Delhi District Court
Ms. Manjit Kaur vs Sh. Narender Singh on 8 February, 2021
THE COURT OF SH. ANKIT KARAN SINGH,
CIVIL JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI
CS SCJ NO. 998/18
Date of institution of suit : 14.08.2018
Date of reservation of Judgment : 04.02.2021
Date of passing of Judgment : 08.02.2021
Ms. Manjit Kaur
W/o Sh. Ranjit Singh
R/o WZF79, Ground Floor
Gali No. 3A, Virender Nagar
New Delhi.
.................Plaintiff
Vs.
1.Sh. Narender Singh
S/o Sh. Ranjit Singh
R/o WZF79, 3rd Floor
Gali No. 3A, Virender Nagar
New Delhi.
2.Mrs. Bhupinder Kaur
W/o Sh. Narender Singh
R/o WZF79, 3rd Floor
Gali No. 3A, Virender Nagar
New Delhi.
..............Defendants
SUIT FOR POSSESSION, MESNE PROFIT
AND PERMANENT INJUNCTION
JUDGMENT
CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 1/20 PLAINTIFF'S VERSION
1. Brief facts as per the plaint are that plaintiff had purchased the backside portion of a freehold built up property no. F79 ( new number WZF79), area measuring 50 Sq. Yards with all its terrace roof rights out of total area measuring 100 Sq. Yards part of Khasra No. 783 situated in the area of village Tihar, State Delhi, colony known as Virender Nagar, New Delhi58 (hereinafter referred to as 'suit property') from Smt. Kartar Kaur, W/o Sh. Harcharan Singh, R/o WZF79, Virender Nagar, New Delhi58 and plaintiff had made payment of Rs. 8,50,000/ towards sale consideration to the seller, Ms. Kartar Kaur of the property and the sale deed was executed in this regard on 23.08.2010 and the total sale consideration was paid to seller of the suit property by plaintiff out of her savings and by selling her jewellery etc and no money had been taken by the plaintiff from her husband, son or daughter for buying the suit property.
2. It is further pleaded that plaintiff had entered into a collaboration agreement on 03.09.2010 with a builder namely, Sh. Ravinder Singh for the renovation of suit property and it was agreed that the builder will construct the building upto third floor without basement and the area of each floor will be of 50 Sq. Yards each and it was also agreed that after the completion of construction work, the plaintiff will be the owner of ground floor without roof rights and third floor with roof rights measuring 50 Sq. yards and builder will be the owner of first floor and second floor measuring 50 Sq. Yards each without roof rights.
3. It is further pleaded that the construction work qua the suit CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 2/20 property completed in time and both the plaintiff and builder took the physical, vacant and peaceful possession of their respective floors.
4. It is further pleaded that in the month of March, 2014, defendant no.1 and 2 came to the plaintiff and requested her to allow them to reside on the third floor as licensees for sometime and gave assurance that they will vacate the third floor and hand over the physical and vacant possession thereof as and when the plaintiff will ask them to vacate the suit property. Thereafter they started living on the third floor of the suit property but after some time they started quarreling with plaintiff and hence in the month of February, 2017 plaintiff told the defendants to vacate the suit property but defendants requested for her permission to reside in the property for some more time but not more than a year and the plaintiff allowed them to continue to live on the third floor for a year as the assurance was given to plaintiff and her husband by defendants that they will not quarrel with each other and will live peacefully. However they remained quiet and calm only for sometime and thereafter again started quarreling , hence plaintiff asked them to vacate the suit property but they did not do so.
5. It is further pleaded that plaintiff was constrained to send a legal notice dated 27.3.2018 to defendants despite that they did not vacate the suit property. Hence the present suit has been filed by the plaintiff.
6. By virtue of present suit the plaintiff has prayed for the following reliefs :
(a) Decree of possession directing the defendants to vacate the third floor of property bearing no. WZF79, Gali No. 3A, Virender Nagar, New Delhi and hand over the vacant, physical and peaceful possession to the CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 3/20 plaintiff.
(b) Decree of mesne profits @ Rs. 20,000/ p.m to the plaintiff from May, 2018 till the handing over of suit property.
( c) Decree of permanent injunction directing the defendants not to transfer, alienate or create any third party interest in the suit property.
(d) Any such relief. 7. DEFENDANT'S VERSION
Written statement has not been filed on behalf of defendant no.1. Vide Order dated 13.05.2019 of Ld. Predecessor of this court, the right to file W.S on behalf of defendant no.1 was closed.
