ORDER :

This misc. petition has been preferred by the petitioner/defendant/tenant challenging the order dated 25.09.2023 passed by 7th Civil Judge Junior Division, Jabalpur in RCSA No.8124/2020 whereby trial Court has dismissed petitioner's application under Order 7 Rule 11 read with Section 151 CPC.

2. Learned counsel for the petitioner submits that the respondent 1/plaintiff has instituted a suit for eviction of shop as well as for arrears of rent w.e.f. April 2020 and has valued the suit and paid requisite court fees for eviction only, but has not valued the suit in respect of arrears of rent and also not paid requisite court fees and by filing application under Order 7 Rule 11 CPC, this illegality was brought to the notice of trial Court but the Court has also not taken cognizance of it and has dismissed the application holding that the plaintiff has rightly valued the suit and paid requisite court fee. With these submissions learned counsel prays for allowing the misc. petition.

3. Heard learned counsel for the petitioner and perused the plaint and impugned order.

4. Perusal of relief clause 10(ii), as claimed in the plaint, shows that the plaintiff in addition to the relief of eviction, has claimed arrears of rent also w.e.f. month of April 2020 along with compensation of Rs.100/-per day, but has not valued the suit for that purpose and has also not paid any court fees. Undoubtedly the instant suit would be governed by section 7(xi)(cc) of the Court Fees Act, 1870.

5. For due appreciation, provision contained in section 7(xi) of the Court Fees Act, 1870 is quoted as under:-

"Between landlord and tenant-(xi) In the following suits between landlord and tenant:-

(a) for the delivery by a tenant of the counterpart of lease,

(b) to enhance the rent of a tenant having a right of occupancy,

(c) for the delivery by a landlord of a lease,

[(cc) for the recovery of immoveable property from a tenant, including a tenant holding over after the determination of a tenancy,]

(d) to contest a notice of ejectment,

(e) to recover the occupancy of [immoveable property] from which a tenant has been illegally ejected by the landlord, and

(f) for abatement of rent-

according to the amount of the rent of the [immoveable property] to which the suit refers, payable for the year next before the date of presenting the plaint".

6. So far as the question of valuation of suit for purpose of arrears of rent (prior to suit) is concerned, a coordinate Bench of this Court has, in the case of Shri Ramkrishan Trading Co. v. Smt. Shakuntla Devi, 1982 MPWN 401, held as under :-

“The learned counsel for the non-applicant has vehemently argued before me that there is no need of paying Court fees for the amount of arrears of rent, as has been held by the Courts below. It has been alleged in the plaint that if the defendant fails to deposit the amount of arrears of rent, a decree for the said amount be also passed in favour of the plaintiff and he will pay the Court fees subsequently. This sort of prayer, which, amounts for asking for arrears of rent, even though made in a very clear language, cannot be said to be sufficient so as to evade the payment of Court fee and, in my opinion, payment of Court-fees, arrears of rent is absolutely essential and the order of the Courts below in this regard is correct. If the plaintiff does not want to pay the Court-fee for the said relief, then she will have to delete the said prayer for passing a decree for arrears of rent.”

7. Aforesaid view of coordinate Bench of this Court in the case of Shri Ramkrishan Trading Co. (supra) has already been affirmed by Division Bench of this Court in the case of Omprakash Gupta (Dr.) vs. Ram Prakash and others 1994 JLJ 26 = 1993 MPLJ 869 (DB). Relevant paragraph 15 of which is as under :

“15. The question still remains to be decided whether on such transfer, in view of the law laid down in Baijnath 's case (supra), a landlord can seek eviction on the ground of default in payment of arrears of rent under S