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Cites 5 docs
Section 6 in The Specific Relief Act, 1963
Section 7 in The Specific Relief Act, 1963
Article 65 in The Constitution Of India 1949
The Limitation Act, 1963
Article 64 in The Constitution Of India 1949
Citedby 1 docs
Ganji Chandraiah vs F.E. Dinshaw (P) Ltd., Bombay on 16 November, 1999

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Calcutta High Court
Chandra Bhan Prasad And Ors. vs Mohanlal on 24 November, 1986
Equivalent citations: AIR 1987 Cal 322
Author: S Bhattacharyya
Bench: S Bhattacharyya

ORDER Sankar Bhattacharyya, J.

1. This Revisional application is directed against the findings of the learned Munsif, 1st Court, Asansol, on issues Nos. 1, 3 and 4 in Title Suit No. 287 of 1978 of this Court. It arises thus :

2. The Opposite Party was a tenant in respect of the suit premises under the petitioners at a monthly rental of Rs, 75/-. Alleging illegal dispossession from the premises by the petitioners sometime in January, 1975, the Opposite Party brought the suit for recovery of possession.

3. The defence, inter alia, was that the suit is not maintainable, that it is barred by limitation and that the court-fees paid are insufficient.

4. The learned Munsif framed issues Nos. 1, 3 and 4 regarding maintainability, limitation and court-fees respectively. The issues were heard preliminarily and by Order No. 72 dated June 27, 1983 all of them were answered in favour of the Opposite Party. This order of the learned Munsif is under challenge in this Revisional application.

5. On the point of maintainability (Issue No. 1) Mr. Roy, the learned Counsel for the petitioners, has made a twofold submission. The first is that the person who was inducted as a tenant of the suit premises after opposite party's dispossession has not been impleaded in the action and the next is that although the opposite party is still claiming to be a tenant of the suit premises, he has neither paid rent after his dispossession nor raised the plea of suspension of rent on the ground of dispossession. According to Mr. Roy the suit is, therefore, incompetent.

6. The first ground urged by Mr. Roy relates to non-joinder of parties. If the trial Court finds that the subsequent tenant is a necessary party, it has the power to add him as a party. In any event, the suit cannot be said to be incompetent for non-joinder of the subsequent tenant. The next ground also appears to be without merits. As there was total dispossession of the opposite party from the suit premises the question of payment of rent, alternatively, the plea of suspension of rent during the period of dispossession can hardly arise. The learned Munsif, therefore, rightly held that the suit, as constituted, is maintainable in law.

7. As regards issue No. 3 which is on the point of limitation, Mr. Roy vehemently argues that the suit falls under Section 6 of the Specific Relief Act which provides for a period of limitation of six months from the date of dispossession. According to Mr. Roy, since in the instant case the dispossession took place in January, 1975 and the suit was instituted in November, 1978 it is hopelessly time barred. Section 6 of the Specific Relief Act deals with suits based on possession. It has no application to a suit based on title as would appear from Sub-section (4) of Section 6 which runs as under :

"(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof."

8. It will be thus seen that the person dispossessed may bring a suit under Section 6 of the Specific Relief Act for recovery of possession irrespective of whether he has any title to the suit property or not where, however, the person dispossessed has title to the property, he has the option to bring a suit either under Section 6 of the Specific Relief Act or under the general law, based on title- Such a suit, clearly, is outside the purview of Section 6 of the Specific Relief Act.

9. Here, the opposite party brought the suit on the basis of his title as a tenant he has to establish his title to the suit premises. Therefore, the period of limitation for the suit will be the period prescribed by Article 65 of the Limitation Act and not by Article 64 as wrongly held by the learned Munsif. The period of limitation prescribed by Article 65 is 12 years from the date when the possession of the defendant became adverse to the plaintiff. Since the dispossession took place in January, 1975 and the suit was instituted in November, 1975 it is well within time and cannot be time-barred.

10. Issue No. 4 relates to sufficiency of court-fees which was decided by the learned Munsif in favour of the Opposite Party.

11. According to the learned Munsif, Section 7(xiii)(f) deals with suits between landlord and tenant of the categories enumerated in Clauses (a) to (f) therein. Clause (f) relates to a suit by the tenant to recover the occupancy of immovable property from which he has been illegally ejected by the landlord. For such suit court-fee is payable 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. The monthly rental as pointed out already, was Rs. 75/- and court-fees were paid on Rs. 900/- (Rs. 75/- x 12) which, according to the learned Munsif, was quite sufficient.

12. According to Mr. Roy, however, ad valorem court-fee on the value of the suit property is payable under Section 7(v) of the Act. This contention cannot be accepted because Clause (xiii) of Section 7 makes special provision for payment of Court-fees in a suit between landlord and tenant. Where a special provision has been made by the Act for such suits, the general provision of Section 7(v) cannot be attracted.

13. That apart, in Rathnavarmaraja v. Vimla the Supreme Court held as follows :

"Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. The jurisdiction in revision exercised by the High Court under Section 115 of the Code of Civil Procedure is strictly conditioned by Clauses (a) to (c) thereof. The defendant who may believe, and even honestly, that proper court-fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against adjudicating payment of court-fees payable on the plaint."

14. In view of the above decision, the finding of the learned Munsif on Issue No. 4 cannot be interfered with in Revision.

15. For the foregoing reasons, there appears to be no ground for interference with the findings of the learned Munsif on Issues Nos. 1, 3 and 4.

16. In the result, the Rule is discharged. There will be no order as to costs.

17. Let the records be sent down immediately.