Ranchod vs Dashrath

S.B. Sen, J.

In this revision the question involved is a simple one. A suit was brought by opponent Dashrath against the applicant Ranchod for ejectment on the basis of genuine necessity and arrears of rant. The defendant-applicant contested the suit. In addition to the other pleas he stated that he himself was the landlord. He further stated that for the house he had spent about Rs. 23765 for making improvements. He therefore claimed that if any decree for ejectment has been passed against him the possession should not be given unless the amount was paid to him by the plaintiff.

The plaintiff filed an application that the defendant be ordered to delete his claim of ownership and also his claim that the decree can be passed on condition of making payment of Rs. 23765.

After hearing the parties the Court ordered that either the defendant should strike out additional pleas in paras. 1, 2, 3 and 5 or pay court-fee on Rs. 23765 plus market value of the house before the improvements were made. Against this order the defendant has. now come up in revision stating that the Court had no jurisdiction to ask him to pay the court-fee because his is neither a counter-claim nor a set-off. Therefore the court-fee is not necessary.

The applicant relied on decision reported in State v. Narayan Prasad 1960 MPLJ 1014 : 1960 JLJ. But that decision is not applicable to the facts of this case. In that case, it was neither a case of set-off nor a case of counter-claim nor an adjustment, leave was prayed by the defendant to file a separate suit. Possibly intention to file a civil suit where court-fee would be paid weighed with the Court.

The Court has asked the defendant to pay court-fee not only on the sum he has spent on the improvements but also on the value of the house be-fore making such improvements, because he pleads that he is the owner of the, premises himself. The suit is for ejectment and arrears of rent. The defence is that be is the landlord and therefore no question of ejectment arises. He can legitimately take that defence in a suit- for ejectment. Therefore there is no question of payment of court-fee for the market value of the house.

As regards the improvements and additions and alterations in the house section 108(h) of the Transfer of Property Act says :-

The lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased bat not afterwards all things which he has attached to the earth; provided he leaves the property in the state in which he received it.

Thus lessee has right of removing the additions and alterations, if any and there, is no question of any consent of the landlord. According to the Courts Fees Act the court-fee is required to be paid on plaint, counter-claim or set-off. The defendant has neither pleaded a counter-claim nor a set-off. Therefore no question of payment of court-fees on the amount spent on improvements arises.

In Ref. under the Court-fees Act I L R 23 Mad. 84 the tenants claimed compensation for improvement made to the rented premises in a suit for ejectment. The claim was disallowed. The tenants appealed on the ground that their claim should have been allowed but only paid court fee on plaintiff''s valuation. On a reference as to whether the value of the improvements ought not to be taken in to account for the purposes of levying court-fee, their Lordships held :-

as the claim for improvements was not the subject matter of the suit, bat was merely incidental to the decree for possession and on grounds of convenience, the court-fee payable by an appellant in such a ease should be that payable in a suit for possession of land.

In Abdul Majid Vs. Abdul Rashid and Others, the plaintiff filed a suit for pre-emption. The defendants in their written statement pleaded that they had spent a certain amount in making improvements to the property and the plaintiff''s suit for pre-emption should not be decreed without making the plaintiff liable for the amount. On these facts their Lordship have held :-

that the defendant had no cause of action against the plaintiff, and no separate action could be maintained on the basis thereof. The claim could only be put forward as a defence to the suit and it could not be called a counter-claim. No court-fees were therefore payable on the written statement.

I fully agree with the view expressed in the above mentioned Madras and Allahabad cases and hold that it is not necessary for the defendant-applicant either to delete his additional pleas or to pay court-fee on a sum of Rs. 23765 plus market value of the house before improvements were made.

The result is the revision petition is allowed with costs. The order under revision is set aside and the trial Judge is directed to proceed with the case and dispose it off according to law. Counsel fee according to scale if certified.