RAMENDRA MOHAN DATTA, PABITRA KUMAR BANERJEE, CHITTATOSH MUKHERJEE

( 1 ) THIS Special Bench has been constituted under Rule 1 (ii), Chapter-II of the Appellate Side Rules for hearing the following question of law which has arisen in two Civil Orders under S. 115 of the Civil Procedure Code, 1908:"whether a Suit for Specific Performance of a Contract for granting lease together with a prayer for Delivery of Possession of the suit property should be valued under clauses (xii) (c) or under clause (v) of S. 7 of the West Bengal Court Fees Act, 1970".

( 2 ) ON 16th May, 1980 Sm. Dhiraj Bala Karia, instituted Title Suit No. 968 of 1980 in the City Civil Court at Calcutta, inter alia, for a decree of permanent injunction to restrain the defendant, M/s. Jethia Estates Pvt. Ltd. , from letting out any person other than the plaintiff the ground floor and the first floor of premises no. 20 Rupchand Roy Street measuring about 4330 Sq. ft. The plaintiff averred that there had been an agreement between the plaintiff and the defendant for letting out the said suit premises to the plaintiff for 21 years with option for renewal for another 21 years, inter alia, on the following terms: -a) The rent would be Rs. 500/- per month. b) An advance of Rs. 70000/- would be paid by the plaintiff to the defendant to be adjusted against the rent @ 250/- per month. c) An amount of Rs. 30000/- would be by the plaintiff with the defendant in suspense account for the future. The plaintiff alleged that in breach of the said agreement to let out the premises to her, the defendant was trying to induct another person as the tenant of suit premises. For the purposes of court fees, the suit was valued at Rs. 100/- for injunction and court fees were paid thereon.

( 3 ) SUBSEQUENTLY on plaintiff's application the plaint of the said Title Suit No. 968 of 1980 has been amended, inter alia, by inserting the following prayer (aa):"that the defendant do forthwith execute/lease in respect of the suit premises (described in the schedule to the plaint) in favour of the plaintiff and to do acts for registration thereof and to put the plaintiff in full possession of the property. "

( 4 ) THE plaintiff in amended paragraph 13 of her plaint has averred that for purposes of court fees, the suit is valued at Rs. 100/- for injunction and Rs. 6000/- (being annual rent for the first year of the lease) in terms of S. 7 (xii) of the West Bengal Court Fees Act, 1970 for Specific Performance of the Agreement of Lease and Court Fees is paid thereon.

( 5 ) M/s. Jethia Estates Pvt. Ltd. , the defendant in the said Title Suit, who denied that there was any agreement between the parties for grant of lease of the suit premises to the plaintiff, made an application before the trial court under Ss. 10 and 11 of the West Bengal Court Fees Act, 1970, for determination of the correct valuation of the suit after investigation. The case of the defendant Company was that the plaintiff, having prayed for a decree for delivery of possession in addition to a decree for Specific Performance, she was bound to pay ad valorem court fees according to the market value of the subject matter of the suit in terms of clause (v) of S. 7 of the West Bengal Court Fees Act, 1970. Under S. 8 of the Suits Valuation Act, 1887, in case of a suit under clause (v) of S. 7 of the Court Fees Act, the value as determinable for computation of court fees and value for the purposes of jurisdiction shall be the same. The defendant also urged that the value of the subject matter of the aforesaid suit would far exceed the limits of pecuniary jurisdiction of the City Civil Court and, therefore, the said court is not competent to try the suit.

( 6 ) THE learned Judge, 13th Bench, City Civil Court by his Order No. 35 dated 6th July, 1981 accepted the plaintiff's contention that the court fees upon the plaint are payable according to the provisions of clause (xii) (c) of S. 7 of the West Bengal Court Fees Act, 1970 but has fixed Rs.

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