A suit for possession of a shop from the heirs of a deceased tenant, who were in possession without any right, falls under Section 7(v)(e) of the Court Fees Act, 1870, and not under Section 7(xi)(cc).

Mehar Singh, J.

1. In this revision application from the order, dated April 2, 1966, of the Additional Subordinate Judge of Ambala City, the only question that requires consideration here is whether to the averments in the plaint of the applicant, who is the plaintiff in the suit, if is Section 7 (v) (e) or 7 (xi) (cc) of the Court-fees Act 1870, that applies, the trial Court having answered this question against the contention of the applicant that it is Section 7 (xi) (cc) that applies to the avermants made by him in his plaint.

2. The ground-floor of a shop was taken on rent from the applicant by Om Parkash by a rent note of September 6, 1961, for a period of 11 months, the tenancy commencing from September 1 1961. On the expiry of 11 months. Om Parkash did not vacate the shop and continued in possession of it under the protection of the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act 3 of 1949), and thus according to the very statement in the plaint of the applicant, he became a statutory tenant under the applicant. It is stated in the plaint of the applicant that Om Parkash continued paying rent to him, as statutory tenant, down to the end of February, 1964. He was murdered on March 12, 1964. The defendants who are respondents to this application, are the widow and children of Om Parkash deceased. The plaint says that they cannot claim any right in the shop in question and that they are in possession of ii without any right. Having said this the applicant claims a decree for possession against them and a money decree for use and occupation of the shop from the date of the death of Om Parkash to the date of the suit. It is nowhere stated in the plaint that the respondents are holding over the shop as tenants. It is nowhere stated in the plaint mat they are tenants of any type under the applicant. In the plaint, a straight averment of the applicant has been that after the death of Om Parkash, his heirs have been in possession of the shop without any right and thus are liable to be dispossessed with a further liability to pay compensation for use and occupation of the shop after the death of Om Parkash. On such averments, the learned trial Judge, as stated, has come to the conclusion that this is not a case in which the applicant has asked for the recovery of immovable property from a tenant including a tenant holding over after the determination of tenancy, within the meaning and scope of Section 7 (xi) (cc), but that the averments in the plaint bring the claim of the applicant squarely under Section 7 (v) (e) of Act 7 of 1870.

3. It has been repeatedly held that the matter of Court-fee is to be decided upon on the nature of averments made in the plaint by the plaintiff and not having reference to anything said by the defendant by way of defence in his written statement. Respondents in their written statement in the present case have said that Om Parkash took the tenancy for and on behalf of the Joint Hindu Family and, therefore, they continue in possession of the shop as tenants being protected by East Punjab Act 3 of 1949. However, for the matter of Court fee this averment of the respondents is not to be taken into consideration. On the straight averments in the plaint of the applicant, the case is laid as one for possession of the shop with a claim for mesne profits for its use and occupation and it clearly falls under Section 7 (v) (e) of Act 7 of 1870.

The argument of the learned counsel for the applicant, however, is that it is the substance of the plaint and the claim made in the plaint that hava to be seen, and that when that is done, what the applicant has claimed in the plaint is in substance that the respondents are holding over after the determination of the tenancy in favour of Om Parkash deceased. The learned counsel further says that the death of Om Parkash deceased makes no difference. He explains that after the determination of the contractual tenancy at the end of the 11 months from t