Mohan Lal v. Bhuteshwar

Walsh, A.C.J:— There are so many points upon which it seems possible be defeat the plaintiff's attempt be dodge the previous judgment, that it is somewhat difficult be select, and personally I have abandoned the bask. I am inclined be think that if I were driven be it, I should hold that, inasmuch as the plaintiff as a matter of grace—to use his council's expression—succeeded in extracting from the Munsif a decree giving him possession of the property in a suit is which he had merely made a claim for rent, he is estopped in this Court, or any other, from saying that the Munsif was not competent to decide the question of bible in that suit, if he should come be the conclusion that there was no tenancy. If be is estopped from disputing that point, then he is in this suit raising an issue which the Court is undoubtedly competent be try, which has been in issue in a suit which the previous Court was also competent be try. But I should prefer not be express a final decision upon that point without further argument, because it is a new form of estoppel to me, and I am not satisfied that it is sound. But if the plaintiff's vakil is correct in his view that the Munsif as a matter of grace was justified in giving him a decree for possession as owner, after deciding that there was no tenancy, then it seems be me that the plaintiff brings himself within the mischief of the 2nd rule of order 2, because it is quite clear be my mind that the plaintiff knew that the Court which tried his suit, would find as a fact that there was no tenancy, and that he deliberately refrained from, and therefore within the meaning of the rule, relinquished his alternative claim for possession in the evant of the tenancy not being established and of the defendants denying his bible. This again is one of those points on which I should prefer be bear further argument before I make up my mind that it was the right point for disposing of this case. I am also satisfied that this suit is an abuse of the process of the Court within the meaning of section 153, having been deliberately chosen for the purpose of getting over the difficulty created by the judgment of the appellate Court in the first suit. It looks rather as if the plaintiff had some reason for expecting success as a matter of course in the Munsif's Court in the first suit, otherwise it is difficult be understand why he did not value the suit as he has now done, at Rs. 1,600, and bring it in the Subordinate Judge's Court. However, these observations are mere dicta, and my brother being quite satisfied that the better and safer course is to hold that this suit has been improperly valued, and ought to have been rejected on that ground, I agree with that view, and allow the appeal, reverse the decision of the lower appellate Court, and direct the plaint to be returned to the Munsif's Court with the value of Rs. 24. The appellants will have the costs in all Courts, including in this Court, fees on the higher scale.

Sulaiman, J.:— It is necessary to recite she allegations in the plaint in order to make the point clear. The plaintiff alleged that he was the owner of the house in dispute, and that the defendant No. 1 had been a tenant for about seven years. That as he did not pay rent for three years, the plaintiff instituted a suit against him for for ejectment and for arrears of rent, and in the written statement filed by the defendant to that suit, he expressly denied, the tenancy and the plaintiff's title. It was further alleged that suit was decreed by the first Court on the ground of title, though the tenancy was not proved. But on appeal, the learned Judge dismissed the suit altogether. The cause of action for the present suit is stated be the date of the written statement, in which the defendant denied the plaintiff's title. The plaintiff originally claimed a declaration that he was the owner of the house in dispute. But that relief was subsequently struck out, and a relief for recovery of possession was substituted.

2. The defendant in his written statement denied that the Court of the Subordinate Judge had jurisdiction be entertain the claim. The learned Subordinate Judge however overruled this plea. But dismissed the suit on the ground that the previous finding and decree were a bar be the present claim. When the plaintiff went up in appeal to the District Judge, the defendant filed an application stating that the suit was not cognizable by the Subordinate Judge, inasmuch as the valuation had been deliberately inflated. The learned Judge, however, has overruled this plea and allowed the appeal, decreeing the suit on the ground that there was no bar of Section 11 of the CPC.

3. I quite agree with the learned Chief Justice that this suit was apparently a dodge be get round the previous decision. In fact in paragraph 9 of the plaint, the plaintiff himself admits that he has apprehension that his rights will be prejudiced by the previous judgment, and it was to remove that cloud that he has instituted the suit.

4. I think the easiest way be dispose of this case is be direct the plaint be returned for presentation be the proper Court.

5. On the allegations in the plaint as recited, there can be no doubb that the claim was brought by the plaintiff in the capacity of a land-holder against a tenant, who having denied his title, had forfeited his lease. There can be no doubt that the allegations contained in the plaint amount be this, that there had been a forfeiture and that the lease had terminated. It is not disputed before us that the previous suit related be the whole house.

6. Under section 8 of the Suits Valuation Act, in suits other than those referred be in the Court Fees Act in section 7, paragraphs 5, 6, 9 and 10, the value as determinable for the computation of Court-fees and the value for the purposes of jurisdiction shall be the same.

7. Under section 7, clause XI, sub-clause (cc), in a suit between landlord and tenant for the recovery of immoveable property from a tenant, including a tenant holding over after the determination of a tenancy, the Court-fee has be determined according be the amount of the rent of the immoveable property be which the suit refers, payable for the year next before the date of presenting the plaint.

8. It is clear therefore that when a suit is brought for possession of leased property on the ground that the tenancy has terminated by forfeiture, the proper valuation of the suit is not the value of the immoveable property itself. But the amount of the rent payable for the year next before the date of presentation of the plaint. On the admitted facts the alleged rent payable by the defendant used be Rs. 2 per month, and therefore the rent for one year would be Rs. 24 only. The plaintiff, however, values the claim ab Rs. 1,600 which is the market prica of the entire house. I am therefore of opinion that the valuation was purposely inflated in order be provide a ground for getting round the previous decision. The suit should have been filed in the Court of the Munsif and not in that of the Subordinate Judge. I therefore agree that the plaint should be returned for presentation be the proper Court. The plaintiff will of course pay costs to the defendant in all Courts.

9. By the Court:— The order of the Court is that the appeal is allowed, the decrees of the Courts below set aside, and it is directed that the plaint be returned to the plaintiff for presentation be the proper court. The defendants will get their costs from the plaintiff in all courts, including in this Court-fees on the higher scale.

10. Appeal allowed.