P L D 1967 Dacca 113 (PLP)

HASAN, J.‑I agree with my learned brothers that the instant case is governed by clause (xii), section 7 of the Court Fees Act. Though I need not state the facts as the same have been elaborately stated in the judgments of my learned brothers, yet I only desire to add a few words on some provisions of section 7 of the Court Fees Act. Taxing Statute should be given its primary meanings without doing any violence to its language. Having in view the above principle, I wish to approach some of the clauses of section 7 of the Court Fees Act. Some of the clauses of section 7 provide the mode of computation of fee for some suits for possession of land gardens and houses. Clause (ix) of the section provides that fee for suits for recovery of mortgaged property shall be computed according to the principal money expressed by the instrument of mortgage and not according to the value of the land mortgaged. Clause (xi) provide that fee for suits between landlord and tenant for the recovery of immovable property from a holding over after determination of a tenancy and for recovery of occupancy of immovable property from which a tenant has been illegally ejected by the landlord shall be computed according to amount of rent of the immovable to which the suit refers, payable for the year next before the date of presenting the plaintiff. It may be observed that in each of the above cases the possession is unlawful. Thus from clause (xi) it is clear that the intention of the Legislature is that computation of fee, payable for the above suits, shall be on the basis of rent payable for the year next before the date of presenting the suits and not the value of the land of which possession is prayed for or in other words the fee is to be payable basis of the benefit accrued to parties under the arrangement between the parties measured by the premium or rent to be paid by the lessee to the lessor, though the possession is unlawful. Hence, in the instant case, as the plaintiff has claimed that defendant No. 1 is a licensee, the value of the land cannot be the basis for computation of fee to be paid but the amount payable by the defendant to the plaintiff for computation as a licensee. But as according to the plaint, though the defendant No. 1 is a licensee under him, he is to pay nothing, the instant suit does not come under clause (xi). We also find that there is not other specific provision for such a suit, but clause (xii) has been added to section 7 of the Court Fees Act which runs: "In suit for expressly provided for in this section, according to the value claimed, but such value shall not be less than a value which would attract a Court‑fee of less than fifteen rupees." I am of opinion, in view of the case of the plaintiff, that the instant case is governed by clause (xii) of section 7 of the Court, fees Act. I accordingly discharge the rule with costs. A. S. CHOWDHURY, J.‑In this revisional application we are called upon to determine as to what would be the appropriate valuation of the suit for the purpose of court‑fee and it arises in the following circumstances: The plaintiff who is opposite‑party in this petition has instituted a suit for recovery of possession of a shop in the New Market here at Dacca after evicting the defendant who occupies the premises as his licensee for tailoring work. The plaintiff who is himself a monthly tenant of the Provincial Government for the said premises asked the defendant to vacate the same and on his refusal, the present suit for possession has been instituted. The suit has been valued at Rs. 120 for the purpose of court‑fees. The defendant‑petitioner, on the other hand, asserts that the court‑fee is to be paid on the valuation of the property itself. The trial Court-overruled the objection of the defendant and held, as contended by the plaintiff, that court‑fee is to be paid according to the value claimed in the suit in accordance with the provision of clause (xii) of section 7 of the Court Fees Act, 1870 (hereinafter called "the Act"). The defendant‑petitioner, thereafter, moved this Court and obtained a rule for the hearing of which this special Bench has been constituted regard being had to the public importance of the question involved and the absence of any decision of the superior Courts of Pakistan in this behalf. Plaintiff is to pay Court‑fee for a suit instituted by him in accordance with the provisions of section 7 of the Act. This section is a rather long one. It contains within itself various clauses providing for payment of court‑fees at different rates for various classes of suits. Section 7 occurs in Chapter III of the Act. The heading of chapter is "Computation of Fees." A bars reading of whole of the section indicates that the aim of the Legislature was to make provisions for all classes of suits. The determination of the question raised before us puts us to a search for the right clause applicable to this suit. It is, however, clear that the suit in question cannot conceiv ably come within the ambit of any of the clauses except that of clauses (v) and (xii) of section

