Delhi District Court
Sh. Radhey Shyam vs Sh. Parmeshwari Dass on 3 August, 2013
IN THE COURT OF SH. CHANDER SHEKHAR,
DISTT. & SESSIONS JUDGE (NORTH),
ROHINI COURTS, DELHI.
CS No. 103/12
Sh. Radhey Shyam
s/o Sh. Johri Mal
r/o B37, CC Colony
Delhi ......Plaintiff
Versus
1. Sh. Parmeshwari Dass
s/o late Sh. Pyare Lal
r/o A18, Saraswati Vihar
Delhi - 110034
2. Sh. Jai Bhagwan
s/o late Sh. R.D. Goel
r/o A18, Saraswati Vihar
Delhi110034 .......Defendants
Date of clarifications : 30.07.2013
Date of decision : 03.08.2013
CS No. 103/12 Page 1 of 14
ORDER
1. This Order shall govern the disposal of the question raised by the defendants regarding maintainability of the present suit as well as pecuniary jurisdiction of this Court and my Ld. Predecessor fixed the matter for arguments on this point vide Orders dated 22.09.2012.
2. The plaintiff filed the present suit for mandatory injunction, permanent injunction and recovery of damages against the defendants averring therein that the plaintiff is the sole and absolute owner of the property bearing no. A18, Saraswati Vihar, Delhi (hereinafter referred to as the suit property) and the defendant is the close relative (real maternal uncle) of the plaintiff. It is further averred that considering the relation with defendant no. 1 and his requirement, the plaintiff allowed him to use the suit property in the capacity of a licensee for the residential purpose with any fee/rent/remuneration, however, subject to only payment of the electricity charges, water charges, house tax and DDA lease charges.
3. It is further averred that after three years, defendant no. 1 along with his wife Smt. Angoori Devi, again approached the CS No. 103/12 Page 2 of 14 plaintiff on the ground of illness for allowing his nephew Sh. Jai Bhagwan (defendant no. 2) to live with defendant no. 1 in the suit property to lookafter defendant no. 1. It is further averred that accordingly the plaintiff allowed defendant no. 2 to live with defendant no. 1 in the suit property as defendant no. 2 was too in close relation of the plaintiff and extended the time period of the defendant from time to time on mutual understanding.
4. It is further averred that after some time, considering his bonafide need and requirement, the plaintiff requested the defendants to vacate the suit property, but the defendants paid no heed to the genuine request of the plaintiff, hence, finding no other option, the plaintiff got issued a legal notice dated 23.12.2011 to the defendants through an Advocate by speed post and courier whereby license of the defendants to use the suit property was terminated and also made it clear that in case the defendants failed to hand over the vacant and peaceful physical possession of the suit property within 30 days from the date of receipt of the legal notice, then they shall be treated as unauthorized occupants and will be liable to pay damages @ Rs. 2000/ per day. The said notice was duly served upon the defendants, but the defendants did not comply the terms of CS No. 103/12 Page 3 of 14 the said legal notice. Hence, the present suit.
5. The plaintiff has valued the suit for the purpose of court fees and jurisdiction as under :
Value for the relief of mandatory injunction Rs. 6,92,130/ Value for the relief of permanent injunction Rs. 130/ Damages/mesne profit @ Rs. 2000/ per day w.e.f. 01.02.12 to 19.02.12 Rs. 96,000/
6. The plaintiff, in the present suit, has prayed for a decree of mandatory injunction against the defendants thereby directing the defendants, their heirs, successors, agents, nominees, representatives etc. to hand over the vacant and peaceful physical possession of the suit property as shown in red colour in the site plan. The plaintiff has further prayed for a decree of permanent injunction against the defendants thereby restraining the defendants, their heirs, agents, attorneys, servants, successors, representatives, assignees, nominees or any other person acting on their behalf from selling, transferring, letting, mortgaging, alienating, gifting, parting with possession or creating 3rd party interest in respect of the suit property. The plaintiff has further prayed for a monetary decree against the defendants thereby directing the defendants to pay Rs. 88,000/ to the plaintiff on account of damages along with pendente CS No. 103/12 Page 4 of 14 lite and future damages @ Rs. 2000/ per day w.e.f. 01.03.2012 till the date of handing over the possession of the suit property.
7. Defendant no. 1 filed the written statement wherein it is stated that the value of the suit property is in crores of rupees, therefore, this Court has no pecuniary jurisdiction to try and entertain the present suit. It is also stated in the WS that the present suit has not been correctly valued for the purpose of court fees and jurisdiction. It is further stated that the plaintiff has claimed titled/ownership in the entire property, hence, the plaintiff is liable to value the suit for the purposes of court fees and jurisdiction on the entire property which is more than Rs. 1 crores, accordingly, the plaintiff is liable to pay the court fees on the advalorem basis on the market value of the entire property, apart from other objections.
