A counter-claim related to a licensee's possession falls under the jurisdiction of the relevant authority, not a civil court, as it necessitates a substantive evaluation of the agreement's terms.

JUDGMENT :

ANIL L. PANSARE, J.

Heard. Issue Rule returnable forthwith. The learned Counsel for Respondent waives service of Rule on behalf of the Respondent. With consent of the learned Counsel for the parties, the Petition is taken up for final hearing.

2. This Petition arises out of the rejection of application filed by the Petitioner under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short ‘the Code’) together with registration of the counter-claim without payment of Ad-veloram Court Fees.

3. The Petitioner/Original Plaintiff filed a suit against the Respondent/Original Defendant for specific performance of contract. The Respondent filed a written statement with counter-claim seeking declaration and possession of the suit property. The counter-claim is based on the premise that the Respondent was in financial crisis and required a sum of Rs.4,50,000/- for repayment of loan due to the Bank. Accordingly, he requested the Petitioner to extend finance to pay loan amount. The Petitioner agreed to do so on the condition of Respondent providing the block of first floor of the suit property on leave and license basis for monthly license fees of Rs.10,000/-. This license fee was to be adjusted towards repayment of finance and upon full discharge, the Petitioner was to vacate the premises. According to Respondent, the finance of Rs.4,50,000/- was fully adjusted on or about 15/4/2012, and therefore, the Petitioner ought to have vacated the suit premises. Having not done so, the Respondent sought declaration of the Petitioner being a trespasser and to restore possession.

4. The Petitioner filed application (Exhibit-49) under Order VII Rule 11 of the Code on two counts. One is that, the counter-claim is barred in view of Section 33 read with Section 47 of the Maharashtra Rent Control Act, 1999 (for short, ‘the Act of 1999’); and the second is, the counter-claim was neither properly valued nor the Court Fees paid in terms of the reliefs sought. According to the Petitioner, since the Respondent is claiming possession and compensation, the suit ought to have been valued accordingly.

5. The trial court, opined that the Respondent has sought declaration of the Petitioner being a trespasser and not a tenant and that the claim of compensation is in the form of damages towards mesne profit and not license fees, and therefore, the provisions of the Act of 1999 will not apply on the point of payment of Ad-veloram Court Fees. The trial court held that the question, whether Petitioner’s possession over the suit property is that of a trespasser, has been not yet decided and unless the same is decided, the entitlement of Respondent for mesne profit cannot be ascertained. The trial court, accordingly, held that once these questions are answered in favour of the Respondent, then only he will be required to pay requisite Court Fees.

Accordingly, the trial court rejected the application.

6. In my view, the trial court committed serious error of law in deciding both the questions involved in the case. It is well settled that the counter-claim is treated as plaint and the questions as regards jurisdiction and payment of Ad-veloram Court Fees are wholly dependent on the pleadings made in the counter-claim. As stated earlier, the Respondent, while filing counter-claim, has made certain averments which were relevant to decide the jurisdiction of the court. The Respondent averred that the parties entered into an agreement of leave and license with an understanding that license fees of Rs.10,000/- shall be adjusted towards repayment of finance and upon adjusting the entire liabili