Dismissed

Jamadar Singh v. Brij Bihari Prasad

Patna HC5 Dec 2012SA/16/2004

Case brief

AI extract

What is this about?

In a second appeal against a judgment dismissing a title suit for eviction, the single judge held that grievances regarding court fee adequacy and procedural non-compliance did not raise substantial questions of law and dismissed the appeal at the admission stage.

What did the court decide?

Second appeal is dismissed at the admission stage on the ground that no substantial question of law is involved.

Jamadar Singh Vs Brij Bihari Prasad — Civil Procedure and Limitation | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.16 of 2004

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	================ Jamadar Singh Brij Bihari Prasad ================	====================================== .... .... Appellant/s Versus .... .... Respondent/s ======================================
	Appearance : For the Appellant/s For the Respondent/s ================ CORAM: HONOUR	: Mr. Rakesh Kumar Singh : Mr. Partha Sarthy ====================================== ABLE MR. JUSTICE MUNGESHWAR SAHOO CAV ORDER
21.	05-12-2012 1. Heard	the learned counsel Smt. Veena Rani Prasad

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on behalf of the appellant and the learned counsel Mr. Parth Sarthy on behalf of the respondent under Order 41 Rule 11 of the Code of Civil Procedure.

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2. The original defendant appellant appellant has filed this second appeal against the judgment and decree dated 18.11.2003 passed by the 3^rd Additional District Judge, Gaya in Title Appeal No. 10 of 2003 / 34 of 1982 whereby the lower appellate court dismissed the appeal and confirmed the judgment and decree of the trial court dated 14.4.1982 passed by Execution Munsif-1^st in Title Suit No. 2 of 1982/ 418 of 1979.

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3. The short facts which are relevant for the purpose of deciding this second appeal may be stated that the plaintiff filed the aforesaid suit for eviction of the defendant from the

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Patna High Court SA No.16 of 2004 (21) dt.05-12-2012

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suit premises on the ground of default under the Bihar Building (Lease, Rent and Eviction) Control Act. Earlier the eviction suit was decreed ex party . Thereafter the defendant filed Title Suit No. 381 of 1977/ 275 of 1978. Thereafter the ex party judgment was set aside. Thereafter the present plaintiff filed the present title suit for eviction of the defendant on the ground of default and payment of rent. The trial court by the judgment and decree dated 19.4.1982 recorded the finding that the plaintiff failed to prove the relationship of landlord and tenant between the parties but since the plaintiff has been able to prove his title he is entitled to evict the defendant from the suit property and accordingly, decree was granted. The defendant filed title appeal before the lower appellate court. The lower appellate court allowed the appeal and dismissed the plaintiff’s suit for eviction. The lower appellate court held that in aid of Order 7 Rule 7 the plaintiff cannot be granted decree because the plaintiff failed to prove relationship of landlord and tenant. 4. Against the said judgment and decree of the lower appellate court Second Appeal No. 113 of 1984 was filed by the plaintiff before the High Court. The High Court dismissed the second appeal. Against the judgment of the High Court the plaintiff filed civil appeal before the Apex Court. The Hon’ble

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Patna High Court SA No.16 of 2004 (21) dt.05-12-2012

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Apex Court by terms of judgment and order dated 8.4.1993 passed in Special Leave to Appeal (Civil) No. 7703 of 1985 held and directed that since the appellant has now even stated on affidavit that he is willing to make good the court fee in all the courts below and correct the suit valuation, we extend the time for the purpose up till 30^th June 1993 and on the compliance thereof he shall get his decree. Appeal is allowed in these terms. After the order of the Apex Court, the High Court remanded the matter to the lower appellate court to decide the question of title as the plaintiff had filed court fee in terms of the order of the Apex court. After remand by the impugned judgment and decree the lower appellate court held that the plaintiff is owner of the property and accordingly the judgment of the trial court was confirmed and the appeal was dismissed.