7. Both Mr. Aleem‑al‑Razee, learned counsel for the petitioner and Mr. A. Salam, learned Advocate for the opposite‑party, have submitted that of the twelve clauses of the Section, only these, two may be considered for application to this suit. Mr. Aleem, however, contends that clause (v) applies to this suit whereas Mr. Salam submits that clause (xii) will govern the same. I am quoting here section 7 together with clause (v) and clause (xii). Clause (xi) is also set out below as reference to it will be necessary. "

7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows (i) . . . . . . . . . (ii) . . . . . . . . . (iii) . . . . . . . . . (iv) . . . . . . . . . (v) In suits for the possession of land, buildings or gardens‑ (a) according to the value of the subject‑matter and such value hall be deemed to be fifteen times the net profits which have arisen from the land, building or garden during the year next before the date of presenting the plaint, or if the Court sees reason to think that such profits have been wrongly estimated, fifteen times such amount as the Court may assess as such profits or accordance to the market‑value of the land, building or garden, whichever is greater ; (b) if in the opinion of the Court, such profits are not readily ascertainable or assessable, or where there are no such profits, according to the market value of the land, building or garden : (vi) . . . . . . . . . (vii) . . . . . . . . . (viii) . . . . . . . . . (ix) . . . . . . . . . (x) . . . . . . . . . (xi) In the following suits between landlord and tenant :‑ (a) for the delivery by a tenant of the counterpart of a lease, (b) to enhance the rent of a tenant having a right of occupancy, (c) for the delivery by a landlord of lease, (cc) for the recovery of immovable property from a tenant including a tenant holding over, after the determination of a tenancy, (d) to contest a notice of ejectment, (e) to recover the occupancy of immovable property from which a tenant has been illegally ejected by the landlord, and (f) for abatement of rent‑ according to the amount of the rent of the immovable property from which the suit refers, payable for the year next before the date of presenting the plaint. (xii) In suits not expressly provided for in this section, accord ing to the value claimed, but such value shall not be less than a value which would attract a Court‑fee of less than fifteen rupees." This suit for possession of a part of a building has been instituted by the plaintiff who has a limited interest therein as tenant of the Provin6ial Government against the defendant who is a mere licensee. In examining the question raised before us, one may say that it comes under clause (v) of section 7 as it speaks of "suits for the possession of land, buildings or gardens." It is a suit for the possession of building. In so far as the opening words of the clause are concerned, I do not find any difficult in thinking that the suit comes under this clause but, then, sub‑clause (a) of clause (v) creates difficulty. The expression "according to the valuation of the subject‑matter" requires to be considered carefully. I find that the Legislature directs that for any suit for possession of the land, buildings or gardens the Court‑fee is to be paid according to the value of the "subject‑matter". Without proceeding further, I should consider what is meant by the word "subject‑matter". Mr. Aleem, learned counsel for the defendant petitioner, contends that it means the property involved in the suit and as such the court‑fee is to be paid thereon. The expression "subject‑matter", to my mind, means a right sought to e be established, wrong to be remedied .and defence asserted in justification of the wrong. The word "subject‑matter" also occurs lit Order XXIII, rule 3 of the Code of Civil Procedure, which provides for "compromise of suits". Rule 3 of Order XXIII is as follows:‑ "Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject‑matter or the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance there so far as it relates to the suit." In the case of Shadi Ram v. Amin Chand and others (A I R 1930 Lah. 937) it was observed that, "subject‑matter" has been interpreted by authority to be equivalent to the phrase "cause of action". Bundle of events leading to the institution of suit in this case would be granting of leave and licence to the defendant to occupy a part of the building and refusal on his part to leave the premise when asked by the plaintiff' opposite‑party to do so. Subject‑matter then, cannot be, the property in question in this case but the right violated and sought to be enforced and the right on the claim of which violation is attempted to be justified. The word "subject‑matter" has been explained in I Corpus Juris Secundum

