1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1464 OF 2010 Sunil Maniklal Sawal and others. -: VERSUS :- Girishchandra Kailashchandra Choube Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : AUGUST 26, 2010. The matter was heard finally yesterday and was adjourned to today to enable the learned Counsel for respondent to obtain instructions in the matter. Today learned Counsel states that the respondent/plaintiff is not ready to go before the Small Causes Court and he wants to contest the matter before Civil Court with Court Fee as paid at 12 times the monthly rent. In the matter I have already heard Shri B.N. Mohta, learned Counsel for petitioners and Shri N.A. 2 Vyawahare, learned Counsel for respondent. Rule is made returnable forthwith. Shri Mohta, learned Counsel has contended that the suit as filed is on the basis of title and not against a tenant or tenant holding over, therefore according to him the court fee as per the valuation of the suit property ought to have been paid and the impugned order dated 02.03.2010 passed below Exh.58 on Application under Order VI Rule 11(b) of Code of Civil Procedure is misconceived. Shri Vyawahare, learned Counsel has placed reliance upon Section 6 (xii)(d) of the Bombay Court Fees Act to urge that as the suit is by landlord and against tenant, the court fee as paid is in accordance with law. He has pointed out that the Section 111 of the Transfer of Property Act prescribes various modes of determination of tenancy and forfeiture is one of the modes and here suit has been filed after such forfeiture by landlord against his tenant. With the assistance of both the learned Counsel I have perused the relevant provision. Provision 3 of Section 6(xii)(d) of the Bombay Court Fees Act states that when suit is for recovery of immovable property from a tenant, including a tenant holding over after the determination of tenancy, the court fee has to be calculated on yearly rent of such immovable property. The provision itself therefore, contemplates a suit by landlord against a tenant. Such tenant may be holding over after determination of his tenancy. Here the facts show that on 7.12.1997 the tenancy was brought to an end and the petitioners/ defendants then challenged the very title/ ownership of respondent to the suit property. In view of that challenge on 30.12.1997, fresh notice was issued and after effecting forfeiture the suit has been filed. It is therefore, apparent that after forfeiture there is no contractual relationship of any type between the parties. The contract if any, is rendered immaterial and the respondent/plaintiff has to succeed on the basis of his title to the property. Such a suit cannot be viewed as suit between landlord and tenant. If the suit is to be viewed between landlord 4 and tenant, even after such forfeiture, it is apparent that in view of provisions of Maharashtra Rent Control Act, 1999 the suit ought to have been filed before the Small Causes Court. Even if provisions of Maharashtra Rent Control Act, 1999 are held to be not applicable the suit should have been filed before the Small Causes Court in view of provisions of Section 26 of the Provincial Small Causes Court Act. The suit could not have been filed before the Court of 4th Joint Civil Judge, Junior Division, Nagpur. At this stage the matter was adjourned yesterday to find out whether petitioner was interested in going before the Small Causes Court or then was interested in prosecuting the suit as filed. The statement made by Shri Vyawahare, learned Counsel today is already recorded above. It is apparent that as the suit is not between the landlord and tenant. Provisions of Section 6(xii)(b) of the Bombay Court Fees Act is not applicable. The petitioner is therefore right in contending that respondent/defendant has to value the suit on the basis 5 of the title and hence, the impugned order is unsustainable. Respondent / plaintiff to value his suit on the basis of title in accordance with law, within a period of four weeks from today and to pay deficit court fee, if any, within said time. If the deficit court fee is not paid, the trial Court shall proceed further in accordance with law. The impugned order passed below Exh. 54 by the 4th Joint Civil Judge, Junior Division, Nagpur dated 05.12.2009 is accordingly quashed and set aside. Writ Petition is allowed. Rule is made absolute in aforesaid terms with no order as to costs. JUDGE Rgd.