8. Written statement has been filed on behalf of defendant no.2 only wherein it is contended that the present suit is undervalued and deficient court fees has been paid by plaintiff. It is further contended that no cause of action arose in favour of plaintiff and plaintiff has not come in the court with clean hands.
9. It is further contended that the suit is bad in its present form and the same is defective because of misjoinder of Sh. Narender Singh (son of plaintiff ) in connivance with, plaintiff has filed the present suit in order to get rid of defendant no.2 and her children.
10. In reply to the merits it is stated that Smt. Kartar Kaur was the mother in law of plaintiff and she had two sons namely, Sh. Ranjit Singh (husband of plaintiff) and Sh. Balvinder Singh (brother in law/devar of plaintiff) and at the time of execution of sale deed Smt. Kartar Kaur was about 83 years of age and was suffering from mental and physical illness and was on wheel chair. It is further stated that Smt. Kartar Kaur was taken to Office of Registrar for the execution of sale deeds in favour of CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 4/20 Ms. Younger son and daughter in law Ms. Manjit Kaur and her LTI was obtained on the documents instead of RTI. It is further contended that the property of Ms. Kartar Kaur was fraudulently snatched from her by her own family members I.e Balvinder Singh (younger son) and plaintiff without paying a single penny to her.
11. It is further contended that plaintiff had not disclosed the mode of payment of alleged consideration of Rs. 8,50,000/ by cheque, DD or cash.
12. It is further contended that even before reconstruction of property defendant no.2 was residing in the suit property since her marriage with Sh. Narender Singh ( defendant no.1).
In rest of the W.S the prayer is made for dismissal of suit.
13. Replication has been filed by the plaintiff wherein it is stated that Smt. Kartar Kaur was the mother in law of plaintiff and she has two sons namely Sh. Ranjit Singh and Sh. Balwinder Singh. It is denied that Smt. Kartar Kaur was mentally and physically ill on the date of execution of sale deeds and the sale deed was executed by her after following the procedures of law. It is stated that defendants were residing in the property prior to the date of purchase of the property in question by the plaintiff alongwith plaintiff and her husband. In rest of the replication the averments made in the plaint are reiterated and contentions raised in the W.S are denied.
14. Vide Order dated 13.5.2019, following issues were framed :
1. Whether the plaintiff is entitled to decree of possession as prayed for ? OPP
2. Whether the plaintiff is entitled to decree of mesne profit as CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 5/20 prayed for ? OPP
3. Whether the plaintiff is entitled to decree of permanent injunction as prayed for ? OPP
4. Whether the plaintiff has not filed proper court fees ? OPD
5. Relief.
15. In order to prove his case plaintiff has examined herself as PW1 and has tendered in evidence her duly sworn in affidavit. Same is Ex. PW 1/A and has relied upon following documents :
1. Copy of sale deed Ex. PW 1/1 ( OSR)
2. Two electricity bills Mark A (colly) 3. Site plan Ex. PW 1/4 4. Legal notice Ex. PW 1/5
16. Besides himself plaintiff has examined aother witness namely Ranjit Singh who has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 2/A.
17. Plaintiff as well as PW2 were crossexamined by Ld. counsel for defendant no.2. Thereafter vide statement made by plaintiff on 19.09.2019, PE was closed and the matter was listed for DE.
18. In defendant evidence, defendant no.2 has examined herself as DW1 who has tendered in evidence his duly sworn in affidavit. Same is Ex. DW 1/A and has relied upon the following documents :
1. Copy of ration card Mark A
2. Photo copy of adhar card of DW1, photo copy of Ex. DW 1/1 adhar card of Ms. Dilpreet Kaur, copy of ( colly) disability certificates of Ms. Dilpreet Kaur CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 6/20 dated 25.1.2016 and 24.04.2017 , copy of adhar card of Sh. Jagjeet singh, copy of adhar card of Ms. Ravneet Kaur
3. Legal notice alongwith envelope Ex. DW 1/ 2 DW1 has been crossexamined by Ld. counsel for plaintiff and thereafter vide separate statement made by defendant no.2, DE was closed.
19. No DE was led on behalf of defendant no.1. Thereafter the matter was listed for final arguments.
20. I have heard final arguments advanced by Ld. counsels for parties and perused the record.
21. It has been argued by Ld. counsel for plaintiff that the defendant no.1 did not appear in this court despite having been duly served, therefore, his defence was struck off.
