Ram Lal Sahu vs Mt. Bibi Sahra and others

Fazl Ali, J.—These two applications arise out of a suit instituted by the opposite party against the applicant with the following prayers:

(1) It be decided and declared that defendants were tenants from month to month.....

Their tenancy had been terminated since 18th Assin 1341 and the plaintiffs acquired a right to khas possession and the possession of defendants since 19th Assin 1341 was that of a trespasser.

(2) On the above findings plaintiffs may be put in khas possession of the lands by dispossessing defendant 2.....(3) If for any reason the Court thinks that plaintiffs are not entitled to the above remedy defendants may be ordered to remove the pucca roof within the time fixed by Court and also to close the window. Defendants may also be restrained from building a pucca chhal and opening a window in future.

The suit was instituted in respect of plot No. 1043 in the town of Jahanabad which the plaintiff''s predecessor in interest had admittedly settled with one Gajadhar Sahu under a registered kabuliyat but which has subsequently by various transfers passed to the petitioner. The petitioner is now building a pucca structure upon this plot and this necessitated the institution of the present suit. One of the pleas taken in defence by the petitioner was that the Munsif before whom the suit had been instituted had no jurisdiction to try it and that the suit had been undervalued. It may be stated here that the suit was valued by the plaintiff at Rs. 390, but it was pointed out by the defendant that in another suit instituted by the plaintiff in respect of the same land he had valued the land at Rs. 2,400. The Munsif after hearing the parties came to the following conclusion:

I hold that the suit is one for ejectment and is governed by S. 7(xi)(cc), Court-fees Act, while the alternative prayer is one for removal of certain structures and injunction to stop building of the same and so the value would be the value given in the plaint. The plaintiff should now value the various reliefs properly.

The only point that is pressed before me is that the matter is not governed by S. 7(11)(cc) but by S. 7(5)(e). It was contended that as on the plaintiffs allegation the tenancy had already been determined this was not a case of a tenant holding over after the determination of the tenancy. In support of this proposition reliance is placed on Govinda Ram Agarwala v. Dulu Pada Dutt 1928 Cal 753 = 116 IC 374 in which Cammiade, J., expressed the view that a person'' whose tenancy has been determined by notice does not come under the category of a tenant holding over after the determination of the tenancy within the meaning of S. 7, Cl. (11), sub-S. (cc), Court-fees Act. The learned Judge however in course of His judgment observed that it was possible that the Legislature intended "to reduce the court-fee payable in suits such as the present," hut he also remarked that the Courts could act only on the words to be found in the statute. A different view however seems to have been taken by a Division Bench of the Allahabad High Court in Mohan v. Bhuteshwar, 1925 All 142 = 83 IC 1, where it was held that when a suit is brought for possession of the leased properly on the ground that the tenancy has terminated by forfeiture the case is covered by S. 7, Cl. (11). sub-Cl. (cc). As at present adivsed I am not pre- pared to hold that the view taken by the learned Munsif is incorrect and we cannot overlook the expression "holding over after the determination of a tenancy" which is wide enough to cover a case where a tenant continues to be in occupation even though the tenancy had been determined. However that be, I do not think that I would be justified in interfering with the order of the Court below, because the long established practice of this Court is not to interfere with interlocutory orders, especially when the party who alleges to be aggrieved has an alternative remedy open to him. If the ultimate decision of the Munsif goes against the petitioner, he will in due course be entitled to prefer an appeal and he may ask the appellate Court to deal with the issue as to jurisdiction also. I would however like to make it clear that this Court will not hesitate to interfere with an interlocutory order in a proper case where it is manifest that if the order is not promptly interfered with the party affected by the order may suffer an irremediable harm. The present case however does not appear to me to be a case of that description.

I would therefore dismiss Civil Revision No. 216. As to Civil Revision No. 219, the grievance of the petitioner is that the learned Munsif allowed the plaint to be amended in certain respects without notice to him, but the order which is sought to be revised makes it clear that the defendant has been invited to file such objections as he considers proper to the new valuation. In face of this provision in the order, I do not think that a case has been made out for the interference of this Court. This application must also be dismissed, but in the circumstances of the case there will be no order for costs.