This clause is intended to cover all cases where the landlord seeks to recover the property from a person who has been his tenant and whose tenancy has come to an end. The words including a tenant etc.; after the word tenant amplify the meaning of the terms tenant rather than restrict it. The Lower Court has based its decision upon a judgment of Bell, J. as stated already, in 1948-1 Mad LJ 338 : (AIR 1948 Mad 409) (A).
That was a case where the tenancy had terminated by efflux of time and the Municipal Council which was the lessor agreed to renew the lease and passed resolution to that effect and got the renewal confirmed by the Government. The tenant continued to be in occupation. Later the Government revoked the order relating to the confirmation of the renewal. The Municipality, therefore, informed the tenant that he could not continue in possession.
It held a public auction wherein the lease of the premises was granted to the plaintiff. This lease was for a period of 3 years. The new lessee sought the assistance of the Council to eject the former tenant