22. It has been further argued that the defendant no.2 appeared as DW1 in this case and chose not to produce any person as her witness to prove the defence taken in her written statement and defendant no.2 did not take the plea whether her husband has any right in the suit property or she has any right to reside therein. It is further argued that defendant no.2 has admitted during her crossexamination that she has no personal knowledge as to what had happened in the office of Subregistrar or whether the seller of the suit property was the absolute owner thereof and vide 3rd para of crossexamination of DW1, DW1 herself produced the original copy of legal notice in the court. It has been further argued that plaintiff has been able to prove that she is in the exclusive and absolute owner of the suit property by providing the sale deed executed in her CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 7/20 favour and plaintiff has been able to prove that defendants were allowed by her and her husband to reside for sometime in the suit property when the defendants requested them and gave assurance in the month of February, 2017 that they will vacate the suit property within a year.
23. It has been argued on behalf of defendant no.2 that the plaintiff had deliberately concealed this fact that Smt. Kartar Kaur was her mother in law. It has been further argued that the plaintiff had stated in her suit that she had purchased the suit property without any monetary help of any penny from her husband, son or daughter or anybody else in the family. It has been further argued that the plaintiff had stated in para no.5 of her suit that she and her husband had allowed both defendants to reside on the third floor of the suit property as licensee and had also stated in this para that " since the defendant no.1 and 2 never cared for the plaintiff and her husband, therefore they did not have good relations with them at any point of time." It has been further argued that the said affidavit was filed on the same line in which the plaintiff had reproduced the same facts of her suit.
24. It has been further argued that in her crossexamination dated 19.09.2019 at page no.3 the plaintiff had admitted " My son did not use to pay any license amount to me. I am not aware of the meaning of the word "Licensee". In this para the plaintiff had further stated " I do not remember whether I had sent the Legal Notice to my son or to my daughter in law or to both.
25. In support of her contention, Judgements of Hon'ble High Court of Delhi have been filed on behalf of defendant no.2 as under :
1. Ramesh Kumar Bhagenchandka Vs. Mahesh Kumar CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 8/20 Bhagenchandka & ors. decided on 28.03.2014
2. Vinay Varma Vs. Kanika Pasricha & Anr. decided on 29.11.2019
3. Sneha Ahuja Vs. Satisch Chander Ahuja decided on 18.12.20219
26. My issuewise findings and observations are as under :
1. Whether the plaintiff is entitled to decree of possession as prayed for ?
The onus to prove this issue was upon the plaintiff.
The counsel for the defendant no 2 has argued that ownership of plaintiff is not proved as Kartar Singh (mother in law of plaintiff) was brought on wheelchair in Registrar office and the sale deed Ex PW 1/1 bears Left Thumb Impression of Ms. Kartar Singh instead of Right Thumb Impression. Counsel for Defendant no 2 further submits that Ms. Kartar Singh was not in fit state of mind when she executed the sale deed.
27. Ex PW 1/1 being a registered document does not require an attesting witness to be called. Unless its execution is specifically denied by the person by whom it purports to have been executed, no attesting witness is required for proof of Ex PW 1/1. Reference in this regard can be made to Sec 68 of Evidence Act.
28. At the outset, it must be noted that the ld. Counsel for defendant no 2, on being asked, has not shown any rule or case wherein, left thumb impression on a sale deed by female executant would render the sale deed illegal/ unexecutable. Further, Left thumb impression of Ms. Kartar Kaur was duly identified by witnesses : Mr. Balvinder Singh and Mr. Narinder Singh (Defendant no 1). Moreover, no evidence has been led CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 9/20 on behalf of defendant no 2 to show that that Kartar Kaur was not in fit state of mind while executing the Ex PW 1/1. The sale deed was registered on 23.08.2010. Whereas Ms. Kartar Kaur expired in 2013 as per PW1. Defendant no 2 has no locus to challenge the sale deed Ex PW 1/1.
29. Now the question arises whether defendant no 1 and 2 are licensees of plaintiff? Before dwelling into this question lets discuss the law on this point:
S. 52 of the Indian Easements Act defines a licence as:
Where one person grants to another, or to a definite number of other persons, a right to do or continue to do in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.
Sant Lal Jain vs. Avtar Singh (1985) 2 SCC 332 where the Hon'ble Supreme held as follows: "6. ..... In Milkha Singh v. Diana, it has been observed that the principle once a licensee always a licensee would apply to all kinds of licences and that it cannot be said that the moment the licence it terminated, the licensee's possession becomes that of a trespasser. In that case, one of us (Murtaza Fazal Ali, J. as he then was) speaking for the Division Bench has observed:
After the termination of licence, 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 under 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." In view of the above, it is clear that the defendants are licensees. The license has been terminated. The written statement fails to bring out any title or right in the defendants to continue to retain possession.