959. The following passage occurs therein:‑ "The subject or subject‑matter of an action has been variously defined as The facts constituting the cause of action; the origin and ground of plaintiff's right to recover or obtain the relief asked; the alleged wrongful act or omission of defendant. Again, it has been defined as the right which one party claims as against the other, and demands the judgment of Court upon, plaintiff's main primary right to enforce which the action is brought. It has been defined further as plaintiff's primary right and its infringement or invasion by defendants ;" Keeping in view the guidance given in the above passage as well as in Lahore case referred to above, the subject‑matter in this case will be the right to the property as claimed by the plaintiff and the defendant. It therefore, does not appear to be correct to say, as contended by Mr. Aleem, that subject‑matter of the suit as the property for the possession of which the suit has been instituted. Subject‑matter is the right enjoyed by the plaintiff. It is neither land nor buildings nor gardens but a right that the plaintiff possesses over the same. It is true opening words of clause (v) indicate that it would apply to a suit "for the possession of land, buildings or gardens" but we have also to consider sub- clause (a) of clause (v), which requires the plaintiff to value the suit "according to the subject‑matter". As already stated subject matter is neither land, building nor garden but the right the plaintiff possesses over the same for the breach of which he claims eviction of the licensee. If sub‑clause (a) of clause (v) of section 7 would have stopped at the first part, it might have been possible to say that this clause would apply to this suit. But there is difficulty in applying the concluding part of the clause if the subject‑matter of the suit is a right of the plaintiff. After having said in sub‑clause (a) that the suit is to be valued according to subject‑matter, the Legislature proceeds to lay down the method of finding out the valuation. Method suggested is that it would be "fifteen times the net profits which have arisen from the land, building or garden during the year next before the date of present ing the plaint". It is clear that there cannot be profits from mere right and as such this part of the clause will not apply if the subject‑matter is right to the property. This part may apply if the subject‑matter is property but, again, to hold that subject‑matter is property one has to disregard the accepted meaning of the word. Sub‑clause (b) cannot be read independently of sub‑clause (a) as it begins with "if" which connects it with clause (a). Sub clause (b) provides that in case the profits cannot be ascertained in should be market‑value of the land. Here again, the expression "such profits" refers to the profits of the property spoken of in sub‑clause (a). It is difficult to apply sub‑clause (b) as well if the subject‑matter is right to the property as distinguished from the property itself. Clause (v) cannot therefore be applied to a suit such as one we are concerned with. It has however, been laid down in a number of decisions of Indian High Courts in similar suits that the subject‑matter of the suit is the cause of action or the right of the plaintiff and that clause (v) applies to such a suit. It, however, appears to me that the cases in which view was taken, it was not properly appreciated that the latter part of the clause would not apply. Again, in a number of other Indian decisions, as I shall indicate, the subject-matter of the suit has been construed as the property itself. Inherent ambiguity of the provisions of clause (v) is reflected in these large number of conflicting decisions. Absence of an express provision is clearly indicated. I would now briefly refer to some of the conflicting decisions, which will show the difficulty in applying clause (v) to this suit. In the case of Basiram Christian v. Ganesh Chandra Das Gupta (24 C W N 167 Notes) Newbould, J of the Calcutta High Court refused to interfere with the decision of the Munsif to the effect that possession of the licensee was the subject‑matter of the suit. That was also a suit by a lessee for recovery of possession of the land in question from licensee. In the case of Ram Raj Tewari v. Girinandan Bhagat and others (I L R 15 All. 63) a Division Bench of the Allahabad High Court consist ing of Sir John Edge, C. J. and Aikman, J. held that clause (v) of section 7 of the Court‑fees Act would apply to a suit for posses sion to eject a tenant and that the valuation of such a suit for the purpose of Court‑fees would be the valuation of the subject matter of the suit, namely, the right of a tenant and not of the land itself nor of merely one year's rent. It was observed therein: "As the Court Fees Act, 1870 was undoubtedly enacted with the object of specifying the Court‑fees to be paid in every class of suit, we must, if we can, so read it as to make it include the suit in question here. This suit undoubtedly was one for the posses sion of land. It was a suit by a landlord to eject his tenants and to recover from them that possession of the land which they were entitled to as tenants at fixed rates. We have carefully gone through the Court Fees Act of 1870, and we are unable to find either in the body of the Act or in the schedules, any provision which would apply to a suit of this kind, unless it is to be found in the opening portions of paragraph 5 of S. 7 paragraph 5 begins thus:‑"In suit for the possession of land, houses and gardens according to the value of the subject‑matter. "What follows these words applies to cases of which this is not one, and pro vides for the ascertainment of value by means which would