Shib Kumar Das vs Sailendra Bhattacharjee

P.N. Mookerjee, J.—This is the Plaintiff''s appeal, arising out of a suit for recovery of possession from a licensee. The suit has had a chequered career and it has come up before this Court after certain interesting events.

The suit was originally filed in the Court of the learned Munsif, Sealdah, on a valuation of Rs. 48 (for ejectment of Rs. 20 and for damages or mesne profits tentatively Rs. 28)

The suit was originally decreed by the learned Munsif, who gave the Plaintiff a decree for recovery of possession and also a decree for mesne profits, amounting to Rs. 8.

From this decree, an appeal was taken by the Defendant before the learned District Judge, which was eventually heard by the learned Subordinate Judge, who, being of the opinion, on the law, as it stood at the time, that the suit being for eviction of a licensee, the proper valuation of the suit would be the market value of the disputed property and Court-fees would have to be paid ad-valorem on that valuation, made findings to that effect, and, upon the said views, while keeping the appeal pending in his file, he sent the question of valuation down to the learned Munsif for consideration on the footing of market value of the disputed property. At this investigation before the learned Munsif, the Plaintiff adduced no evidence of valuation but the learned Munsif, relying upon his (Plaintiff''s) statement or admission in the plaint that prior to the license, given to the Defendant, the disputed property was fetching a rental of Rs. 40 per month, arrived at his valuation upon that footing and valued the suit at Rs. 6,480. There was also a direction in the judgment of the learned Subordinate Judge, sending the above matter of valuation to the learned Munsif to dismiss the suit, if the Plaintiff did not comply with the learned Munsif''s order of paying Court-fees on the valuation, arrived at by him. In view of that and the Plaintiff not having complied with the learned Munsif''s direction in that behalf, the learned Munsif dismissed the Plaintiff''s suit.

A strange situation thus arose that, while the Defendant''s appeal remained pending before the learned Subordinate Judge, the Plaintiff''s suit was dismissed by the learned Munsif. This aspect of the matter was mooted, when the Defendant''s appeal was taken up for hearing, and, then, the learned Subordinate Judge, who heard the matter this time, held that the dismissal of the suit by the learned Munsif, notwithstanding the direction in that behalf by the learned Subordinate Judge, could not be sustained and the proper order, under the circumstances, would be, having regard to the Munsif''s finding on the question of valuation, which finding could not be challenged in appeal in view of Section 12(1) of the Court-fees Act, to direct a return of the plaint to the Plaintiff''s lawyer for presentation to the proper Court. In that way, the learned Subordinate Judge disposed of the appeal before him.

From this decision, the present appeal has been taken by the Plaintiff.

It has been contended before me by Mr. Mitter, appearing for the Plaintiff Appellant, that, in the instant case, he was entitled to take advantage of the intervening amendment of the relevant law as to valuation and Court-fees in the matter of eviction of a licensee. That amendment, which was introduced by West Bengal Act XVIII of 1963, the Court-fees West Bengal (Amendment Act) 1963, and amended the old Section 7 by adding a Clause VA thereto, provided under Sub-clause (b)(ii) thereof for inter alia cases of eviction of licensees, where no license fee was payable. The said amendment, however, as is clear from its wording, would not be, in any way, retrospective and would not, therefore, apply to the present suit, which had been instituted long before the said amendment came on the statute book.

Mr. Mitter then contends that, in any event, he should have been allowed to challenge the valuation, arrived at by the learned Munsif, before the lower appellate Court. There also he has one insurmountable difficulty, namely, Section 12(1) of the Court-fees Act, which, according to the decision of the Supreme Court, reported in Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another, would make, at least, the decision on the question of valuation, pure and simple, unassailable in appeal. In any event, on the materials before the Court in the instant case, nothing, indeed, could be urged against the decision of the learned Munsif on the question of valuation as, as already observed, the Plaintiff adduced no evidence on this question and there was his own admission in the plaint unexplained, which spoke of monthly rental of the disputed premises of Rs. 40 per month, prior to the granting of the present license. If the learned Munsif, in this state of things, proceeded upon that admission for the fixation of the valuation of the disputed property for purposes of this suit, he cannot be said to have erred in any manner and, accordingly, his decision on the question of valuation cannot be challenged even on the merits.

In the above view, I would dismiss this appeal, affirming the order of the learned Subordinate Judge, directing return of the plaint to the Plaintiff''s lawyer for presentation to the proper Court in accordance with law.

There will be no order for costs in this Court.