Kerala High Court · 2008

P.R.Raman &T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - -A.S. No.4 of 1998 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July, 2008.JUDGMENTRaman, J.This is an appeal by the plaintiff. The suit, O.S. No.408/1993 wasfiled for declaration, recovery of possession and for arrears of licence fee asper deed. Two rooms scheduled in A schedule belong to the plaintiff, wasallowed to be occupied by the defendant to conduct business for six months.B schedule properties are the articles used by the plaintiff while he wasconducting the business formerly. The rent fixed was Rs.30/- per day. Onexpiry of the term, the plaintiff demanded surrender of possession. Onrefusal, the suit was filed. The defendant contended in the writtenstatement that the suit is not maintainable, that the plaint allegations areuntrue, that the defendant received possession from the plaintiff on10.9.1978, that the defendant is conducting business after paying rentregularly, that the document produced is an outcome of fraud and that nocause of action.2. Three issues were framed by the court below. The first issue wasregarding as to whether there is any agreement on 1.4.1992 entrusting the AS 4/1998-2-defendant to conduct the tea shop for six months. The second issue waswhether the eviction and possession prayed for is allowable and the thirdissue was whether the plaintiff is entitled to get any amount as peragreement and if so, what is the quantum.3. The evidence consists of the oral testimony of P.Ws.1 and 2 andthe documentary evidence Exts.A1 to A3. On the side of the defendant,D.Ws.1 and 2 were examined, besides marking of Exts.B1 to B4. It isfound under issue No.1 that Ext.A1 document though not genuine, it isbrought out that the possession was given to the defendant. Thus,entrustment was found proved. On issue No.2, after a detailed analysis ofthe evidence adduced by the parties, the court below found that theentrustment is only a licence to conduct business and hence the plaintiff isentitled for an eviction as prayed for. The defendant has not filed anyappeal against the said finding and hence that finding became final.4. On issue No.3, though the court below found that the rent fixed isadmittedly Rs.30/- per day, holding that there is only the oral evidence ofP.W.1 and in view of the finding that Ext.A1 is not genuine, the said issuewas found against the plaintiff.5. Even according to the defendant, the rent is Rs.30/- per day whichwas increased from Rs.20/-. Therefore, the court below rightly found that AS 4/1998-3-admittedly Rs.30/- is the rent per day. Even though Ext.A1 is found againstthe plaintiff, in order to support the plaint allegations, the plaintiff hasexamined P.Ws.1 and 2. Once it gives that the rent fixed is Rs.30/-, then itis for the defendant to prove that there is no arrears. The court below wasnot thus right in rejecting the prayer in toto. The available evidence onrecord ought to be appreciated to enter a finding in this regard and pass adecree in case the proper court fee is paid. Hence, we set aside thejudgment of the trial court for consideration of this issue afresh.6. Regarding additional issue No.5, the plaintiff has valued theproperty at Rs.1,08,020/- for the purpose of court fee and an amount ofRs.6,407/- was paid by way of court fee. Subsequently, he sought to amendthe suit to reduce the court fee. The amendment was sought for on the basisof the municipal tax. Finding that actually the rent is Rs.30/- per day, theamendment was rejected and since balance court fee was not paid, issueNo.5 was decided against the plaintiff. 7. We have heard learned counsel for the appellant. As per Section 7(3) of the Court Fees Act, the market value of a building shall in caseswhere its rental value has been entered in the registers of any localauthority, be ten times such rental value and in other cases the actual marketvalue of the building as on the date of the plaint. Thus, if the rental value is AS 4/1998-4-entered in the registers of any local authority, then the market value has tobe calculated at 10 times such rental value as entered in the register of anylocal authority for the purpose of court fee. Only if such rental value is notregistered in the local authority's register, then the question of calculatingactual market value will arise. In this case, the plaintiff sought to amend theplaint on the ground that the market value as entered in the municipalregister is less than the value shown in the plaint. Therefore, the courtbelow ought to have considered the plea and if the market value as enteredin the register of municipal authority is proved to be less than the valueshown in the plaint, necessarily the plaintiff will have to be given the reliefof amending the plaint and paying the court fee on the market value in termsof Section 7(3) of the Court Fees Act. The view taken by the court below iscontrary to Section 7(3) of the Court Fees Act.Accordingly, we set asidethe finding on issue No.5 and direct the court below to reconsider the matterafresh.In the result, we allow the appeal by way of remand to reconsider theissue Nos.3 and 5 as indicated above. The parties shall appear before the AS 4/1998-5-court below on 11.8.2008. The court fee paid on the memorandum ofappeal shall be refunded. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.)kav/ AS 4/1998-6- P.R.Raman &T.R. Ramachandran Nair, JJ.- - - - - - - - - - - - - - - - - - - - - -A.S.No.4 of 1998- - - - - - - - - - - - - - - - - - - - - -JUDGMENT7th July, 2008.