A suit for recovery of possession from a tenant, including a tenant holding over after determination of tenancy, is governed by Section 7 (xi) (cc) of the Court Fees Act and court fee is payable on the annual rent of the property.

( 1 ) THE petitioner instituted a suit for possession of a shop 5039, Dina Nath Building, Pahargunj Delhi and for Rs. 2,410. 20 on account of arrears of rent. The claim in the suit was that late Babu Ram was the tenant whose tenancy had been terminated during his life time. Now possession and arrears of rent and damages were claimed from the heirs and L. R s of said Babu Ram. Value for purposes of Court fee and jurisdiction was fixed at Rs 1000. 00 for relief of possession.

( 2 ) DEFENDANTS 3 and 4 claimed that the suit was not properly valued. This led to the framing of the issue whether the suit is properly valued for purposes of court free and jurisdiction.

( 3 ) THE contention of the plaintiff was that the suit fell within S. 7 (xi) (cc) of Court fees Act, but defendants urged that the suit had to be valued U/s 7 (v) and thus court fee had to be paid on market value of the property. Trial court held that S. 7 (xi) applied only in a suit between a landlord and tenant holding over and thus court fee was payable on the market value. Plaintiff then filed the revision.

( 4 ) THE question which has arisen before the Court is one which has very often been urged in the past and there are a large number of reported judgments concerning the question as to how court fee is to be paid. Relevant language of S. 7 (xi) (cc) is "for recovery of immovable property from a tenant including (a) tenant holding over after determination of tenancy. . . according to the amount of rent payable for the year next before the date of presenting the plaint. "

( 5 ) THUS, if the suit falls under this provision, court fee payable, is to he paid on the annual rent of the property. On the other hand, if the case falls within Section 7 (v) which are suits for possession of land, houses, etc. , then the court fee has to be paid on the market value of the property. Obviously, in every case, the annual rent is a much smaller amount than the value of the property, and thus in a suit brought between a landlord and tenant, the court fee is much less and so is the jurisdictional value.

( 6 ) THE claim of the plaintiff in this respect is based on a tenancy which was created in favour of Shri Babu Ram, predecessor-in-interest of the defendants. The said tenancy was terminated but, Shri Babu Ram continued to remain in the premises as a statutory tenant under the protection of the Delhi Rent control Act. On his death, the statutory tenancy came to an end, such is the claim of the plaintiff. The claim of the plaintiff to recover possession from the heirs and legal representatives is not a claim against a tenant and thus the court has held that the court fee is payable on the market value. In as much as the court has rightly held that the defendants are not tenants at first sight it would seem that the decision is correct. However, this point has arisen very often and it has always been found that suits falling under section 7 (xi) are suit brought not against tenants, but against ex- tenants or their representatives. It is obvious that no landlord can eject a tenant during the continuance of the tenancy. Such a suit can only be brought against an ex-tenant. This point led to a great deal of confusion in the past, but it was finally settled by the decision of the Privy Council in Karmani Industrial Bank Ltd. , V. Satya Niranjan 55, Ind. Case. 344 (A. I. R. 1928, P. C. 227 ). The observations of the Court may be reproduced with advantage ;

"their Lordships are of opinion that this adopts too narrow a construction of the words. In order to give any working effect to the Act it is necessary that the words "landlord and tenant must include, as they often do in ordinary parlance, exlandlord and ex-tenant. An action against ex-tenant might ordinarily be described as an action of landlord against tenant. "

I think, that this is undoubtedly the true position in law, because no ejectment suit can be brought without firstterminating the tenancy or, allowing the tenancy