ORDER
Jawad Rahim, J.
1. This revision under Section 18 of the Small Causes Courts Act, 1964, is directed against the order passed by the learned Chief Judge, Court of Small Causes, Bangalore in S.C. No. 357/2003, dated 17-12-2003, returning the plaint for presentation before the proper court on the basis that Small Causes Court had no pecuniary jurisdiction to try the suit as brought.
2. The plaintiff aggrieved by the said order is in revision. In response to the notice in this revision the respondent has entered appearance.
3. Factual matrix manifest from the records reveals;
The plaintiff filed a suit seeking for a decree to eject the defendant from the schedule premises on the plea that after marriage between him and the defendant they resided together as husband and wife in the premises No. 56, 'KRISHNA NIVAS', 5TH Cross, 12th Matn, Raghavandra Block, Srinagar, Bangalore, which property he owns. The matrimony between them was not a smooth sail and it resulted in initiation of proceedings for dissolution of marriage. The said proceedings culminated in decree of divorce dated 04-07-2000 dissolving marriage between them under the provisions of Section 23(i)(ia) of the Hindu Marriage Act, 1955, granted on 04-07-2000. After such decree was passed their marriage stands dissolved and it was impermissible for them to live together in the same premises. However, during the adjudication of divorce proceedings, the plaintiff had allowed the defendant to live in the premises, but thereafter she was required to vacate the same. Her occupation in a room, in a portion of the schedule premises, was a permissive occupation and at the most can be termed as licence. Consequent to passing of decree of divorce and resultant dissolution of marriage between them all relationship ceased to exist and he directed the defendant to quit and vacate the said room and deliver possession. She declined. It necessitated issuance of notice dated 07-08-2000, but, it was also of no avail. Thus, he instituted a suit seeking for a decree of ejectment of the defendant from the portion of the schedule premises. For the purpose of court fee and jurisdiction the suit was valued at Rs. 20,000/- and court fee was paid thereon. As the valuation of the suit was within Rs. 25,000/-, he instituted the suit in the Court of Small Causes at Bangalore.
4. The defendant after entering appearance has resisted the suit. However, she admits that she was in occupation of one room measuring 11.7 X 8.8 feet form part of premises No. 56. She also admitted that plaintiff was married to her and they resided together by virtue of matrimony. Filling of divorce proceedings in MC No. 511/97 and the decree on 04-07-2000, dissolving the marriage is also admitted by her. However, she declined to admit the claim of the plaintiff and would contend that even though marriage has been dissolved, she has right in respect of schedule premises to live therein during her lifetime. The claim put forward by her for allmony has been duty considered by the Family Court in the divorce proceedings and a sum of Rs. 1,000/- per month has been awarded as permanent allmony. Fixation of monthly maintenance allowance at Rs. 1,000/- is after considering the fact that she had security of residence in the schedule premises. But for that aspect the quantum of maintenance would have been Rs. 2,000/-. On that basis she sought dismissal of the suit.
5. The learned Judge has recorded the evidence of the plaintiff and received Ex.P1 to 6, as also the evidence of defendant received in evidence and Ex.Dl and D2. Before adjudicating the claim of the plaintiff, the learned Judge formulated following points for consideration as he felt that the question as to whether the Small Causes Court has jurisdiction to try the suit was material for determination.
1. Whether this Court has jurisdiction to try the present suit?
2. Whether the plaintiff proves that the defendant was in occupation of the schedule premises as licensee after the decree of divorce passed in MC No. 511/1997?