30. DW1 in her deposition has not claimed any right or interest CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 10/20 in the suit property. She admits that she was staying in the suit property since marriage as it was her matrimonial home. She alleges that legal notice dated 27.03.2018 was only sent to her husband ie defendant no 1 in this case. She further deposes that she has no source of home. She further deposes that she is bringing up three children from defendant no 1 out of which, their daughter Ms. Dilpreet Kaur is mentally disabled. She further deposes that son of the plaintiff makes the life of the defendant no 2 hell by inflicting all types of mental and physical cruelties not only upon her but also upon her mentally retarded daughter.
31. Defendant no 1 and 2 did not show any document to prove their rightful possession in the property. Even before the execution of the sale deed Ex PW 1/1, defendant no 1 and 2 did not have any right to stay in the suit property. Hence, their possession of the suit property since marriage was only permissive. Thus, defendant no 1 and 2 were staying in the suit premises as licensees since the execution of the sale deed PW 1/1.
32. Whether the suit is filed by plaintiff in collusion with the defendant no 1 ie son of plaintiff ?
After issuance of summons, defendant no 1 appeared for the first and the last time on 13.3.2019. No W.S. was filed was defendant no 1 nor did he contest the case. Vide order dated 13.05.2019, the right to file WS of defendant no 1 was closed. Seeing the conduct of the defendant no. 1, it cannot be ruled out, that the present suit is filed by plaintiff in collusion with defendant no 1 to oust defendant no 2 and her children from the suit premises.
CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 11/20
33. The Ld counsel for defendant no 2 has prayed for alternate accommodation in case defendant no 2 is evicted from the suit property. He relied upon following judgments to prove his case:
1. Vinay Varma vs Kanika Pasrich & Anr decided by Hon'ble Delhi High Court on 29 Nov, 2019
2. Sneha Ahuja vs Satish Chander decided by Hon'ble Delhi High Court on 18 Dec, 2019
34. In Vinay Varma vs Kanika Pasricha & Anr CM(M) 1582/2018, Hon'ble Delhi High Court observed that:
"46. However, later decisions of various High Courts have, while giving divergent opinions on the concept of `shared household‟, followed one uniform pattern in order to protect the daughterinlaw and to provide for a dignified roof/ shelter for her. The question then arises as to whether the obligation of providing the shelter or roof is upon the inlaws or upon the husband of the daughterinlaw i.e., the son. Some broad guidelines as set out below, can be followed by Courts in order to strike a balance between the PSC Act and the DV Act:
1. The court/tribunal has to first ascertain the nature of the relationship between the parties and the son‟s/ daughter‟s family.
2. If the case involves eviction of a daughter in law, the court has to also ascertain whether the daughterinlaw was living as part of a joint family.
3. If the relationship is acrimonious, then the parents ought to be permitted to seek eviction of the son/daughterinlaw or daughter/son inlaw from their premises. In such circumstances, the obligation of the husband to maintain the wife would continue in terms of the principles under the DV Act.
4. If the relationship between the parents and the son are peaceful or if the parents are seen colluding with their son, then, an obligation to maintain and to provide for the shelter for the daughterinlaw would remain both upon the inlaws and the husband especially if they CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 12/20 were living as part of a joint family. In such a situation, while parents would be entitled to seek eviction of the daughterinlaw from their property, an alternative reasonable accommodation would have to be provided to her.
5. In case the son or his family is illtreating the parents then the parents would be entitled to seek unconditional eviction from their property so that they can live a peaceful life and also put the property to use for their generating income and for their own expenses for daily living.
6. If the son has abandoned both the parents and his own wife/children, then if the son‟s family was living as part of a joint family prior to the breakdown of relationships, the parents would be entitled to seek possession from their daughterinlaw, however, for a reasonable period they would have to provide some shelter to the daughterinlaw during which time she is able to seek her remedies against her husband."
35. The decision of Hon'ble Delhi High Court in Sneha Ahuja vs Satish Chander Ahuja was upheld by Hon'ble Apex Court vide its judgment dated 15 Oct 2020 wherein Hon'ble Apex Court issued following guidelines :
(i) The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under D.V. Act, 2005.
(ii) The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.
(iii) A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.
