THE HON'BLE SRI JUSTICE S. RAVI KUMAR SECOND APPEAL No.361 of 2007 Date:07.11.2014 Between:
Majeed Kirana & General Stores, Represented by it Proprietor ABU Salam Mohammed Shafeeq-Ur-Rahman Son of Mohammed farooq Ali aged about 30 years occupation business in Unit No.19-5-15/A Mulgi No.3, Bahadurpura, Hyderabad.
. Appellant.
AND P. Anjaiah (died per L.Rs.) P. Narasamma wife of late P. Anjaiah And others.
. Respondents.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR SECOND APPEAL No.361 of 2007 ORDER:
This appeal is preferred against judgment and decree dated 31- 01-2007 in A.S.No.113/2005 on the file of XII Additional Chief Judge (FTC), City Civil Court, Hyderabad whereunder judgment dated 27- 10-2004 in O.S.No.7124/2001 on the file of II Additional Rent Controller-cum-XIV Junior Civil Judge, Hyderabad was reversed.
2. The appellant herein is defendant and the respondents herein are plaintiffs in the suit and they are hereinafter referred to as plaintiffs and the defendant for convenience and better understanding.
3. Sole plaintiff filed O.S.No.7124/2001 for the relief of eviction and delivery of vacant possession and recovery of arrears of rents and also for future mesne profits and the said suit was dismissed. As the sole plaintiff died after disposal of suit, his L.Rs preferred appeal and the appellate Court reversed the judgment of the trial Court ordered eviction of the defendant, but in respect of future profits, liberty was given to the plaintiffs to file a separate petition under Order XX Rule XII CPC and granted two months time to vacate the premises. Aggrieved by the judgment of the appellate Court, present second appeal is preferred and the question of law raised in the second appeal are; firstly that the Civil Court has no jurisdiction in view of the amended Rent Control Legislation, secondly that the Court Fee paid is in correct.
4. Heard both sides.
5. Advocate for appellant mainly contended that the suit premises was taken on lease by the defendant under a rental agreement dated 01-02-1999 on a monthly rent of Rs.1,000/- for a period of 11 months and as per the terms of the agreement, rent is to be increased by 5% on every renewal, accordingly Rs.1,000/- was increased to Rs.1,050/- and at the time of 3rd year after completion of 11 months period. At the time of agreement, an advance of Rs.35,000/- was paid. After completion of 2nd 11 months period, the defendant paid another sum of Rs.30,000/- towards advance and it was agreed between the parties to reduce the rent again to Rs.1,000/- and accordingly, the tenant paid the rent, but the landlord refused to receive the same, therefore, there is no default on the part of the defendant. He further contended that since the rent as on the date of filing of the suit was only Rs.1,000/- per month, therefore, Civil Court has no jurisdiction and the eviction petition has to be filed before the Rent Controller. He further submitted that as per Section 40 (2) of the Court Fees and Suits Valuation Act, 1956, plaintiff has to pay Court Fee on the advance amount of Rs.65,000/- also, but he has not paid the Court Fee on the premium and he only paid Court Fee on annual rental basis, therefore, the suit with the Court Fee paid is not maintainable.
He submitted that this Court Fee objection was not taken before the trial Court and the appellate Court and the defendant could notice only at the time of second appeal and its being a legal point, it can be raised at any point of time.
6. On the other hand, learned counsel for the plaintiffs submitted that though defendant contended that there is an agreement at the time of third renewal to reduce the rent from Rs.1,050/- to Rs.1,000/-, there is no material to support the said contention. He submitted that the evidence on record would clinchingly show that the parties have agreed for the terms that was incorporated in the agreement marked as Ex.A1, according to which, the rent for the third renewal period was Rs.1,100/- per month, therefore, the amended legislation of the Rent Control Act has no application and the appellate Court rightly discarded this objection. He submitted that from the evidence, it is clear that only Rs.35,000/- was paid as advance under Ex.A1 and there was no subsequent payment as advance and therefore, the objection of the defendant is not tenable. He further submitted that even if there is any wrong calculation of Court Fee, the suit cannot be dismissed on that ground and the Court has to direct the plaintiff to pay the deficit Court Fee and only on such payment, decree can be executed. He contended for non-payment of Court Fee on wrong calculation, the entire suit of the plaintiff cannot be dismissed. He further submitted that learned appellate Judge has thoroughly examined the evidence on record and came to a right conclusion and that there are no grounds to interfere with the findings of the appellate Court.
