M.N.SHUKLA, J. - (1.) THIS writ petition raises a point of Court-fee which is of considerable importance, on which there is no direct decision on all fours and in examining which reference is often made to proceeding which lay down seemingly contradictory principles of law. The point shortly stated is : "When a plaintiff asserting to be a tenant sues for possession of a shop claiming that the defendant is in its unauthorised and illegal possession as a trespasser, whether court-fee is payable under Section 7(v-B) (c) of the court-fees Act (as amended in its application to U.P.) or under Section 7(v)(ii) thereof".
(2.) WHERE learned Judge below relying on the authority of two Allahabad cases, AIR 1949 Alld. 560; Chief Inspector of Stamps v. Sewa Sunder Lal and AIR 1965 Alld 496; Kanahiya Lal and another v. Satya Narayan Pandey, held that the subject-matter of the suit being the tenancy rights with respect to a shop and not the shop itself, or which the tenancy rights was in issue, court-fee had to be determined on the value at which the defendant's right to remain in the premises might be fixed. But in my opinion those authorities are plainly distinguishable and the relief claimed in the suit would already come within Section 7 (v)(ii) of the court-fees Act. Respondent No. 3 Sheo Prasad filed suit No. 26 of 1978 in the Court of the Munsif City. Kanpur against the petitioners, Virendra Nath Aggarwal and Jitendra Nath Aggarwal and respondent No. 4. Jai Gopal for possession of Shop No. 3 in Premises No. 51/27. Naughara, Kanpur City and for damages on the allegations that the said defendants were in illegal and unauthorised possession of the disputed shop which was in the tenancy of the plaintiff and as such were liable to be evicted and also pay damages. The averments made in the plaint were that the plaintiff had been a tenant of the shop in suit by virtue of an allotment order dated 15.5.1965 and was carrying on the business of stationery therein, that defendant No. 1 Jai Gopal (respondent No. 4) fraudulenty obtained possession of the said shop in March, 1972 and sold it to defendant Nos. 2 and 3 (petitioners) hence the suit.
(3.) THE petitioners contested the suit on the ground that the allotment in favour of the plaintiff was 'Benami' and he was never a tenant of the shop nor was he in possession thereof in his own right, that the plaintiff was merely an employee of M/s. Parkash Paper mart and was paying rent on its behalf and respondent No. 4 was a partner in that business. It was further pleaded that after the cessation of his employment, the plaintiff had no legal interest left in the disputed premises that he was wrongfully trying to dispossess the defendants who carried stationery business in partnership in the aforesaid shop and the suit was maintainable. The plaintiff valued the suit on the relief for possession at Rs. 239.76 (annual rent of the shop), at Rs. 900/- for relief for damages and Rs. 25/- for pendente-lite and future damages. The defendants contested the suit and also raised the plea that the suit was undervalued and it ought to have been valued on the market value of the suit property and the court-fee paid was insufficient and on proper valuation the jurisdiction of the Munsif to try the suit would be ousted.;