SINGHVI, J. - (1.) THIS revision petition is directed against the order dated, 15. 3. 93 passed by the Additional District Judge No. 3, Jaipur City, Jaipur, whereby he has rejected the application filed by the defendant-petitioner under Order 14 Rule 5 C. P. C. for framing of an additional issue.
(2.) IN 'brief, the facts of the case are that the plaintiff-non-petitioner has filed a suit against the defendant-petitioner for rent and ejectment. During the pendency of the suit plaintiff filed an application for leave to amend the plaint whereby she sought permission of the Court to incorporate a plea that during the pendency of the suit the defendants have made unauthorised encroachment on the part of the property belonging to her. This amendment application was allowed by the trial Court on payment of costs of Rs. 200/- Amended written statement was also filed on behalf of the defendant-petitioner. Thereafter, the trial Court framed amended issue No. 1 by its order dated 7. 10. 91 Thereafter, the defendant-petitioner moved an application dated, 15. 12. 92 under order 14 Rule 5 and prayed that five additional issues be framed on the questions on improper valuation, non-payment of proper court fees and unauthorised disconnection of the telephone facility. This application was opposed by the plaintiff-non-petitioner who pleaded that the tenant had made unauthorised encroachment. on the property of the plaintiff other than the property let out to them and it was an act of nuisance. There fore, there was no necessity of making separate valuation for the relief of possession of that part of the property nor there was any necessity of paying additional court fees. After hearing the parties, the learned trial court dismissed the application by holding that in respect of the relief of possession no separate valuation was necessary and no court fees is required to be paid. The Court noted that counsel for the plaintiff non-petitioner did not press the claim regarding rent at the rate of Rs. 400/- per month. The Court further held that para No. 9 of the plaint had been added with the permission of the Court and so far as denial of facility of telephone is concerned, the matter was beyond the scope of the suit. On that basis the trial court dismissed the application filed by the defendant-petitioners. Shri O. P. Garg, learned counsel for the petitioner was strenuously argued that the trial Court has committed a serious illegality by rejecting application filed by the petitioner under Order 14 Rule 5. Shri Garg submitted that the trial court has ignored the fact that relief of possession was added by amendment in the suit and unless the suit was properly valued in respect of the part of the property which is said to have been unauthorisedly occupied by the petitioner and appropriate court fees was paid, the suit cannot proceed in the trial. Shri Garg further argued that for relief of enhanced rent also proper court fees was to be paid by the plaintiff. He submitted that the learned trial court has failed to apply principles of law correctly while deciding application under Order 14 Rule 5 CPC. Shri Goyal, learned counsel for the non-petitioners opposed the revision petition by arguing that no jurisdictional error has been committed by the trial Court in deciding application filed by the petitioner under Order 14 Rule 5. Shri Goyal submitted that the trial court is founded on a decision of this court and such an order does not call for interference by this Court under section 115 CPC. There is no dispute between the parties that the suit filed by the plaintiff-non-petitioner is for rent and ejectment and not a suit for recovery of the property simpliciter. It is an admit ted position that amendment of the plaint has been allowed by the trial court after contest by the parties and that order of the trial court has become final. By way of amendment the plaintiff has sought relief for eviction of the defendant-petitioner from that portion of her property which has been unauthorisedly occupied by the defendant-petitioner. The main relief in the suit continues to be one for ejectment of the defendant petitioner from the suit property and the relief of possession is clearly an incidental relief. That being the position, it was not necessary for the plaintiff to change the valuation of the suit or to pay court fees in regard to this incidental relief. Learned trial court has not committed any error or illegality in taking the view that the relief of possession in respect of that portion of property which has been trespassed by the defendant petitioner is only an incidental relief. In Bhagwan Ram vs. Thakurji Hanuman Ji Maharaj (1), this Court examined a more or less identical question and observed that the suits between landlord and tenant are governed by the provision of section 41 of the Rajasthan Court Fees and Suits Valuation Act, 1961 and Sub-section (2) of that section does not require separate Court-fee on the trespassed property. The Court further held that prayer for possession of the trespassed portion is incidental to the recovery of possession of the demised property.
(3.) ON the question of payment of additional court fees on the amount of arrears of rent the trial court has taken note of the statement made by the learned counsel for the petitioner that that part of the relief is not being pressed and therefore, Shri Garg's argument that proper Court fees has not been paid is wholly without merit. Decision of this court in Harish vs. Somnath (2) is of little assistance to the case of the petitioner because that case only relates to the question of maintainability of the revision petition in respect of orders passed by the lower Court under Order 14 Rule 5. Proposition of law laid down in that case does not require any further discussion but mere maintainability of the revision petition does n|ot by itself entitle the petitioner to claim interference by this Court under Section 115 CPC. In my considered opinion, the impugned order does not suffer from any error of jurisdiction or material irregularity. That apart, this order does not result in manifest injustice. ;