M. Shahul Hameed vs Kanda Iyer and Another

T. Ramaprasada Rao, J.—The first defendant is the petitioner in this Civil Revision Petition. The plaintiff filed a suit for a declaration that he

is entitled as of right to be in possession of the suit property by virtue of an assignment which he secured under deed dated 33rd September, 1963,

from one Chockalinga Chettiar with whom admittedly the first defendant entered into a registered agreement of lease on 5th September, 1963.

After entering into such a lease agreement with Chockalinga Chettiar, the first defendant purports to put the second defendant in possession of the

property. The plaintiff, who by then has secured a right to obtain possession of the property, files this suit but valued the same for purposes of

Court-fee and jurisdiction u/s 43(d) of the Court-fees Act read with Section 25(d) of the said Act. After the written statement was filed, he (the

plaintiff) sought to amend the plaint by substituting Section 42(c) instead of Section 43(d) as originally stated by him in the plaint. The learned

District Munsif after hearing all the contention of the parties allowed the amendment. The main question, that is now argued before me by the first

defendant who has come up to this Court being dissatisfied with the order of the learned District Munsif, is one of Court-fee.

Learned Counsel for the petitioner (first defendant) before me would state that the plaint as such does not refer to specific performance of any

contract and therefore in the absence of any such pleading in the plaint, Section 42(c) is not applicable. He also contends that this is a suit by the

plaintiff virtually for possession of the property now said to be in the hands of the second defendant, who is a stranger to the"" contract, under which

the plaintiff claims his right and therefore the suit ought to be valued as one by a stranger for possession and the Court-fee has to be paid on the

market value of the property.

In support of the first contention, my attention has been drawn to a decision in Panangipalli Suryanarayanacharyulu Vs. Ravi Narasimhaswamy

and Others, . That was a case in which the landlord was not a party to the suit at all and the lessee filed a suit for specific performance against

strangers who were actually in possession. While considering such circumstance, the Special Bench of our Court held that the suit in substance was

not for specific performance but one for possession against strangers to the contract. This principle is unassailable but it is not applicable to the

facts of this case. On the fair reading of the entire allegations in the plaint the plaintiff has come forward with a suit for declaration of his rental rights

which obviously means that he is suing on a contract of lease which he purports to have in his favour. In my opinion, the allegations in the pleadings

are sufficient to bring the main relief asked for by the plaintiff within the meaning of Section 42(c).

Regarding the second contention of the learned Counsel for the petitioner that Section 25(d) of the Court-fees Act has no application and that

Section 25(a) or (b) is only attracted in the instant case, also appears to be untenable. It has been repeatedly held by our Court that Sections 25(a)

or 25(b) dealt with rights in immovable property or tangible rights where substantial questions as to the title of immovable property in involved.

Section 25(d) on the other hand would apply where no investigation is necessary regarding the title of the property but the adjudication relates to

intangible rights concerning such property.

In Dr. Arthur Nathanial and Another Vs. Dr. R.P. Nathanial, , the scope of Section 25(d) has been well laid down by Mr. S. Ramachandra

Iyer, the learned Chief Justice. The following sentence in the said judgment is apposite:

It is evident that Section 25(a) of the Court-fees Act cannot apply to the case as it relates to tangible property.

Even so, Veeraswami, J., in Kulitalai Bank Ltd.v. Vedavalli Ammal (1963) 76 L.W. 28 was of opinion that in suits where relief asked for by the

plaintiffs essentially concern themselves to questions of title relating to properties, then only Section 25(d) would be attracted. I may add that the

principle which would govern and which would attract Section 25(b) is equally applicable while considering Section 25(a) as well. In this view, the

learned District Munsif has correctly appreciated the position of law and accepted the valuation as made by the plaintiff in his application for

amendment to the plaint and the State appearing through the Government Pleader has not placed before me any other decision to the contrary to

hold a different view. The Civil Revision Petition is therefore dismissed but, in the circumstances, there will be no order as to costs.