Rajendra Kumar vs Purshottam Holani and Others

Arun Bhansali, J.—Heard learned counsel for the parties. This writ petition is directed against the order dt. 10.5.2013 passed by the trial Court, whereby the application filed by the petitioner under Order XW, Rule 5 CPC has been rejected.

The application was filed seeking framing of additional issues based on the written statements filed by the petitioner whereby the relationship of landlord and tenant was denied and it was claimed that the suit based on such relationship was not maintainable and it was required of the plaintiffs to pay Court fee for suit for possession.

The trial Court after hearing the parties came to the conclusion that the issue regarding the landlord-tenant relationship stands covered by issue No. 1 and in case, the plaintiffs failed in establishing landlord-tenant relationship, the suit would be dismissed and he is not required to pay Court fee for suit for possession.

It is submitted by learned counsel for the petitioner that specific objections were raised in the written statement regarding landlord-tenant relationship and that the valuation of the suit is improper, however, the trial Court failed to frame issues on the said aspects and therefore, when application under Order XIV, Rule 5 CPC was filed, the same was also wrongly rejected.

Learned counsel for the respondents supported the order passed by the trial Court.

I have considered the rival submissions and have gone through the record of the writ petition.

The issue No. 1 framed by the trial Court, reads as under:--

It is apparent that the issue very well encompasses the plea sought to be raised by the petitioner whereby the issue requires the determination as to the ownership of the plaintiff, tenant-landlord relationship and determination of the tenancy by way of valid notice.

The objection regarding the Court fee is wholly baseless, inasmuch as, the Court fee has to be determined based on the averments contained in the plaint only and as the averments contained in the written statement cannot form basis for determination of Court fees. Merely because the petitioner has denied the tenant-landlord relationship, the suit does not get converted into the suit for possession and therefore, it cannot be said that the plaintiff was required to pay Court fees for possession. In view of the above discussion, there is no substance in the present writ petition, the same is, therefore, dismissed.

The stay application is also dismissed.