The subject matter of the suit for possession determines the valuation for court fee, which should be based on the market value of the property.

B.S.Verma, J.(Oral)

Heard learned counsel for the parties and perused the record.

2. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari to quash the order dated 1-2-2005 (Annexure No.1 to the petition) passed by respondent no.4, whereby the learned trial Court on Preliminary Issue No.6, framed in O.S. No. 177 of 2002, has held that the court fee paid by the plaintiff on the annual rent of the premises is proper. The Issue no. 6 has been decided in favour of the plaintiff and against the defendant.

3. Relevant facts giving rise to the present writ petition I brief are that Smt. Premlata and Kaushal Kishore, plaintiff-respondent nos. 1 and 2 filed a suit against the petitioners and Nagar Palika Parishad (respondent no.3 herein) in the court of Civil Judge (Junior Division) Haridwar, which was registered as O.S.No. 177 of 2002. In the suit, the plaintiffs have sought the relief for possession of the property detailed at the foot of the plaint. In the suit, the defendants-petitioners no. 1 and 2 filed their written statement jointly. In the written statement the defendants have raised a number of pleadings and in paragraph no. 47 thereof, the defendants have pleaded that the suit has been wrongly valued arbitrarily on Rs. 825/- while the valuation of the suit should have been made on the market value of the property in dispute and that the court has no pecuniary jurisdiction to try the present suit.

4. It appears that the trial Court has framed preliminary Issue No. 6 on the point of valuation of the suit and payment of court fee. The trial court while disposing of the Issue No. 6 has observed that from a perusal of the record it is evident that the suit has been valued at the rate of annual rent of Rs. 825/-, on which the court fee has been paid. The trial Court has decided the issue in favour of the plaintiffs by order dated1-2-2005, which gave rise to the present writ petition.

5. The main ground of challenge raised in this writ petition is that the impugned order is not tenable because the valuation of the suit for possession of property must be valued on the market value and not on the yearly rent.

6. Learned counsel for the petitioners in support of his contention that the suit for possession should have been valued on the market value of the property has placed reliance upon the judgment of the Allahabad High Court in the case of Virendra Nath Agrawal and another Vs. Addl. District Judge, IX Kanpur and others [1984 (1), Allahabad Rent Cases, Page 253].

7. I have perused the judgment rendered by the Allahabad High Court. In the case before the Allahabad High Court, the Munsif by his order dated 20-2-1979 held that the dispute was in respect of tenancy rights and, therefore, the suit was rightly valued on the annual rent of the premises and the court-fee paid was sufficient. The defendants preferred a revision, which was dismissed by the impugned order of the learned Judge dated 20-8-1979. The contention of the petitioners in that writ petition was that the law requires the suit to be valued under Section 7(v)(ii) of the U.P. Court Fees Act according to the market value of the shop in question and in that even only the Civil Judge would have the jurisdiction to try the suit. The Allahabad High Court in paragraph 7 of the judgment has observed as under:-

“7. Section 7(v) contemplates a suit for possession of lands, buildings or gardens and provides that in such suit the amount of Court-fee payable shall be according to the value of the subject-matter; that sub-clause (ii) of clause (v) of Section 7 provides that where the subject-matter is a building or garden, the Court-fee shall be paid according to the market value of the building or garden, as the case may be. The question, therefore, arises as to what was the subject-matter of the present suit. The relief claimed in the plaint was clearly that of possession over the shop. Therefore, the subject-matter is nothing but th