What is the proper court fee payable in a suit for recovery of possession instituted against the alleged tenants pursuant to finding by the Rent Control Court under the Proviso to Section 11 (i) of the Kerala Buildings (Lease and Rent Control) Act that the denial of the landlord's title by the alleged tenants is bona fide is the question which arises in this writ petition under Article 227.

2. Ext.P-1 is copy of the plaint filed by the petitioners and one of the facts mentioned as constituting cause of action for the suit is the dismissal of rent control petition, which had been filed by the plaintiffs against the defendants on finding that the defendants' denial of the plaintiffs' title is bona fide. The prayer in the suit is to allow the plaintiffs to recover the suit schedule building, holding that the grounds envisaged by Section 11(2)(b) and Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are established. The above prayer has been valued under Section 43(2) of the Court Fees and Suits Valuation Act. It was contended by the defendants inter alia that the valuation of the suit is improper and the court fee paid is insufficient. They reiterated their contention before the Rent Control Court that they are not tenants as defined under Act 2 of 1965 and that there is no landlord tenant relationship between the plaintiffs and them. The learned Munsiff formulated an issue as to the propriety of the valuation and sufficiency of the court fee and by Ext. P-2 order decided the issue in favour of the respondents/defendants.

3. I have heard the submissions of Advocate Sri Sreekesh on behalf of the petitioners and also those of Sri V. Chitambaresh, the learned counsel for the respondents. Sri Sreekesh would submit on the authority of various judgments of this court that the court fee payable on a plaint is to be determined on the basis of the averments in the plaint and that the court is not expected to look into the defendants' contentions while taking decision on that question. It is true that the Rent Control Court has found that denial by the respondents of the petitioners' title is bona fide. But, the plaintiffs still maintain that the respondents are tenants and the valuation of the suit is to be decided on the basis of the plaint averments. The Rent Control Court significantly has not found that the plaintiffs have no title but what has been found is only that the denial of the plaintiffs' title by the respondents cannot be said to be not bona fide. The court below was not at all justified in holding that the plaintiffs are not entitled to invoke Section 43 of the Court Fees and Suits Valuation Act for the purpose of valuation, submitted the learned counsel.

4. Sri V. Chitambaresh the learned counsel for the respondents would resist the submissions of the learned counsel for the petitioners vehemently. According to him, it is too late for the petitioners to contend that the respondents are tenants. The Rent Control Court has accepted the contention of the respondents that they are not tenants of the petitioners. The order of the Rent Control Court has attained finality and it is accepting the said order that the petitioners have instituted the present suit. Sri Chitambaresh further submitted that unlike in an ordinary civil suit filed by a landlord of the building situated in an area not covered by the Rent Control Act, in the present suit, the petitioners will have the extra burden of establishing grounds under the Rent Control Act apart from establishing his title.

5. It is by now fairly settled by various judicial precedents including the judgment of the Supreme Court in Kuriyakkatt Chacko v. Ayissumma A.I.R. 1967 (S.C.) 176 and by those of this court in E.P. Muthu Rowther v. Muhammed Ali Rowther 1970 K.L.T. 1043, Kunjunni v. Jacob 1992 (2) K.L.T. 232 and Abdul Razack v. Anjaneyan 2002 (2) K.L.T. 670 that the averments in the plaint will have to be accepted prima facie for determining the payable co