RASHIDA KHATOON Versus MAHFOOZ K. ASIF

This revision application is directed against the order dated 27th January, 1985 passed by the VII Senior Civil Judge, Karachi in Suit No. 3752 of 1982 whereby he directed the applicant/plaintiff to pay deficit court‑fee stamps on the valuation of the house in suit which is admitted to be worth Rs. 5,00,000.

1. (i) The facts briefly stated are that the applicant brought the above referred suit for possession and recovery of arrears of rent against the respondents basing her claim on the plea that the respondents Nos.2 and 3 i.e. the Province of Sind and the Director of School Education, Karachi Region are her tenants who failed to vacate the demised premises in spite of the lease having been determined by notice dated lst July, 1982 served upon them under section 106, Transfer of Property Act. The suit is based upon cause of action pleaded in paragraphs Nos. 6 and 7 which for the sake of convenience are reproduced herein under:‑

6. That the plaintiff thereafter determined the lease by notice dated 1‑7‑1982 but the defendants No.1 and 2 did not vacate the house. The notice is annexed hereto and marked 'C'.

7. That the cause of action arose to the plaintiff on or about 1‑8‑1982 when the defendants No.1 and 2 failed to deliver vacant possession of the house to the plaintiff and their possession continues even today."

(ii) The suit for the purposes of court‑fee and jurisdiction was valued at Rs.4,800 being the amount of rent of the premises in suit payable for the next year before the date of presenting the plaint, the rate of rent being Rs.400 per month. The learned trial Court treating the suit as one for recovery of possession of the house, which admittedly is valued at Rs. 5, 00, 000 held that the court‑fee shall be payable on the valuation of the house in suit as provided under section 7(v) of the Sind Amendment Act XIII of 1974 and thus directed the plaintiff/ applicant to pay deficit court‑fee within 30 days of the passing of the said order.

2. Aggrieved by the above order the plaintiff /applicant filed this application under section 115 , C . P . C .

I have heard Mr. Maroof Ali Khan, learned counsel for the plaintiff /applicant as well as Mr. Makhdoom Abdul Wali, Advocate for the respondents hos.2 and 3.

After hearing the learned Advocates for the parties 1 find that the learned Civil Judge omitted to take into consideration the provision of section 7(xi)(cc) of the Court Fees Act, the relevant portion of which is reproduced below:‑

"Section 7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:‑

(xi) between landlord and tenant: in the following suits between landlord and tenant:‑

(a) ........................................................

(b) ..............................................................

(c) .............................................................

(cc) for the recovery of immovable property from a tenant, including a tenant holding over after the determination of a tenancy.

(d)

(e)

(f) ............................................................. according to the amount of the rent of the immovable property to which the suit refers, payable for the year next before the date of presenting the plaint."

A perusal of the relevant provisions of the law reproduced above, would show that on the suit for recovery of the property from the tenants after notice to quit has been served upon them, court‑fee is to be paid according to the amount of the rent of the immovable property to which the suit refers payable for the year next before the filing the suit and not under section 7(v)(e) of their Act for the reason that the tenant does not become a trespasser. In law the relationship of landlord and tenant between the parties do not cease to exist even upon determination of the tenancy by service of notice or where the lease is for a fixed period by efflux of time.

The view taken by me as above finds support from a large number of cases, some of which are reported as Nandan Singh v. Debi Din A I R 1914 All. 282; Vithaldas v. Ghulam Ahmed and another A I K 1527 Nag. 15ti; Govinda Kumar Sur v. Mohini Mohan Sen and others A I R 1930 Cal. 42; Chhaba Ram v. Nathu Ram A I R 1941 Lan. 39; Ishardas v. Qazi Muhammad A I R 1945 Pesh. 16; Rupji Jeraj v. The Trustees of the Port of Bombay A I R 1953 Bom. 168 and Harishchandra Golcha v. Jiwai Rao Cotton Mills Ltd. A I R 1972 Madh. Pra. 150.

Instead of discussing all the above cited cases I would content myself by examining the case reported as Chhaba Ram v. Nathu Ram (ibid). The facts of the said case were that a suit for ejectment of the tenant and recovery of arrears of rent was filed against the defendant whose tenancy had been determined by serving a notice to quit. Though the suit was decreed by the trial Court the learned District Judge in appeal dismissed the same holding that the plaint was not properly stamped and that court‑fee should have been paid advalorem on the property as the suit was really against the defendant as a trespasser. The case in the circumstances came up in appeal before the High Court wherein the question for consideration raised was as to whether the plaint had been properly stamped as falling under section 7(xi)(cc). The learned High Court reversed the Judgment given by the lower appellate Court citing with approval the case of Vithaldas v. Ghulam Ahmed on the principle that even though by notice of ejectment the tenancy is determined, a tenant does not cease to be a tenant 'holding over' for the purposes of section 7(xi)(cc) of the Court Fees Act, as the cause of action accrues from the date on which the tenant refuses to quit in compliance with the notice.

3. The upshot of the above discussion is that the suit filed by the applicant was properly valued in accordance with section 7(xi)(cc) for the purposes of court‑fees and that the provisions of section 7(v)(c) are not attracted as the subject‑matter of it is not a house or garden.

4. This petition, therefore, succeeds and the impugned order is set aside. Consequently the case is remanded to the civil Court of competent to whom it would be forwarded by the District Judge, Karachi (East) for disposal according to law.

In the circumstances the parties are left to bear their own costs

A . A . Petition accepted