3. Whether the plaintiff proves that he terminated the licence and the said termination is in accordance with law?
4. Whether the plaintiff is entitled to the reliefs sought?
5. What order?
6. The learned Judge having considered the evidence of the plaintiff and the defendant has noticed that white filling the suit the plaintiff has invoked Section 29 of Karnataka Court Fees and Suits Valuation Act, 1958 (in short 'the Act') and valued the suit at Rs. 20,000/- and paid the court fee thereon. As the plaintiff himself has invoked Section 29 of the Act, the learned Judge embarked upon considering whether the portion of the premises in occupation of the defendant had a market value of Rs. 20,000/- as mentioned in the plaint or more than the that amount. In this regard, the learned Judge has referred to the provisions of Section 50 of the Act, which governs valuation for jurisdiction of the Court and to record a finding has considered evidence the plaintiff had originally filed the suit before the City Civil Court, Bangalore and after withdrawing the same has represented the suit in Court of Small Causes. On the basis of the evidence and certain admissions of the plaintiff and the defendant, the learned Judge records a finding that the value of the entire premises bearing No. 56 (of which schedule premises is a portion) constructed by the plaintiff is more than Rs. 4,50,000/- and therefore, the market value of the schedule premises, which is only a portion has to be computed at Rs. 600/- per square feet and cost of the building has to be added to it. If it is done the market value would be more than Rs. 25,000/-. Therefore, the learned Judge has recorded a finding that the value of the schedule premises being more than Rs. 25,000/- Small Causes Court had no jurisdiction and consequently returned the plaint.
7. I have heard the learned counsel for both sides in supplementation to material available in the records.
8. It was urged by the learned Counsel Sri S.S. Padmaraj, that the suit as brought by the plaintiff was for ejectment of defendant who was in permissive occupation of the portion of the schedule premises even after the marriage between them was dissolved by decree of divorce. The suit was valued for Rs. 25,000/- initially, even though the plaintiff could have valued it for less. It is his contention that even though the plaintiff had invoked provisions of Section 29 of the Act, the suit has to be valued under the provisions of Section 30 of the Act. This point was urged before the learned Judge but the learned Judge declined to entertain the said plea and proceeded to consider the suit only under the provisions of Section 29 of the Act. Further, it was pointed out that in the peculiar facts and circumstances of the case the plaintiff could not have brought this suit for possession and under any other provision of the Act as there was no jural relationship of either landlord and tenant nor the defendant was trespasser. Therefore, the suit had to be necessarily brought for ejectment on the plea that the defendant was in permissive occupation and after revocation of that permission, she had to vacate.
9. The said contention of Sri S.S. Padmaraj, are controverted by the learned Counsel appearing for the respondent. It was urged that on the own admission of the plaintiff there is no relationship of landlord and tenant between the parties and that the defendant came in possession of the schedule premises by virtue of her marriage with the plaintiff. Consequently, she acquires a right to live in the said premises. In other words, she has a life interest in the schedule premises and therefore, if at all plaintiff wants to eject her he has to file a suit for declaration of his title and also to seek delivery of possession. To do so the suit has to be necessarily valued under the provisions of Section 29 of the Act or even if the plaintiff were to ask only for possession without seeking declaration, the plaintiff has to value the suit and pay the court fee on the market value of the schedule premises as required under the provisions of Section 29 of the Act. Since the plaintiff had invoked Section 29 of the Act, the plaintiff cannot retract his steps to contend otherwise. He therefore, supports the impugned Judgment.
10. From the facts referred to supra, it is noticed that the parties do not dispute that the defendant came into schedule premises and cohabited with the plaintiff after the marriage. They lived together in matrimony, which unfortunately did not work. The fact that their marriage has been dissolved by virtue of decree of divorce dated 04-07-2000 would also show extinguishment of rights over each other.
11. For the purpose of clarity it would appropriate to refer to relevant provisions, which deals with situations, as in this case invoking relief of ejectment of occupants. The following provisions deal with varied suits where possession of immovable property is sought. Relevant provisions are; Section 24-A and D applies to the suits for declaration, possession and consequential reliefs; Section 27 applies to suits relating to trust property; Section 28 relates to suits of immovable properties under Specific Relief Act; Section 32 applies to suits relating to mortgages; Section 34 applies for dissolution of partnership and for possession of properties; Section 35 applies to suits relating to partition and possession; Section 36 applies to suits relating to joint possession; Section 37 applies to suits relating to administration of an estate; Section 40 applies to suits relating to suits of specific performance; Section 41(1)(b) applies to suits relating to between landlord and tenant; Section 41(2) and Section 42 applies to suits relating to pre-empty; Section 44 applies to suits relating to public matters. If suit does not fall in any one of those categories then the court fee liable to be paid is in accordance with the provisions of Section 29. Section 29 reads thus;
SUITS FOR POSSESSION NOT OTHERWISE PROVIDED FOR.- In a suit for possession of immovable property not otherwise provided for, fee shall be computed on the market value of the property or on rupees one thousand, whichever is higher.