8. It is further stated in the WS that the plaintiff is aware that he is left with no interest in the property and defendant no. 1 is living as owner in his own rights. It is further averred that defendant no. 1 paid the money to the plaintiff and also constructed the suit property, made additions, alterations, improvement of permanent nature, which are in the knowledge of the plaintiff and no objection was raised by the plaintiff in making the said CS No. 103/12 Page 5 of 14 constructions in the suit property. It is further stated that the plaintiff was working as a Teacher and informed defendant no. 1 that the suit property can be registered in his name and other connections as the lease happened to be in his name. It is further stated that the plaintiff always acknowledged and admitted and also represented that defendant no. 1 is the owner of the suit property. It is further stated that defendant no. 2 is living as a tenant under defendant no. 1 in a portion of the suit property and not in the manner as alleged by the plaintiff in the plaint. It is denied by defendant no. 1 in his WS that the plaintiff allowed defendant no. 2 to live in the suit property with defendant no. 1 and extended the time period time to time on mutual understanding, as claimed. It is further stated that no extension was given or claimed on the ground of relationship.
9. Defendant no. 2 also filed the written statement wherein it is stated that defendant no. 1 let out the suit property as the owner as well as landlord and he has always been claiming to the public at large that he is the owner of the suit property and he has right to let out the suit property. It is further stated in the WS by defendant no. 2 that the present suit has not been valued properly for the purposes CS No. 103/12 Page 6 of 14 of court fees and jurisdiction, hence, this Court has no jurisdiction to try the same.
10. The plaintiff filed the separate replications to the written statements of defendant nos. 1 & 2 and denied the contentions raised by the defendants in the WSs and reaffirmed those as stated in the plaint.
11. My Ld. Predecessor vide ordersheet dated 13.08.2012 fixed the case for arguments on the maintainability of the suit as well as on the application under Order XXXIX Rule 1 & 2 r/w Sec. 151 CPC for 22.09.2012, however, vide Order dated 22.09.2012, heard the part arguments on the point of maintainability of the suit as well as pecuniary jurisdiction of this Court. In furtherance thereof, Ld. Counsels for the parties have addressed the arguments on the point of maintainability of the suit as well as payment of court fees and accordingly, pecuniary jurisdiction of this Court.
12. Ld. Counsel for the plaintiff submitted that the defendants are the licensee in the suit premises, hence, suit for mandatory injunction is maintainable and this Court has the pecuniary jurisdiction to try and entertain the present suit in view of Sec. 7(iv)
(d) of the Court Fees Act. On the other hand, Ld. Counsel for the CS No. 103/12 Page 7 of 14 defendant no. 1 submitted that the defendant is not a licensee, but is the owner of the suit property, hence, the suit for mandatory injunction is not maintainable and the plaintiff ought to have filed the suit for possession and should have valued the suit for the purposes of court fees and jurisdiction on the entire value of the property which is more that Rs. 1 crore and the plaintiff is liable to pay the court fees on advalorem basis on the market value of the suit property.
13. This Court is conscious of the fact that if a case raises triable issue, then it cannot be rejected without a trial. This Court is also conscious of the fact that while determining the court fees, Court has only to see only the allegations in the plaint. It has not to find whether there is enough matter to prove facts alleged. For deciding the question, the plaint should be read as a whole, substance and not mere form has to look into, substance to be gathered from tenor and terms of the plaint ignoring pendentic approach.
14. In this case, the plaintiff has stated that the defendants are the licensees in the suit premises and has fixed the court fees and the law in this regard is well settled. The Hon'ble High Court in the CS No. 103/12 Page 8 of 14 matter of Sham Lal vs. Ramesh Kumar, reported in 1971 RLR (Note) 65, has been pleased to hold as follows :
"The law is well settled that u/s 7(iv)(d) of the Court Fees Act in a suit to obtain injunction the discretion is given to the plaintiff to value the relief and pay the court fees accordingly and a local amendment made in the law has provided that the court fees paid in such a suit shall be not less that Rs. 13/. Hon'ble Supreme Court in Sthappa Chettiar vs. Ramanathan, reported in AIR 1958 SC 245 and Hon'ble Punjab High Court in Jaikishan Das vs. Babu Ram, reported in 1967 PLR (D) 52, have held that for determining the question of court fees, only the plaint should be looked into and the pleas in the WS should be ignored. A suit for mandatory injunction directing a licenseedefendant to vacate the premises is maintainable in view of Pooran Chand vs. Malik Mukhbain Singh, reported in 1963 PLR 490".