not be applicable here. We are accordingly of opinion that we must apply the words which we have just quoted from paragraph 5 to this case in preference to holding that the Court Fees Act makes no provisions for Court‑fees in suits of this kind. The result is that in suits under section 93, cl. (b), the value for the purpose of Court‑fees and the value for purpose of jurisdiction have to be computed in the same way, namely, by ascertaining the value of the subject‑matter. The subject‑matter here cannot be treated as the land itself, as the landlord, plaintiff, has through his tenants, proprietary possession, and what is really sought is to free the land from the possession of the tenants holding as tenants at fixed rates, that is, to get rid of the tenants and their tenant rights and that is a relief the value of which is easily ascertainable." The passage quoted above clearly indicates that the difficulty felt by me was also noticed by the learned Judges in applying this clause as a whole. It will be seen that the learned Judges, after quoting the opening words of the clause' which was called Paragraph, themselves observed "what follows these words applies to cases of which this is not one, and provides for ascertainment of a value by means which would not be applicable here." If so, can it be said that the sub‑clause (a) or a part, of it applies ? The answer, I would say with utmost respect, appears to me to be in the negative. The latter part of the clause cannot be ignored and in consequence, sub‑clause (a) a whole is inapplicable. A Division Bench of the Patna High Court consisting of Ross and Kulwant Sahay, JJ., held in the case of Mst. Barkatunnisa Begum v. Mst. Kaniza Fatma (I L R 5 Pat. 631) that in a suit for ejectment of a licensee Court‑fee payable was according to the subject‑matter of the suit and the subject‑matter would be the right to eject the defendants and the value of that right would be the value of defendants of the right to remain in the house under the licence of the plaintiff. In reaching this conclusion the learned Judges agreed with the view expressed by the Allahabad High Court in the case of Ram Raj Tewari referred to above. In the case of Chandi Charan Das v. Sushila Bala Dasi (59 C W N 6062) the same question was raised before a Division Bench of the Calcutta High Court consisting of Das Gupta and Mookerjee, JJ. That was also a suit for possession against a licensee on the ground of revocation of the same. The suit was valued for the purpose of jurisdiction at Rs.

110. It was agreed by both the parties in that case that court‑fees payable in the plaint should be in accordance with the provisions of section 7(v) of the Court Fees Act. But the dispute arose as to the basis of the valuation of the suit. It was held in that case that for the purpose of jurisdiction the subject‑matter of the suit was not the property in respect of which the plaintiff' claimed relief but the relief itself. In that case also the claim was that the licensee should leave the land and the structure thereon. The case of Hafiz Md. Faleh Nasib v. Haji Abdur Rub and others (A I R 1954 Cal. 101) appears to me to be of great importance for the deter mination of this question. In that case a Mutwalli instituted a suit to recover possession of wakf property, which was alienated by his predecessor who had no right to do so. A declaration was, asked for by the present Mutwalli and he valued the suit for the purpose of court‑fee under section (7) (v) of the Act. It was clearly held in that case by another Division Bench of the Calcutta High Court consisting of Lahiri and Guha Ray, JJ. that the subject- matter of the suit was not the property itself but the right of the Mutwalli in the disputed property which would indeed be much narrower than that of full owner and as such his interest was not required to be valued at the same figure as his interest as a full owner. In the suit before us also as already stated the plaintiff is a monthly tenant. His own interest is limited. He claims a right of eviction against a person who has himself no more interest than that of a mere permissive possession, granted by the limited owner, namely,. the plaintiff. In this case it would indeed the hazardous to think that the Legislature intended that the owner of such limited interest, in order to evict a person having still more limited interest should pay court‑fee on the valuation of the property itself. In that case it will almost be impossible for aggrieved persons to vindicate their rights in a Court of law if they are forced to pay ad valorem court‑fee on the property itself. If the provision of law is clear, hardship is no ground to avoid it. Effect has to be given to the clear intention of the Legislature. But in case a provision of law is ambiguous, c a beneficial construction is to be given to it and in such circum stances we are not permitted to think that the Legislature intended to enact an oppressive law: There are again a number of decisions of the Indian High Courts in which contrary view has been expressed. In these cases section 7 (v) of the Act has been found applicable, for, it has been held that subject‑matter of the suit means the property