JUDGMENT Arun Tandon, J.
1. Heard Sri Ravi Kiran Jain, senior advocate, assisted by Sri Pushkar Mehrotra, advocate, on behalf of the petitioners and Sri Mahendra Bahadur on behalf of respondent Nos. 3 to 7.
2. Haji Riazul Hasan who is plaintiff in Original Suit No. 117 of 1981 has filed this writ petition against the order of the Additional District Judge, Saharanpur dated 4.11.1985 passed in Civil Revision No. 595 of 1983 arising out of an order passed by VIIth Additional Munsif, Saharanpur dated 3.3.1983. By means of order dated 4.11.1985 the learned Additional District Judge has allowed the revision filed by the Union of India (being Civil Revision No. 595 of 1983) while the revision filed by the plaintiff (being Civil Revision No. 603 of 1983) has been dismissed with a further direction that the matter is being remanded to the trial court for determining the valuation afresh in accordance with law and in the light of the observations made in the body of the judgment. From the judgment of the Additional District Judge it is clear that he has directed that the valuation of the suit be determined with reference to the market value of the property which is the subject-matter of dispute.
3. On behalf of the petitioners it is contended that the suit as filed was for possession of the immoveable property which was in the tenancy of the defendants on a rent of Rs. 14 and 4 Annas yearly. The reliefs prayed for in the said suit are as follows :
¼v½ fMxzh fnyk ikus n[ky Åij tk;nkn futk;h eqQjlyk tSy ftldh uD'kk utjh equlykdk vjth nkok esa cgjQ ,- ch- lh-
Mh- ls tkfgj fd;k tkrk gS cgd oknh cf[kykQ izfroknhx.k lkfnj Qjek;h tkos A ¼c½ fMxzh gqde bErukbZ nekeh ckcr tk;nkn utkbZ cgd oknh cf[kykQ izfroknhx.k bl etdwu ls lkfnj QjekbZ tkos fd izfroknhx.k vkjkth futk;h etdwj ij fdlh fdLe dh rkehjkr ctkr [kqn ;k ctfj;s nhxj ,stsUlh Mk;jsDVyh ;k buMk;jsDVyh u djsa vkSj u djkosa rFkk LVsVl dks dk;e j[ks A ¼l½ fMxzh fnyk ikus eqvkotk bLrseky vt ;kse btjk;s ukfy'k rk ;kSe n[ky cfglkc 100 :i;k lkykuk Qh lkS eqjCck xt tehu tks fd vkjkth futk;h eqvkotk bLrseky cfglkc etdwj 9]600 :i;k lkykuk gksrk gS cgd oknh cf[kykQ izfroknhx.k lkfnj Qjek;h tkos ftldk dksVZQhl clh o btjk;s vnk fd;k tk;sxk A
4. In view of the aforesaid it is contended that tinder the provisions of Section 7(xi)(cc) of the Court Fees Act, 1870 (hereinafter referred to as the Act) the court fee payable is determined according to the amount of rent of the immovable property to which the suit refers, payable for the year next before the date of presenting the plaint, and not in accordance with Section 7(v) of the said Act on the value of the property involved. Section 7, Sub-clause (v) and Section 7, Sub-clause (xi) (cc) of the Act read as follows :
"7. Computation of fees payable in certain suits.--The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :
(i) to (iv) ...............................................................................................
(v) In suits for the possession of lands, houses and gardens--according to the value of the subject-matter ; and such value shall be deemed to be--where the subject-matter is land.
(vi) to (x) ..................................
(xi) In the following suits between landlord and tenant :
(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 rent of the immovable property to which the suit refers, payable, for the year next before the date of presenting the plaint."
5. Section 7(xi)(cc) provides that Court fee in a suit shall be payable according to the rent of the immovable property to which the suit refers, payable for the year next before the date of presentation of the plaint. According to the petitioners sub-clause (cc) of Section 7(xi) is applicable for recovery of possession from the tenant in both the cases, (a) when the tenancy has been determined, and (b) when the tenancy has not been determined, and the valuation of the suit for the purposes of Court fee would be determined according to the rent of the property to which the suit refers payable for the year next before the date of presenting the plaint.
6. In the opinion of the Court the contention so raised is not borne out from the reading of Section 7(xi)(cc) referred to above. The said sub-section applies only to the case of recovery of immovable property from a tenant, including a tenant holding over after the determination of a tenancy.
7. Determination of tenancy of a tenant from whom possession is prayed for in the plaint is a condition precedent for applicability of Section 7(xi)(cc) of the Act. In absence of determination of the tenancy of the tenant if possession is prayed for by the owner or by the landlord in a suit, the amount of Court fee payable under the Act would be as per the provisions of Section 7(v) i.e. according to the value of the subject-matter. To be specific even in the suits filed for possession of the land/house/garden where there is existing tenant the court fee payable would depend upon the valuation of the subject-matter unless and until the tenancy of the tenant has been determined and thereafter possession is prayed for. In such a case the court fees payable would be determined with reference to Section 7(vi)(cc) of the Act on the basis of the amount of rent of the immoveable property to which the suit refers, payable, for the year next before the date of presenting the plaint. In the facts of the present case it is apparently clear that the plaintiff has not alleged determination of the tenancy of the defendant-tenant and has simply prayed for possession of the property without such determination. In such circumstances the Court fees payable in respect of the subject-matter of the suit would be determined with reference to Section 7(v) of the Act.
8. In view of the aforesaid the order passed by the learned Additional District Judge, Saharanpur cannot be said to be illegal and does not call for any interference by this Court.
9. The writ petition is dismissed. However, having regard to the fact that the suit is pending adjudication since 1981 and more than 23 years have elapsed it would be fair and just that the suit be decided strictly in accordance with law within 6 months from the date a copy of this order is produced before the trial court.