15. Similarly, the law has been reiterated in the matter of Smt. Saraswati vs. Smt. Archana Bichpuria, reported in AIR 2008 (NOC) 130 (MP), wherein it is held that possession of the defendant was in the capacity of a licensee. The licensee is neither a tresspasser nor a tenant. Suit for mandatory injunction by the plaintiff directing the defendant/licensee to surrender and give vacant possession of the suit premises to the plaintiff falls within the purview of Sec. 7(iv)(d) of the Court Fees Act and the plaintiff CS No. 103/12 Page 9 of 14 can put his/her own valuation and it is not necessary for him/her to pay the court fees on the market value of the suit property. Similarly, in the matter of Milka Singh vs. Diana, reported in AIR 1964 J&K 99, Hon'ble Mr. Justice Murtaza Fazal Ali has been pleased to observe as under :
"After the termination of the license, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction u/s 55 of the Specific Relief Act. We might further mention that even under English Law, a suit for injunction to evict a licensee has always been held to be maintainable......".
16. In the matter of Sant Lal Jain vs. Avtar Singh, reported in AIR 1985 SC 857, it is held that the suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, the appellant should not be denied the relief merely because he had couched the plaint in terms of a suit for mandatory injunction. In the matter of Sant Lal Jain (Supra) while relying upon the observations in the matter of Milka Singh vs. CS No. 103/12 Page 10 of 14 Diana, reported in AIR 1964 J&K 99, it is held that against a licensee, a suit for mandatory injunction was maintainable and suit for possession was not required to be filed. The Hon'ble Supreme Court in the matter of Sant Lal Jain (Supra) affirmed the principles of law laid down by the Full Bench of the Jammu & Kashmir High Court. It is held in the matter of N. Kirpal Singh (since deceased) vs. S. Harchan Singh (since deceased) in RSA No. 38/2000 decided on 15.11.2010, that suit for mandatory injunction is maintainable against the licensee. In the matter of Hasan Ali vs. Akbari Begum @ Akbari Hajjan, reported in 133(2006) DLT 26, it was held that the suit for mandatory injunction was maintainable.
17. Sec. 7(iv)(d) of the Court Fees Act permits the plaintiff in a suit for injunction to value the same at the amount deemed appropriate by the plaintiff. Sec. (v) relates to the suits for possession and requires such suits to be valued according to the market value of the property.
18. However, so far as the Judgment in the matter of Ashok Chaudhary vs. Dr. (Mrs.) Inderjit Sandhu, reported in 1998(47) DRJ (DB), relied upon by defendant no. 1, is concerned, I would like to mention here that in the matter of Ashok Chaudhary CS No. 103/12 Page 11 of 14 (Supra), I do not find any mention of the Judgment of Hon'ble Supreme Court in Sant Lal Jain (Supra). Hon'ble Supreme Court in the matter of Sant Lal Jain (Supra) affirmed the principles of law laid down by the Full Bench of the Jammu & Kashmir High Court wherein it is held that against a licensee, a suit for mandatory injunction was maintainable and suit for possession was not required to be filed. It was also held in the matter of Hori Lal vs. Sarwan Kumar, reported in (1992) 46 DLT 173, that upon revocation of license to occupy a property, a suit for mandatory injunction was maintainable. The said view of the Single Judge was affirmed by the Division Bench in the matter of Prabhu Dayal vs. Roop Kumar, reported in AIR 2005 Delhi 144. It was held in the matter of Punjab Exchange vs. Rajdhani Grains Ltd., reported in 1975 RLR 485, that if the plaint is for a mere injunction, plaintiff can value the relief as he likes.
19. The Hon'ble Supreme Court in Joseph Severance vs. Benny Mathew, reported in 2005(7) SCC 667 in para 7 observed as under :
"A licensee's occupation does not become hostile possession or the possession of a trespasser the moment CS No. 103/12 Page 12 of 14 the license comes to an end. The licensor has to file the suit with promptitude and if it is shown that within reasonable time a suit for mandatory injunction has been filed with a prayer to direct the licensee to vacate the premises the suit will be maintainable".
20. In this case, notice was issued on 23.12.2011 and the suit was filed on 20.03.2012 which demonstrates that the plaintiff has filed the suit with promptitude and within reasonable time.
21. Sec. 7(iv)(d) of the Court Fees Act permits the plaintiff in a suit for injunction to value the same at the amount deemed appropriate by the plaintiff. Hence, in view of the above discussions, I am of the affirmed view that the suit for mandatory injunction in view of the averments made in the plaint, is maintainable. Accordingly, I am of the view that the plaintiff has valued the present suit properly as deemed to be appropriate, in view of Sec. 7(iv)(d) of the Court Fees Act for the relief of mandatory injunction and this Court has the pecuniary jurisdiction to try and entertain the present suit.
22. However, so far as the defence of defendant no. 1 is concerned that defendant no. 1 is the owner of the suit property and defendant no. 2 is a tenant in a portion of the suit property, such a defence needs full dress trial which shall be adjudicated upon only CS No. 103/12 Page 13 of 14 after the framing of the proper issues and leading evidence by both the parties.
Both the above points are accordingly decided.
Announced in the open Court
today i.e. 03.08.2013 (CHANDER SHEKHAR)
Distt. & Sessions Judge (North)
Rohini Courts, Delhi
CS No. 103/12 Page 14 of 14