(iv) In the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the appellant as well as by the defendant claiming a right CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 13/20 under Section 19 were to be addressed and decided on the basis of evidence, which is led by the parties in the suit.
36. It must be noted that in the abovementioned cases DV Act proceedings were also initiated and pending at appropriate stage. That is not the case in the present case. Hence, the ratio and guidelines are not per se applicable to the present case.
In view of the submission made and to prevent injustice, the plaintiff is held entitled to relief of possession. However, the defendant no 2 shall not vacate the premises until and unless the defendant no 1 sets up alternate matrimonial home.
37. ISSUE 2
2. Whether the plaintiff is entitled to decree of mesne profit as prayed for?
The onus to prove this issue was upon the plaintiff.
The Plaintiff has prayed for mesne profits @ Rs 20,000 per month from May 2018 till vacation of the suit property. The PW1, in para 8 of her evidence, has deposed that defendants came to PW1 in the month of March 2014 and requested PW1 to allow them to reside on the third floor as licensees for some time and gave assurance of vacation of third floor on the request of PW1. PW1, in para 9, further deposed that, the defendants started residing on the third floor along with their children since April, 2014 as licensees only. PW1 further deposed that PW1 told the defendants in February, 2018 to vacate the suit property within a week but they did not vacate the property, then, PW1 sent legal notice dated 26.03.2018 to the defendants. PW1, in para 14, further deposed that PW1 CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 14/20 is incurring losses to the tune of Rs 10,000 pm as the rental income from suit property.
38. At the outset, it must be noted that there was no license agreement between the parties at any point of time. It must further be noted that defendants were residing in the suit property since 2003 i.e. from the date of their marriage till 2010 and since 2014 onwards, as evident from the evidence of PW1 and cross examination of PW1. Hence, the residence of defendants in suit property was permissive in nature with the consent of PW1. As defendant no 2 is the legally wedded wife of the defendant no 1, naturally she will reside wherever is the matrimonial home. One of the ingredients of Sec 52 of Indian Easement Act is "in the absence of such right, be unlawful". It cannot be said that the right of legally wedded wife of Defendant no 1 would immediately become unlawful, so as to fall in the definition of licence, on revocation of such grant of plaintiff. If any mesne profits has to be imposed it has to be imposed upon defendant no 1 as defendant no 2 is merely accompanying her husband defendant no 1 where defendant no 1 sets up the matrimonial home. Further, the notice dated 27.03.2018 (Ex PW ½) was addressed to defendant no 1 only as evident from "Annexure - I". Hence, the termination of license can be imputed with regard to defendant no 1 only. Husband and Wife are not treated as one in law.
39. Further, the plaintiff has not led any evidence in proof of quantum of damages quoted @ Rs 20,000 per month in its prayer. PW1 has merely deposed in para 13 of evidence, that plaintiff is incurring losses to the tune of Rs 10,000 pm as rental income from such a property in the vicinity is not less than that.
CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 15/20
40. In view of the above observations, this court does deem it appropriate to impose damages @ Rs 5,000 per month in favour of plaintiff and against defendant no 1 only from May, 2018 till the date of realization of possession of the suit property by plaintiff.
41. ISSUE NO.3 Whether the plaintiff is entitled to decree of permanent injunction as prayed for ?
The onus to prove this issue was upon the plaintiff.
In view of the above observations and findings, the permanent injunction is granted in favour of plaintiff and against the defendants. The defendants are hereby restrained from transferring, alienating or creating any third party interest in the suit property.
42. ISSUE NO.4 Whether the Plaintiff has not filed proper court fees ?
The onus to prove this issue was upon the defendant.
The ld counsel for the defendant argued that the prayer for possession must be valued at market value and court fees must be paid ad valorem on the market value of the suit property. The counsel for the plaintiff has on the other hand argued that relief of possession is in the nature of mandatory injunction as defendants are merely licensees in the property.
Before deciding this issue, lets discuss the law on this issue first:
CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 16/20 The Court Fees Act Section 7
(iv) In suits--
(d) to obtain an injunction, according to the amount at which the relief sought is valued in the plaint or memorandum of appeal :
In all such suits the plaintiff shall state the amount at which he values the relief sought
(v) In suits for the possession of land, houses and gardens--
according to the value of the subjectmatter; and such value shall be deemed to be-- where the subjectmatter is land, and--
(e) Where the subjectmatter is a house or garden according to the marketvalue of the house or garden:
In Sathapana Chettiar v. Ramanathan, AIR 1958 SC 245, Hon'ble Supreme court laid down that the question of Court fees must be considered in the light of the allegations made in the plaint and this decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits.
