IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 AS.No. 4 of 1998() ------------------ OS.408/1993 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT: ----------- MALAKKAL CHATHUKUTTY, S/O. PERACHAKUTTY, RESIDING IN KACHERI AMSOM AND DESOMOF KOZHIKODE TALUK, (DIED. L.R. IMPLEADED) SUPPL. APPELLANT: M. RADHAKRISHNAN, S/O. LATE CHATHUKUTTY, DO. DO. BY ADV. SRI.T.SETHUMADHAVAN RESPONDENTS: ------------- KUNNATH THAZHATH VIJAYAN, S/O. CHOYIKUTTY, RESIDING IN VALAYANAD AMSOM & DESOM, KOZHIKODE TALUK, DOING BUSINESS AT EAST HILL, KACHERI AMSOM AND DESOM, BY GOVERNMENT PLEADER THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - A.S. No.4 of 1998 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July, 2008. JUDGMENT Raman, J. This is an appeal by the plaintiff. The suit, O.S. No.408/1993 was filed for declaration, recovery of possession and for arrears of licence fee as per deed. Two rooms scheduled in A schedule belong to the plaintiff, was allowed to be occupied by the defendant to conduct business for six months. B schedule properties are the articles used by the plaintiff while he was conducting the business formerly. The rent fixed was Rs.30/- per day. On expiry of the term, the plaintiff demanded surrender of possession. On refusal, the suit was filed. The defendant contended in the written statement that the suit is not maintainable, that the plaint allegations are untrue, that the defendant received possession from the plaintiff on 10.9.1978, that the defendant is conducting business after paying rent regularly, that the document produced is an outcome of fraud and that no cause of action. 2. Three issues were framed by the court below. The first issue was regarding as to whether there is any agreement on 1.4.1992 entrusting the AS 4/1998 -2- defendant to conduct the tea shop for six months. The second issue was whether the eviction and possession prayed for is allowable and the third issue was whether the plaintiff is entitled to get any amount as per agreement and if so, what is the quantum. 3. The evidence consists of the oral testimony of P.Ws.1 and 2 and the documentary evidence Exts.A1 to A3. On the side of the defendant, D.Ws.1 and 2 were examined, besides marking of Exts.B1 to B4. It is found under issue No.1 that Ext.A1 document though not genuine, it is brought out that the possession was given to the defendant. Thus, entrustment was found proved. On issue No.2, after a detailed analysis of the evidence adduced by the parties, the court below found that the entrustment is only a licence to conduct business and hence the plaintiff is entitled for an eviction as prayed for. The defendant has not filed any appeal against the said finding and hence that finding became final. 4. On issue No.3, though the court below found that the rent fixed is admittedly Rs.30/- per day, holding that there is only the oral evidence of P.W.1 and in view of the finding that Ext.A1 is not genuine, the said issue was found against the plaintiff. 5. Even according to the defendant, the rent is Rs.30/- per day which was increased from Rs.20/-. Therefore, the court below rightly found that AS 4/1998 -3- admittedly Rs.30/- is the rent per day. Even though Ext.A1 is found against the plaintiff, in order to support the plaint allegations, the plaintiff has examined P.Ws.1 and 2. Once it gives that the rent fixed is Rs.30/-, then it is for the defendant to prove that there is no arrears. The court below was not thus right in rejecting the prayer in toto. The available evidence on record ought to be appreciated to enter a finding in this regard and pass a decree in case the proper court fee is paid. Hence, we set aside the judgment of the trial court for consideration of this issue afresh. 6. Regarding additional issue No.5, the plaintiff has valued the property at Rs.1,08,020/- for the purpose of court fee and an amount of Rs.6,407/- was paid by way of court fee. Subsequently, he sought to amend the suit to reduce the court fee. The amendment was sought for on the basis of the municipal tax. Finding that actually the rent is Rs.30/- per day, the amendment was rejected and since balance court fee was not paid, issue No.5 was decided against the plaintiff. 7. We have heard learned counsel for the appellant. As per Section 7 (3) of the Court Fees Act, the market value of a building shall in cases where its rental value has been entered in the registers of any local authority, be ten times such rental value and in other cases the actual market value of the building as on the date of the plaint. Thus, if the rental value is AS 4/1998 -4- entered in the registers of any local authority, then the market value has to be calculated at 10 times such rental value as entered in the register of any local authority for the purpose of court fee. Only if such rental value is not registered in the local authority's register, then the question of calculating actual market value will arise. In this case, the plaintiff sought to amend the plaint on the ground that the market value as entered in the municipal register is less than the value shown in the plaint. Therefore, the court below ought to have considered the plea and if the market value as entered in the register of municipal authority is proved to be less than the value shown in the plaint, necessarily the plaintiff will have to be given the relief of amending the plaint and paying the court fee on the market value in terms of Section 7(3) of the Court Fees Act. The view taken by the court below is contrary to Section 7(3) of the Court Fees Act. Accordingly, we set aside the finding on issue No.5 and direct the court below to reconsider the matter afresh. In the result, we allow the appeal by way of remand to reconsider the issue Nos.3 and 5 as indicated above. The parties shall appear before the AS 4/1998 -5- court below on 11.8.2008. The court fee paid on the memorandum of appeal shall be refunded. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/ AS 4/1998 -6- P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - A.S.No.4 of 1998 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 7th July, 2008.