Macklin, J.:—
The question at issue in this matter coming before us by way of revision is the Court fee payable in a suit for the possession of a house based upon the allegation that the defendant in possession is a licensee of the plaintiff. The trial Court, on the defendant's objection, went into the question of the Court fee and came to the conclusion that the subject matter of the suit was not the house itself but the right to eject the defendant. Suits for possession of immoveable property fall under s. 7(5) of the Court Fees Act and are valued according to the subject-matter of the suit. Taking it that the subject matter of the suit was the right to eject the defendant, the learned Judge found that the value of that right was the value at which the defendant's right to remain in the house could be valued; and looked at from that point of view be considered that the value which the plaintiff put upon his-claim, namely Rs. 5,000 odd, could be accepted even though the market value of the house itself was about four times as much. The learned Judge based his decision upon a decision of the Patna High Court in Mussammat Barkatunnisa Begum v. Mussammat Kaniza Fatma.
In this application for revision by the defendant we have come to the conclusion that the order of the trial Court cannot be supported. There can be no possible doubt about this being a suit for possession of a house within the meaning of s. 7(5) of the Court Fees Act, and the question then is the value that should be put upon the subject-matter of the suit, since under s. 7(5) it is the value of the subject matter that determines the value of the suit. The High Court of Patna relies upon a decision of the High Court of Allahabad passed in 1892, before the Court Fees Act was amended so as to make special provision for a suit by a landlord against his tenant for possession of property leased on the basis of the lease; See Ram Raj Tewari v. Girnandan Bhagat. Their Lordships agreed unhesitatingly that the case fell within s. 7(5) of the Court Fees Act, and on the analogy of this case the High Court of Patna also agreed that the case of a licensee suing for possession of immoveable property on the basis of the licence also fell under s. 7(5). In each case, as here, the real question for determination was the value of the subject matter of the suit, and that involves the determination of the subject matter itself. In the landlord and tenant suit the High Court of Allahabad held that the subject-matter could not be treated as the land itself, as the landlord had through his tenants proprietory possession and what was sought in the suit was to free the land from the possession of the tenants holding as tenants at fixed rates, that is to get rid of the tenants and their tenant-rights. Apparently there the Court thought that the subject-matter of the suit was getting rid of the tenants and their tenant-rights. In the licensee case before the Patna High Court the Court thought that the subject-matter of the suit was the right to eject the defendants and the value of that right was the value at which the defendant's right to remain in the house under the licence of the plaintiff might be valued. In neither case did the Court treat the subject-matter as being the property itself, although it was of the property itself that possession was sought. In defence of the order of the lower Court it is argued that this is the correct way to look at the question, since the subject-matter in a case of this kind ought not to be regarded as the entire house with all the rights involved therein but merely one aspect of the house. But with all respect to the learned Judges who decided the two cases cited, I think that they are entirely wrong. In plain English the subject-matter of a suit is what the suit is about. It is not the same thing as the object of the suit. The object of the suit is the claim, in other words possession of the house. The subject of the suit is the house. That this is the correct view to take is, I think, clear also from the wording of s. 7(5) itself. The section says that suits for the possession of land, houses or gardens are to be valued according to the subject-matter and the sub-section goes on to say that where the subject matter is land, the value shall be determined according to cls. (a), (b), (c) or (d) and where the subject-matter is a house or garden, the value shall be deemed to be the market value of the house or garden. In other words the section contemplates the subject matter of a suit for the possession of land as being the land and the subject matter of a suit for the possession of a garden as being the garden and the subject-matter of a suit for the possession of a house as being the house, and there is no suggestion to be derived from the section itself or, so far as I know, from anywhere else that the subject-matter ought to be taken to be anything else. I can imagine hard cases arising out of this provision; I can imagine cases where paying the Court-fee on the value of a house might in all the circumstances be an unduly heavy price to pay in the event of the suit being lost. But we cannot do anything about that. The law seems to be as I have said; and if the law is harsh, it can always be amended.
The rule is made absolute, and costs will be costs in the suit. The Court fee must be paid accordingly.
Time is given till January 13, 1947, to pay the Court-fees.
Rule made absolute.
P.A.D
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