7. Now the two points touching the question of law that arises for my consideration in this appeal are:
1. Whether the Civil Court has no jurisdiction to entertain the lis between the plaintiffs and defendant and
2. Whether the Court Fee paid is incorrect?
8 . Point No.1:- The undisputed facts are that plaintiff is owner of mulgi bearing No.19-5-15-A, situated at Bahdurpura, Hyderabad and the same was leased out to defendant as per Ex.A1-agreement for a period of 11 months. The lease in terms of Ex.A1 was commenced on 01-02-1999 and as per the agreement, the rent from 01-02-1999 to 31-01-2000 was Rs.1,000/- and rent from 01-02-2000 to 31-01- 2001 was Rs.1,050/- and from Rs.01-02-2001 to 31-01-2002 was Rs.1100/-. It is also admitted fact that a sum of Rs.35,000/- was paid as advance at the time of commencement of tenancy, which is refundable at the time of vacating the premises. It is also admitted fact that the tenancy continued without any dispute till the end of second renewal period i.e., up to 31-01-2001.
9. According to defendant, at the time of third renewal, plaintiff insisted for further deposit of Rs.30,000/- and as per the negotiations taken in the presence of elders, both parties agreed that the rent for the third year i.e., commencing from 01-02-2001 has to be reduced back to Rs.1,000/- per month as the defendant agreed to pay another Rs.30,000/- towards advance. Plaintiffs disputed this arrangement and even according to defendant, this arrangement was only oral and there was no written agreement. As the burden is on the defendant to prove this arrangement, he examined himself as D.W.1 and examined one Sayed Shujat as D.W.2. Admittedly, tenancy commenced under Ex.A1-agreement and the period of tenancy as per Ex.A1 is for 11 months. There is a clause in this Ex.A1, which provide continuation of tenancy, if the tenant pays the rent at the rate of 5% enhancement every year. As already referred above, the third year tenancy commences from 01-02-2001, if the arrangement pleaded by defendant is correct, the rent for the third renewal period from 01-2-2001 shall be Rs.1,000/- per month and whether this arrangement was acted upon or not can be determined from oral evidence only, because there is no written document for this alleged arrangement. D.W.1 as defendant deposed about his plea in his chief- examination. In the cross-examination, he admitted that initially the rent was Rs.1,000/- per month later it was enhanced to Rs.1,050/- and lastly it was enhanced to Rs.1,100/- from January 2001. He also admitted that he paid rents at the rate of Rs.1,100/- from March, 2001 to September-2001. So this admission of D.W.1 falsifies his contention that at the time of third year renewal, there was an arrangement and in that arrangement, plaintiff agreed to reduce the rent from Rs.1,100/- to Rs.1,000/- and received Rs.30,000/- as further advance. If really, the arrangement as pleaded by defendant is correct and acted upon, there was no occasion for the defendant to pay rent at the rate of Rs.1,100/- from March 2001 to September 2001. According to D.W.2, this arrangement was on 10th September 2001, whereas the specific plea of the defendant in the written statement is on the demand of the plaintiff further deposit of Rs.30,000/- was paid at the time of talks of third renewal from 01-02- 2001 to 31-01-2002 even defendant as D.W.1 in his chief affidavit reiterated the same. D.W.2, in his cross-examination, stated that Rs.30,000/- was paid to the plaintiff on 30-12-2001, which is contrary to his chief-examination. He again stated that he do not remember the date of payment of this advance amount of Rs.30,000/-. So considering this inconsistent evidence of D.W.2, the learned appellate Judge held that defendant failed to prove the alleged arrangement and also payment of further advance of Rs.30,000/- at the time of third year renewal and disbelieved the version of defendant. On appreciation of evidence, the factual finding arrived by the appellate Court is that except the terms incorporated in Ex.A1, there is no further arrangement and therefore, the rent payable by the defendant at the time of quit notice was Rs.1,100/- per month and therefore, the Civil Court has got jurisdiction. The contention of defendant is that as the rent was Rs.1,000/- as on the date of quit notice, the plaintiff has to approach Rent Controller and not the Civil Court. But when the evidence on record would disclose that the rent was Rs.1,100/- on the date of quit notice, the objection with regard to jurisdiction is not at all tenable. The learned appellate Judge has elaborately discussed the evidence and he has not committed any error, while appreciating the evidence on record and there are no incorrect findings in the judgment of the appellate Court. On a scrutiny of the material and examination of oral and documentary evidence, I have no hesitation in holding that learned appellate Judge rightly disbelieved the version of defendant and correctly held that rent was Rs.1,100/- per month as on the date of quit notice and therefore, Civil Court has got jurisdiction.
