Bundu Pathan S/O Naseer Khan vs Shiv Charan S/O Shri Nath
2022 Latest Caselaw 4830 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

            S.B. Civil Second Appeal No. 144/2022

Bundu Pathan S/o Naseer Khan
                                                                   ----Appellant
                                    Versus
Shiv Charan S/o Shri Nath
                                                                 ----Respondent

For Appellant(s)          :     Mr. Prakash Chand Jain
For Respondent(s)         :



            HON'BLE MR. JUSTICE SUDESH BANSAL

                                     Order

14/07/2022

1. Appellant-defendant has filed this second appeal, assailing

judgment and decree dated 21.05.2022 passed by Additional

District Judge, Jhalawar in appeal No.19/2016, affirming the

judgment and decree dated 01.04.2016 passed by Civil Judge,

Khanpur, District Jhalawar in Civil Suit No.21/2011 whereby suit

for rent and eviction has been decreed.

2. Counsel for appellant, at the outset, submits that as per

plaint, it is clear that plaintiff averred the suit house on rent at the

rate of Rs.4400/- per month but no valuation of suit for the

purpose of eviction was made nor requisite Court fee was paid.

However, the trial Court has proceeded with the trial of suit on

merits and has decreed the suit vide judgment dated 01.04.2016

and while passing a decree for eviction, the trial Court has passed

decree for due arrears of rent for the month of March, 2011 at the

rate of Rs.4400/- and from April, 2011 onwards has declared the

plaintiff to be entitled to recover the rent for use and occupation of

(2 of 3) [CSA-144/2022]

the suit property at the rate of Rs.4400/- per month along with

interest at the rate of 9% per annum.

3. Appellant has assailed the judgment and decree dated

01.04.2016 by filing first appeal and raised arguments for

improper valuation and insufficiency of Court fee, however, the

first Appellate Court has wrongly observed that suit has been

valued for the purpose of eviction and arrears of rent separately

and requisite Court fee has been paid and finally dismissed the

first appeal on merits vide judgment dated 21.05.2022.

4. Counsel for appellant does not dispute that decree for

eviction has already been executed and possession of the suit

property from appellant has been taken by respondent-plaintiff in

execution proceedings. However, execution for recovery of due

arrears of rent/mesne profit is yet pending. In execution

proceedings, the agricultural land of appellant has been attached

for the purpose of recovery of due rent/mesne profit. He submits

that even no Court fee, before proceedings for recovery of due

rent/mesne profit was paid.

5. This Court, on perusal of impugned decree for rent and

eviction, finds that in the decree it has been mentioned that

plaintiff paid Court fee of Rs.120/-. As per copy of plaint provided

by counsel for appellant, in para 10, no valuation for the purpose

of eviction has been made. The Court fee on due rent of Rs.4400/-

month of March, 2011 at the rate of Rs.110/- has been paid and a

sum of Rs.400/- was submitted for valuation of suit for permanent

injunction and then further Court fee of Rs.10/- has been paid,

thus, total Court fees of Rs.120/- has been paid.

6. Prima facie, it appears that plaintiff ought to have valued the

suit for the purpose of eviction on annual rent and has to pay the

(3 of 3) [CSA-144/2022]

Court fee accordingly, as per Section 41 of the Rajasthan Court fee

and Suit Valuation Act, 1961.

7. However, since the suit has already been decreed and decree

for eviction has been affirmed by the first Appellate Court, merely

on account of improper valuation or non-payment of Court fee, it

is not just and appropriate to set aside the impugned judgment.

Yet the plaintiff is bound to pay the Court fee payable under the

provision of the Act of 1961.

8. Hence, for this limited purpose, let notices be issued to

respondent-plaintiff.

9. Notices be given 'dasti' to counsel for appellant, if so desire.

10. Record of both Courts below be summoned to ascertain the

manner of valuation and payment of Court fee, made/paid by

plaintiff to the plaint.

11. Since, counsel for appellant admits that possession of suit

property has already been taken and for the purpose of recovery

of due arrears of rent/mesne profit the agricultural land of

appellant has been attached. As an interim relief, it is hereby

ordered that in case, appellant deposits the due rent/mesne profit

before the trial Court as determined and ordered by the trial Court

in the judgment dated 01.04.2016 till date of his dispossession

within a period of four weeks, appellant would be free to move an

application to detach his agricultural land and the concerned

authority on receipt of deposition of arrears of due rent/mesne

profit, would pass appropriate orders.

(SUDESH BANSAL),J

NITIN /21

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