If in a suit relief sought is covered under provisions of Easement Act, then necessarily only provision of Section 30 applies.
12. In the instant case, white the plaintiff contends that the defendant is in permissive occupation or at most as a licencee, the defendant asserts that she has life interest by virtue of marriage with him even though the said marriage is dissolved by decree of divorce. Therefore, the first question that arose for determination in the suit has to be considered. Since, there is no jural relationship of landlord and tenant between the plaintiff and defendant, the provisions with regard to ejectment of tenant as is provided under the provisions of Section 41(1)(d) does not arise. Likewise, it is not a suit where the defendant has set up title adverse to plaintiff. All that she seeks to contend is that she has the life interest by virtue of her marriage with the plaintiff. Whether such a plea is tenable on the basis of the facts pleaded and evidence on record has to be examined.
13. Licence is defined under the provisions of Section 52 of the Indian Easement Act, the provisions reads thus:
LICENCE' DEFNIED.- Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.
14. Thus, undisputed fact establishes that the possession of the defendant in respect of schedule property is only as a licencee and nothing more. Her occupation is co-related to the nuptial knot that was tied with the petitioner and which knot was unfortunately snapped with dissolution of marriage. Therefore, her status would not be better than of a licencee. The plaintiff is therefore, a licensor and the possession is corpus of the schedule property continuous to be with the licensor, which right is not inhibited by physical occupation by the defendant -licencee. She acquires no right or interest in the corpus, ie., schedule property in her occupation. In such situation suit could only be brought to enforce the revocation of licence and for that purpose necessarily the Court fee has to be paid only in accordance with law governing relief relating to grant or revocation of licence. Section 30 of the Act adumbrates with clarity that the suit relating to easements are to be valued as per the said provisions. Section 30, reads thus:
SUITS RELATING TO EASEMENTS.- In a suit relating to an easement, whether by the dominant or the servient owner, fee shall be computed on the amount at which the relief sought is valued in the plaint, which amount shall in no case be less than rupees one thousand:
Provided that, where compensation is claimed besides other relief relating to such easement, fee shall be paid on the amount claimed as compensation in addition to the fee payable on such other relief.
15. No doubt, that the vinculum juries, that exits between the Plaintiff and defendant is licensor and licencee and as such the relationship is clearly governed under Section 52 of the Indian Easements Act, 1882, the suit has to be treated as a suit relating to easements. Therefore, for the purpose of court fee and jurisdiction the suit has to be valued and fee shall be computed on the amount at which the relief sought is valued in the plaint, which amount could not be less than Rs. 1,000/-. In the instant case, the Plaintiff had no doubt invoked Section 29 of the Act and valued the suit for Rs. 25,000/- and paid court fee thereon, yet the specific provision under Section 30 would be the correct provision under which the court fee has to be paid. Under Section 30 the fee shall be computed on the amount at which the relief sought is valued in the plaint and not on the market value of the property. Hence, valuation of the relief as shown in the plaint is the criteria on which fee shall be paid with only the condition that in no case it shall be less than Rs. 1,000/-. The plaintiff has paid the court fee on a sum of Rs. 25,000/-
16. The Plaintiff has paid the court fee on a sum of Rs. 25,000/- and this meets the requirement. The learned trial Judge has not bestowed his attention to this aspect but has considered the objections raised by the defendant regarding payment of court fee referred to under Section 29 of the Act. At Bar it was contended by the learned Counsel Sri S.S. Padmaraj, that plaintiff had brought to the notice of the Court about the provisions of Section 30 and had reiterated that the court fee paid is correct. This did not find favour with the learned trial judge, as the learned trial judge was of the opinion that fee has to be paid on the market value of the property
17. It is obvious that the relevant aspect that are required to be taken into consideration are the pleading of the parties and nature of relief sought. It should have been taken into consideration for deciding the question of court fee as also the jurisdiction. I am, therefore, satisfied that the case on hand is a suit relating to easements and the fee is to be computed only on the amount which the relief is sought and not on the market value of the property in question. Admittedly, the Court of Small Causes has pecuniary jurisdiction up to Rs. 25,000/-. The suit has been valued for Rs. 25,000/- and the Court of Small Causes has pecuniary jurisdiction.
