A. Divakrupamani and Another Vs. A. Sakuntala Devi and Others - Court Judgment

Excerpt:
civil - adequacy of court fee - sections 34 (1) and 34 (2) of andhra pradesh court fees and suits valuation act, 1956 -court fee in partition suit paid on basis of alleged joint possession in plaint - defendant disputed joint possession - court cannot fix court fee on mere allegation of joint possession in plaint - held, court is empowered to look into question of adequacy of court fee at time of trial and subsequently return additional court fees if paid. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default.orderb. subhashan reddy, j.1. this appeal lias been directed against an order returning the plaint on the ground that the court fee which is payable is under section 34(1) of the a.p. court fee and suit valuation act, 1956 and not under subsection (2) thereof.2. sub-section (2) of section 34 of the a.p. court fee and suit valuation act comes into play when the parties are in joint possession and a fixed court fee is payable having regard to the valuation and the maximum being rs.200/-. but, in a matter arising under section 34(1) of the a.p. court fee and suit valuation act, 1956, which is on the premise that the plaintiff is not in possession but is seeking for decree of partition and possession, the court fee payable is according to the valuation of 3/4th of the market value of the share which the plaintiff sought for. the court of the chief judge subsequently has now called upon the plaintiffs to pay the court fee on the ground that the plaintiffs cannot be deemed to be in joint possession.3. at the inception, the trial court has to go by the recitals of the plaint and if the same is challenged by the defendants at a later point of time, the court can always frame a triable issue as to whether the suit is properly valued and whether the court fee paid is proper. even otherwise, at any stage, the court is always empowered under section 11 of the a.p. court fee and suit valuation act, if a fresh situation arises or fact is brought to its notice, to give check slip as to why proper court fee in the view of the courtshould not be paid. but, these are the stages which will arise later and suffice it to say, at this juncture the suit ought to have been numbered.4. hence, we direct the lower court to number the suit and proceed further and issue notices to the defendants.5. learned counsel for the appellants has cited a judgment of the supreme court in neelavalhi v. n. natarajan, : [1980]2scr307 , but the same cannot be considered at this juncture and the same may be projected whenever a requisition is given to the appellants to pay more court fee and if a contest is made on the valuation issue.5. the ccca is allowed in part to the extent indicated above.no costs.

Judgment:
ORDER

B. Subhashan Reddy, J.

1. This appeal lias been directed against an order returning the plaint on the ground that the Court fee which is payable is under Section 34(1) of the A.P. Court Fee and Suit Valuation Act, 1956 and not under subsection (2) thereof.

2. Sub-section (2) of Section 34 of the A.P. Court Fee and Suit Valuation Act comes into play when the parties are in joint possession and a fixed Court fee is payable having regard to the valuation and the maximum being Rs.200/-. But, in a matter arising under Section 34(1) of the A.P. Court Fee and Suit Valuation Act, 1956, which is on the premise that the plaintiff is not in possession but is seeking for decree of partition and possession, the Court fee payable is according to the valuation of 3/4th of the market value of the share which the plaintiff sought for. The Court of the Chief Judge subsequently has now called upon the plaintiffs to pay the Court fee on the ground that the plaintiffs cannot be deemed to be in joint possession.

3. At the inception, the trial Court has to go by the recitals of the plaint and if the same is challenged by the defendants at a later point of time, the Court can always frame a triable issue as to whether the suit is properly valued and whether the Court fee paid is proper. Even otherwise, at any stage, the Court is always empowered under Section 11 of the A.P. Court Fee and Suit Valuation Act, if a fresh situation arises or fact is brought to its notice, to give check slip as to why proper Court fee in the view of the Courtshould not be paid. But, these are the stages which will arise later and suffice it to say, at this juncture the suit ought to have been numbered.

4. Hence, we direct the lower Court to number the suit and proceed further and issue notices to the defendants.

5. Learned Counsel for the appellants has cited a judgment of the Supreme Court in Neelavalhi v. N. Natarajan, : [1980]2SCR307 , but the same cannot be considered at this juncture and the same may be projected whenever a requisition is given to the appellants to pay more Court fee and if a contest is made on the valuation issue.

5. The CCCA is allowed in part to the extent indicated above.

No costs.