itself and not the right to property and the valuation should be on that basis. I would again, with respect, say that I find myself unable to agree with this line of decisions as well, for the simple reason that the word "subject‑matter" does not mean property only. If we keep the definition given in Corpus Juris Secundum in view, the latter part of clause (v) would not apply. The learned Judges, in this line of cases, however, applied the clause construing the word "subject‑matter" in this provision to mean the property itself. I would mention that in I Corpus Juris 960 a reference was also made to an ejectment suit in the following terms; "In ejectment, for example the subject of the action is the alleged right of possession of the land sought to be recovered." It will therefore be seen that the word "subject‑matter" was construed as property in these decisions in disregard of the accepted definitions set out in Corpus Juris Secundum, referred to above. It is true in some cases the subject‑matter may be property. But no guidance having been given in the Act, it is difficult to say in what circumstances it would be so. In the case of Ratilal Manilal v. Chandulal Chhotalal (A I R 1947 Dom. 482), it was held by a Division Bench of the Bombay High Court consisting of Macklin and Bardakar, JJ. that where in a suit for possession of a house the plaintiff claimed that the defendant in possession was his licensee the court‑fee would be payable under section 7 (v) according to the market value of the house. I have already indicated with respect as to why I find myself unable to attribute to the Legislature an intention to compel a person to pay the court‑fee on the valuation of the property in which the person sought to be ejected has no more interest than that of a licensee. In the case of Satish Kumar and others v. Sm. Saliabasini Devi (A I R 1949 Cal. 621) Sen .J. of the Calcutta High Court dissented from the view expressed in 24 C W N 167 of the same Court, Sen, J. observed that in a suit for possession of certain premises from a licensee whose licence had been revoked the valuation for the purpose of Court‑fee would be governed by section 7 (v) of the Act and that the plaintiff was not entitled to put his own valuation on the suit and that the Court‑fee should be paid on the valuation of the subject‑matter of the suit which was held to be the property itself. The reason assigned for taking this view, is that the Legislature made specific provision in clause (xi) of section 7 that in the ease of a landlord suing for possession from a tenant court‑fees would be paid according to the, amount of the rent of the immovable property to which the suit refers, payable for the year next before the date of presenting the plaint. The learned Judge thought that the Legislature made an exception in case of a tenant and if it wanted to make any such exception in the case of a licensee it would have done so. That not having been done the learned Judge was of opinion that clause (v) would be applicable. Speaking with respect, I would like to say that clause (xi) has greatly persuaded me to take the contrary view. In my opinion the Legislature felt that it would indeed cause great hardship and would be unreasonable to ask for Court‑fee on the valuation of the property itself in a suit for possession by a landlord against a limited owner, namely, a tenant and as such made provision for such a case in clause (xi) giving great relief. Can it be said that the Legislature would intend that while a lesser amount should be paid as Court‑fee to evict a tenant, a much higher amount would be paid for ejectment of a licensee? The Legislature is presumed to act reasonably and to enact laws justly. I cannot, therefore, attribute such an intention to the Legislature in the absence of an express provision to that effect. This is why I am all the more convinced that no provision was made for Court‑fees in respect of a suit for possession of land, buildings or gardens against a licensee. In the case of Satish Kumar reported in 1949 Calcutta, it appears unreasonableness has in effect been attributed to the Legislature in applying the provision. I would in preference to such an idea, attribute merely absent mindedness and say that there is no provision, at least no express provision governing a suit of this kind. In the case of Manik Chand Mondal and another v. Sudhir Kumar Mondal and another (64 C W N 80) a Division Bench of the Calcutta High Court expressed dissent from the decisions of that Court reported in 24 C W N 167, 59 C W N 606 as well as A I R 1954 Cal.