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5. The learned counsel for the appellant submitted that the plaintiff did not file the court fee within the period granted by the Apex Court. The plaintiff also did not file the amendment application for amendment of the plaint. The lower appellate court on the basis of court fee register only held that the plaintiff has filed the ad valorem court fee for all courts. An amendment application was filed for the first time in

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Patna High Court SA No.16 of 2004 (21) dt.05-12-2012

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November 2000 but copy of the same was not served on the appellant. Likewise another amendment application was filed on 31.7.2001 before the appellate court which was not maintainable because without moving the Apex Court no amendment application could have been filed by the plaintiff. The learned counsel further submitted that the lower court record was not made available to the appellate court when it was called for to see as to whether court fee was filed or not and therefore, the judgment of the appellate court is vitiated.

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6. On the other hand, the learned counsel appearing on behalf of the respondent submitted that the Apex Court by the order specifically allowed the special leave petition and set aside the judgment of the High Court and held that if within the period granted by the Apex Court ad valorem court fee on the market value is paid by the plaintiff then the plaintiff will get his decree. Pursuant to the said direction of the Apex Court the plaintiff filed the ad valorem court fee on the value of the suit and since it is the direction of the Apex Court that on payment of court fee the plaintiff will get the decree the appellant cannot be allowed to say that no decree could have been passed.

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7. From perusal of the order of the Apex Court it

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Patna High Court SA No.16 of 2004 (21) dt.05-12-2012

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appears that the Apex Court specifically directed that if the plaintiff pay the ad valorem court fee for all courts he shall get the decree. The question raised by the appellate to the effect that ad valorem court fee on market value has not been paid is concerned, it may be mentioned here that the Apex Court in the case of Rathna Varnarja vs. Smt. Vimal AIR 1961 SC 1299 has held that the question whether the plaintiff has paid adequate court fee on his plaint and whether proper court fee is paid or not is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court fee paid by the plaintiff the defendant may feel aggrieved, it is difficult to appreciate. In the present case as stated above, the main grievance of the appellant is that the plaintiff has not paid ad valorem court fee on the market value. In my opinion, this question is not a substantial question of law rather it is related to the quantum of court fee which is to be paid by the plaintiff to the State. Therefore, this question is not between the parties to the suit nor the right of the parties to the suit is effected thereby. All the other points raised by the appellant that copy of the amendment application was not served or that only on the basis of court fee register the court recorded the finding that ad valorem court fee has been paid are concerned in my

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Patna High Court SA No.16 of 2004 (21) dt.05-12-2012

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opinion those question are not at all substantial question of law. It relates to the compliance of direction of the Apex Court as to whether the direction was complied with or not. However, from perusal of the judgment of the lower appellate court it appears that the lower appellate court call for the court fee register and on the basis of the same it recorded the finding that the plaintiff has paid the court fee.

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8. The other aspect of the matter is that the defendant is claiming title on the basis of adverse possession. Both the courts below disbelieved the defendant’s case and on the basis of materials available on record recorded that the plaintiff is the owner of the property which he has purchased by registered sale deed. Now therefore, when the Apex court categorically directed that on payment of ad valorem court fee the plaintiff shall get the decree, the defendant cannot be allowed to say that the ad valorem court fee has not been paid within the time or on the market value. Primarily, as has been held by the Apex Court, this question relates to the plaintiff and the State of Bihar. So far the defendant appellant is concerned, he has got no concern with this question. In my opinion, therefore, this is not a substantial question of law for decision in this second appeal.

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Patna High Court SA No.16 of 2004 (21) dt.05-12-2012

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9. In view of the above discussion of the facts and circumstances of the case and the findings of the courts below in my opinion, the points raised by the appellant are not at all substantial question of law. Therefore, it is held that no substantial question of law is involved in this second appeal. Accordingly, this second appeal is dismissed at the admission stage itself.

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(Mungeshwar Sahoo, J)

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S.S./-

Jamadar Singh v. Brij Bihari Prasad

Case brief

What is this about?

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Jamadar Singh v. Brij Bihari Prasad

Case brief

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