18. Secondly, the question is also as to whether the Court of Small Causes has jurisdiction to grant relief as sought for: In this behalf it is necessary to refer to provisions of Section 8 of the Karnataka Small Causes Courts Act, 1964, which reads thus:
COGNIZANCE OP SUITS BY COURTS OF SMALL CAUSES.- (1) A Court of Small Causes shall not take cognizance of the suits specified in the Schedule as suits excepted from the cognizance of a Court of Small Causes.
(2) Subject to the exceptions specified in the Schedule and to the provisions of any law for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes:
Provided that the State Government, in consultation with the High Court, may by notification, direct that all suits of which the value does not exceed twenty five thousand rupees shall be cognizable by a Court of Small Causes mentioned in the notification.
The Schedule to the Small Causes Courts Act, which has been referred to under Section 8 describes suits excepted from the cognizance of the Court of Small Causes. Item No. 4(a), (b) and (c) are relevant for our purpose, which reads thus:
(4) a suit for the possession of immovable property or for the recovery of an interest in such property but not including a suit for ejectment where,-
(a) the property has been let under a lease or permitted to be occupied, by a written instrument or orally, and
(b) the Court of Small Causes would be competent to take cognizance of a suit for the rent of the property, and
(c) the only substantial issue arising for the decision is as to whether the lease has been determined by efflux of the time limited thereby or has been determined by a notice in accordance with the law for the time being in force in respect of such lease, or the permission to occupy has been withdrawn;
The provisions of Section 8 and the Schedule to the Act has to be read together. It is very dear from the provisions of Sub-section (1) of Section 8 and Item 4 in the Schedule that the suit for possession of immovable property or for recovery of an interest in such property are excepted from the jurisdiction of the Small Causes Courts, but not the suits seeking for ejectment of the categories described in Item 4(a), (b) and (c). Provisions of item 4(c) of the Schedule is relevant in this case, which reads thus: 'the only substantial issue arising for the decision is as to whether the lease has been determined by efflux of the time limited thereby or has been determined by a notice in accordance with the law for the time being in force in respect of such lease, or the permission to occupy has been withdrawn. The words 'or the permission to occupy has been withdrawn' appearing in item 4(c) of the Schedule makes it manifestly dear that in a suit where the ejectment of defendant is sought only on the ground that 'the permission to occupy is withdrawn' and no other issue arises for determination as mentioned in item 4, the jurisdiction of Small Causes Court is not ousted. Besides, Sub-section (2) of Section 8 further clarifies the position as 'Subject to the exceptions specified in the Schedule and to the provisions of any law for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes.
19. Keeping in mind these provisions it is noticed that in the instant case the Plaintiff has come up with specific plea that he has withdrawn the permission granted to the defendant to be in occupation of the schedule premises / or that he has revoked the licence. In such a suit no issue arises for determination either relating to title or interest of the plaintiff or defendant in respect of the immovable property in question. Thus the suit is the suit simplicitor for ejectment of the occupant on revocation of licence and therefore, the Small Causes Court has the jurisdiction to grant relief sought for.
20. In this view of the matter, the Small Causes Court has jurisdiction to grant relief sought for by the plaintiff. The learned trial judge has not considered this aspect. In the result, I am satisfied that the order impugned cannot be sustainable and needs to be interfered with.
21. Accordingly, revision stands allowed. The impugned order dated 17-12-2003 in S.C. No. 357/2003 is hereby set aside. As the learned trial judge has not recorded any finding though parties have lead evidence, the matter needs to be remanded for disposal on merits and in accordance with law.