10. For these reasons, the objection of the defendant with regard to jurisdiction is not at all tenable and the Civil Court has got jurisdiction and the point is accordingly held against the defendant.
11. Point No.2:- Now coming to point No.2, according to defendant, the Court Fee paid is not correct as the plaintiff has not paid the Court Fee on the advance amount received by him. Admittedly, plaintiff received Rs.35,000/- as advance at the time of commencement of lease under Ex.A1. Though defendant contended that he also paid Rs.30,000/- as further advance, the same could not be established, therefore, the fact remains that there is an advance of Rs.35,000/- belonging to the defendant with the plaintiff. Now it has to be seen whether the Court Fee has to be paid on this advance amount also. It will be useful to refer Section 40 (2) of the Andhra Pradesh Court-fees and Suit Valuation Act 1956, which reads as follows:-
“40. Suits between landlord and tenant-
(2) In a suit for recovery of immovable property from a tenant including a tenant holding over, fee shall be computed on the premium, if any, and on the rent payable for the year next before the date of presenting the plaint.
Explanation: Rent includes also damages for use and occupation payable by a tenant holding over.
12. From a reading of the above provision, it is clear that Court Fee has to be paid also on the advance amount. Admittedly, plaintiff paid Court Fee only on the yearly rental value and not paid on the advance amount of Rs.35,000/-. Now the objection of the defendant is that since the Court Fee paid is incorrect the suit has to be dismissed. But as rightly pointed out by Advocate for plaintiff, the suit of the plaintiff cannot be dismissed for the Court Fee paid on wrong calculation. Admittedly, this objection was not raised by the defendant even before the trial Court or before the appellate Court and it is only raised for the first time at the time of second appeal. So also the trial Court and the appellate Court have not noticed this aspect in fact, it is for the Court, which registered the plaint has to verify this aspect, but the trial Court has not noticed this aspect and suit was registered accepting the calculation made by the plaintiff with regard to payment of Court Fee. Both parties proceeded with trial and also proceeded before the appellate Court thinking that the Court Fee paid is correct, therefore, the suit cannot be thrown out on the ground of deficit Court Fee. As rightly pointed out by Advocate for plaintiff now the plaintiff has to be directed to pay the deficit Court Fee and on payment of the deficit Court Fee only, he can execute the decree passed in his favour. There is a practice of Court Fee Examiners inspecting the subordinate Courts and they even verify some disposed of cases and if they notice any wrong collection of Court Fee, they would report back and on such report, Courts would be issuing check slips to the parties concerned and there are cases where, Court Fee is also collected, after hearing the objections on the check slips. So in that way deficit Court Fee, which was not collected due to wrong calculation can be collected subsequently, and it can be termed as only an irregularity, but not as an illegality, therefore, the objection of the defendant with regard to Court Fee is sustained and the Court below shall collect the deficit Court Fee from the plaintiff and only on payment of deficit Court Fee and the decree granted in favour of plaintiff is to be calculated.
13. In view of my findings and observations on Point Nos. 1 & 2, the second appeal is dismissed as devoid of merits confirming the judgment and decree of the appellate Court.
14. Appellant is granted two months time to vacate and deliver possession to plaintiffs.
15. As a sequel, miscellaneous petitions, if any, pending in this Second Appeal, shall stand dismissed.
JUSTICE S. RAVI KUMAR
Date:07.11.2014 mrb