101. That was also a case for possession on the eviction of the‑ defendants who were licensee. . In' that case Das Gupta, J delivering the judgment of the Court observed as follows; "As the plaint stands, it is quite clear that the plaintiffs are liable to pay court‑fees in accordance with the provisions of section 7 (v) of the Court Fees Act. It is equally clear that the provisions of sub‑clause (a) of clause (v) of section 7 are not applicable as no profits arise and consequently the provisions of section 7 (v) (b) apply. The position, therefore, is that the plaintiffs have to pay and ad valorem court‑fees according to the value of the subject‑matter of the litigation and that value to be the market value of the land." The learned Judges have in effect expressed the same view, as I did earlier, that sub‑clause (a) of clause (v) of section 7 is not applicable but they are of opinion that sub‑clause (b) of clause (v) of section 7 is applicable. I would respectfully say that if sub‑clause (a) of clause (v) is not applicable for more than one reason. A mere look at sub‑clause (a) of clause (v) of the section would indicate that clause (b) cannot be read without clause (a). As already noticed by me clause (b) starts with `if', referring to clause (a). Therefore, the learned Judges' observation only indicate how difficult it is to apply section 7 (v)(b) to a suit (sic) this kind. Although confronted with this difficult it must be said in fairness that the learned Judges made every effort to apply the section as it weighed with them that there must be some court‑fee payable for a suit instituted in a Court of law. They observed that "subject‑matter" means subject‑matter of the litigation and held that ad valorem court‑fee was payable. The learned Judges observed: "It is certainly possible to say that the subject‑matter of a suit is really the relief for which the suit is brought". It was then further observed "the word, subject‑matter, may well be different when the question of court‑fee has to be considered under section 7(v) of the Court Fees Act." These observations really indicate that the provisions of section 7 (v) is not clear enough to include such suit as we are concerned with. In the case of Gajanan Nanaji and others v. Rajeshwar Krishanji and others (A I R 1950 Nag. 237), it has been held by Bose, C. J. that in a suit for possession of shop in a market building by the permanent lessee thereof is clearly for possession of a portion of a house and that the subject‑matter of the suit is house and not the leasehold rights which are intangible and are not capable of physical possession. In the case dissent was also expressed to the decision reported in Mst. Barkatunnissa Begum v. Mst. Kaniza Fatma, referred to above. In the Nagpur case, Bose, C. J. discussed the Patna case in the following terms: "Their reasoning is that the subject‑matter of the suit in ‑a case like this in not the house but the leasehold rights in it. If that is so then with the utmost respect I cannot see how S. 7 (v) can apply because that is limited to cases where the subject- matter is either a house, garden or land." I am taking the view that the subject‑matter is the right sought to be enforced or the cause of action and if it is not so, even then on the reasoning of Bose, C. J., in a suit of this kind section 7 (v) does not apply. I am unable to hold that subject‑matter is the house and not the right. In the case of Marthandrao Tatyaji v. Tarbai (1952 M B 123) Mehta, J. preferred to follow the decision reported in Ratilal Manilal v. Chandulal Chhotalal and dissented from Mst. Barkatunissa Begum v. Mst. Kaniza Fatma. He also agreed with the decision reported in Satish Kumar and others v. Sm. Sailabasini Devi. He does not seem to have given any new reason for his conclusion except the decisions with which he agreed. In the case of Nidugonda Rudramani and another v. Chaduvula Srisailam and another (A I R 1954 Mad. 200) Chandra Reddy, J., also dissented from the cases reported in Ram Raj Tewari v. Girinandan Bhagat and others, and Mst. Barkatunnisa Begum v. Mst. Kaniza Fatma, and followed the decisions reported in Ratilal Manilal v. Chandulal Chhotalal, and Mst. Barkatunnisa Begum v. Mst. Kaniza Fatma, and followed the decisions reported in Ratilal Manilal v. Chandulal Chhotalal, and Satish Kumar and others vs. Sm. Sailabasini Devi, and Gajanan Nanaji and others v. Rajeshwar Krishanji and others, in the Madras case the plaintiff instituted a suit for ejectment of the defendants from the suit house on the allegation that the defendants were let into possession as licensee who refused to vacate the same when demanded. The learned Judge has held that in such a case section 7(v) of the Act applies. He has further observed that section 7, (xi) of the Act which makes provision for Court‑fee of a suit instituted by a landlord for eviction of a tenant does not apply to the case before him as the licensee cannot be included in the term `tenant'. I also agree with him that the licensee cannot be called a tenant and clause (xi) does not apply. Chandra Reddy, J., does not agree with the view to the effect that in a suit for possession of land, buildings or gardens, on the eviction of a licensee, the subject matter would be the right sought to be enforced or the cause of action rather than the property itself. His reason is that if the subject‑matter is the right and not the, property other sub‑clauses of clause (v) will not apply. I agree with him to the extent that if the subject‑matter is the right or the cause of action the sub- clauses of clause (v) cannot be applied. But because certain sub- clauses do not apply. I am unable to agree that the meaning of subject‑matter would be something other than what is stated in a passage occurring in Corpus Juris Secundum quoted above. The learned Judge, however, took the view that subject‑matter meant the house and therefore, he applied the other sub‑clauses. In the case of Bisir Kumar Dutta and others v: Susil Kumar Dutta (65 C W N 1) a Special Bench of the Calcutta High Court consisting of Guba, P. N. Mookerjee and Bannerjee, JJ., on a scrutiny of practically all the decisions referred to above reached the conclusion that valuation of a suit for ejectment of a licensee, upon revocation or termination of ‑his licence, either for the purpose of ‑ court‑fees or jurisdiction shall be made under clause 7 (v) of the Act. My respectful dissent from the view taken by the learned Judges of the said Special Bench is based on the reasons already indicated above. On a review of these decisions it will be found that the learned Judges of the Indian High Courts are divided in their opinion in this behalf. Some have clearly expressed the view that section 7 (v) of the Act applied to such a case, others have dissented from the same and on reading of these decisions, it is apparent that the provisions in this behalf are not clear enough to give any direct guidance in the matter. The provisions are more than ambiguous. It appears to me that due to the difficulty resulting from the absence of an appropriate provision to be applicable to such a case as we are concerned with, the law in Pakistan was amended by Ordinance No. LII of 1962 by adding clause (xii) to section 7 of the Act. That provision which has also been quoted earlier is again set out below: "(xii). In suits not expressly provided for in this section, according to the value claimed, but such value shall not be less than a value which would attract a Court‑fee of less than fifteen rupees." The expression "according to the value claimed" clearly indicate that the court‑fee will be paid according to the value of the right sought to be enforced and the case before us will clearly come under this provision. Mr. Aleem submits that this clause will apply only to a case which is not governed by any of the provisions of this section and he contends that since clause (v) applies clause (xii) cannot be applied regard being had to the expression "In suits not expressly provided for in this section." Short answer to this contention is that the words "expressly provided for" indicate that there must not only be a provision but one in which the law will be laid down in clear and unambiguous terms. It must be noticed that the Legislature has taken care to insert the word "expressly". In indicates that the emphasis is on the clarity of the provision. The divergence of opinion which resulted from failure of the Legislature to express itself clearly in clause (v) of the section is apparent and on that realisation the Legislature in Pakistan has added clause (xii) so that the suits which do not come under any of the foregoing clauses will be governed by this clause and in discussing the Indian decisions, I have endeavoured to show that the learned judges of the Indian Courts found it difficult to apply all parts of the clause to the cases before them. It should in this connection further be remembered that a fiscal statute must be clear and wherever there is ambiguity, beneficial construction g must be given to it. To apply clause (v) to a case of this nature will cause great hardship and since ambiguity of that clause is apparent it must be held that this case is not governed by clause (v) but clause (xii) which makes provision for such cases. For the reasons stated above, I am of opinion that the order of the learned Munsif that clause (xii) of section 7 of the Act applies to this case calls for no interference and, in the result, I would discharge the rule with costs. ABDULLA, J.‑This revisional application has come up for disposal before this Bench as it was thought that the point raised in the application as to the valuation of a suit for ejectment of a licensee for the purpose of Court‑fee requires to be settled as there is no judicial opinion so far as this Court is concerned on the point and there appeared to be a conflict of judicial opinion of the High Courts in India. The facts very briefly are that the plaintiff was a tenant with regard to a shop in the Government New Market at Dacca in which he allowed the defendant No. 1 to carry on a tailoring business temporarily as a licensee and on the promises that he would vacate the said room when required by the‑plaintiff, who also a tenant with regard to the adjoining shop room. Without going into details, it appears that the plaintiff revoked the licensee and desired the licensee defendant No. 1 to vacate the premises but the said defendant No. 1 did not do so. On the other hand he sought to get himself recognised as a tenant by defendant No. 2, the Government. Therefore, the plaintiff filed this suit for declaration of his title and for khas possession by evicting the defendant No.

1. In the suit, the plaintiff did not claim any relief against the defendant No.

2. The plaintiff valued the suit at Rs. 120 as according to the plaintiff there was no objective standard for valuation and paid court‑fee accordingly. The defendant raised objection and issues Nos. 4 and 5 were framed to the following effect: "

4. Has the suit been properly valued and sufficiently stamped?

5. Has the Court jurisdiction to try the suit ?" The learned Munsif found that there was no specific provi sions in the Court Fees Act for eviction of a licensee by a monthly tenant. He, therefore, held that section 7(xii) which had been added by the amending Ordinance No. LII of 1962 was applicable and directed the plaintiff to value the suit in terms of that provision and to pay deficit court‑fee by 21‑3‑

64. The defendant thereafter obtained this rule. The contention of the defendant is that it was a suit for possession after evicting a licensee and as such it was to be valued under section 7(v). In support of this contention Mr. Aleem‑al‑Razee has relied on the decision in the case of Sirish Kumar Dutta and others v: Susil Kumar Dutta. In this case nearly all the relevant cases had been discussed and as such it was claimed that this ease was an authority for the proposition advanced by defendant. In this case the point of reference was "what is the proper valuation of the suit for eject ment of a licensee upon revocation or determination of his licensee for the purposes of (i) court‑fee and (sic) from the judgment do not clearly reveal whether the plaintiffs were full owner or had limited interest. But the Special Bench has treated the case as if the suit was by a full owner. But it appears from the judgment of the Munsif quoted in that judgment at page 3 that the lawyer appearing on behalf of the plaintiff argued "that valuation of the suit property cannot be ascertained in this case as the plaintiff has a very limited interest of tenancy therein". . The Munsif held "This contention has some, legs to stand upon; but I find from the plaint itself that licensee fee of Rs. 40 per month was payable by the defendant to the plaintiff in respect of the suit property and on this basis I value the suit property at Rs. 7,200 under section 7 (v) of the Court Fees Act. So far as the valuation of the suit at Rs. 100 for the pur poses of jurisdiction was concerned the learned Munsif, apparently did not disturb the valuation. It was held by the Division Bench which referred the case to a Special Bench that that had resulted in a very unsatisfactory state of thing and the position had become somewhat anomalous, the suit, so far as ejectment is concerned being valued at Rs. 100 for the purpose of jurisdiction and at Rs. 7,200 for the purpose of court‑fee. It does not appear from the particular question referred to for determination by Special Bench as quoted above that the question of limited interest in the property was specifically considered by the Special Bench. The said Special Bench, however, answered the relevant question thus. "Valuation of a suit for ejectment of a licensee upon the revocation or termination of his licensee either for the purpose of Court‑fee or for the purpose of jurisdiction shall be made under the provisions of section 7(v) of the Court Fees Act." It does not appear either from the question referred to the Special Bench itself considered the question of a plaintiff with limited interest. The case of the plaintiff with limited interest was however considered in the some cases reviewed by the Special Bench: But the conclusion of Special Bench with regard to the cases cited by it are to be found at page 18 and the cases have been treated to form five different groups from which it does not appear that the Special Bench considered the case of such plaintiff; specifically. Such a case was specifically discussed in the case of Hafiz Md. Fateh Nasib v. Abdur Rub and others, where Lahiri and Guha Ray, JJ. held that in a suit brought by a Mutwalli to recover possession of the property it was the interest of the Mutwalli in the disputed property which forms the basis of the valuation and not the interest of the full owner. This view of the Calcutta High Court has been confirmed by another Division Bench of the Calcutta High Court in the case of Manik Chand Mondal and another v. Sudhir Kumar Mondal and others Das Gupta, J. in delivering judgment has said after affirming the, view held by Lahiri and Guha Ray, JJ. "It is certainly true that the market value of anything has to be a ascertained in respect of the particular interest. In one case it may be the landlord's interest, in another case it may be the tenant's interest and in another case it may be licensee's interest. So, when the plaintiff comes to Court as a Mutwalli and his interest is to be valued, it is only reasonable to say that it is the market‑value of the Mutwalli's interest, which forms the basis. That is what was decided in Hafiz Md.'s case." It would appear from the above decision that the Calcutta High Court was of the view that valuation for eviction of alicensee for the purpose of Court‑fees has to be made under section 7 (v) but the market value of the interest cannot be the same as that in the case of a full owner. It must be remembered that Calcutta High. Court had no provision like section 7 (xii) of the Act before it. Section 7(xii) has been added to the Court Fees Act by Ordinance No. LII of 1962 and reads as follows:‑ "7 (xii). 'In suits not expressly provided for in this section, according to the value claimed, but such value shall not be less then a value which would attract a court‑fee of less than fifteen rupees." We do not know what View the Calcutta High Court would have taken if such a provision was available to them. But it is clear that necessity for a residuary section in which cases not covered by those enumerated in section 7 was felt and the Legislature has supplied the same in Pakistan. In view of the legislation in ' Pakistan, the decision of the Calcutta High Court or ‑any other High Court than that of Pakistan could not be quite relevant. The learned Munsif has, in my opinion, given the correct enunciation of the legal position. The case of the plaintiff with limited interest seeking to evict a licensee is not covered by any of the provisions enumerated in section 7 specifically. In my opinion, therefore, the present case is governed by section 7,(xii) of the Court‑Fees Act. In these circumstances the rule should be discharged with costs. The Rule is discharged with costs. K. B. A. Rule discharged.