In Sant Lal Jain vs Avtar Singh, 1985 AIR 857, 1985 SCR (3) 184, Hon'ble Supreme Court quoting a judgment of another court observed that :
"After the termination of licence, the licensee is under 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 under 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. Where a licensor approaches the court for an injunction within a reasonable time CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 17/20 after the licence is terminated, he is entitled to the injunction. On the other hand, if the licensor causes huge delay the court may refuse the discretion to grant an injunction on the ground that the licensor had not been diligent and is that case the licensor will have to bring a suit for possession which will be governed by s.7 (v ) of the Court Fees Act."
43. Ld counsel for plaintiff relied on the judgment of Hon'ble Delhi High Court in Sunil Sharma and Anr vs Smt. Uma Sharma delivered on 14 March 2014. Wherein Hon'ble Delhi High Court upheld the decision of first appellate court and observed that:
"33. Although the relief claimed in the plaint appears to be a decree for possession, in content what the plaintiff has prayed is for a decree for mandatory injunction to direct the defendants to remove their belongings and to vacate the suit premises.
Such a relief for mandatory injunction is to be valued under the provisions of Section 7(iv)(d) of the Court Fees Act 1870 as has been held by the Hon'ble High Court of Delhi in the case of Puneet Chaddha Vs. B.P. Chaddha reported in CRP 152/09 cited on 01.12.2009. Hence the plaintiff was only required to value her relief for mandatory injunction at Rs.130/ and to affix court fee of Rs.13/ on the same."
7. I do not find any illegality in the judgments of the Courts below, much less a substantial question of law arising because the Supreme Court in the case of Sant Lal Jain Vs. Avtar Singh (1985) 2 SCC 332; which is referred by the first appellate court in para 32 of its judgment; has held that the relief of mandatory injunction is in effect a relief of possession as available against a licencee. Thus the subject suit can be treated as a suit for mandatory injunction and by doing which no illegality has been committed by the first appellate CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 18/20 court because, there is no illegality if a licencee by a mandatory injunction is asked to remove himself from the suit premises in view of the categorical ratio of the Supreme Court in the case of Sant Lal Jain (supra). Both the courts below have not erred in giving findings of pecuniary jurisdiction or with respect to the form of the suit.
44. Ld counsel for the defendant has relied upon Ramesh Kumar Bhagechandka vs Mahesh Kumar Bhagenchandka & Ors (decided on 28 March 2014) by Hon'ble Delhi High Court. It must be noted that suit property of plaintiff is not a joint property and as such the facts of the case in above mentioned are not in pari materia with the present suit.
45. In para 10 of the plaint, the relief of possession is quantified at Rs 130 and the court fees of Rs 13 is paid thereon. The relief of permanent injunction is also assessed at Rs 130 and court fees paid thereon is Rs 13.
46. From aforesaid discussion and observation, it can be seen that plaintiff in the prayer is actually seeking relief of mandatory injunction in the garb of "relief of possession". Hence, the court fees for Prayer A is valued as per relief of mandatory injunction to dispossess the licensees. Thus, prayer A and C is valued correctly. However, the court fees for mesne profits be paid ad valorem as decreed above.
47. RELIEF In view of aforementioned observations and findings, the suit of the plaintiff stands decreed as below :
1. Plaintiff is entitled to decree of possession in respect of suit property no. third floor of property bearing no. WZF79, Gali No. 3A, Virender Nagar, New Delhi however defendant no 2 shall not vacate the premises until and unless the defendant no 1 sets up alternate matrimonial CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 19/20 home.
2. Plaintiff is entitled to decree of damages @ Rs 5,000 per month against defendant no 1 only from May, 2018 till the date of realization of possession of the suit property by plaintiff.
3. Defendants are hereby restrained from transferring, alienating or creating any third party interest in the suit property.
Application U/o 39 Rule 1 and 2 CPC is also disposed of as not pressed for and in view of above findings and observations.
No order as to costs. Decree sheet shall be prepared only after payment of appropriate court fees.
File be consigned to Record Room after due compliance.
Pronounced in the open court ( Ankit Karan Singh) today I.e on 08.02.2021 Civil Judge01(West)/Delhi ANKIT KARAN SINGH Digitally signed by ANKIT KARAN SINGH Date: 2021.02.09 10:09:54 +05'30' CS SCJ No. 998/18 Manjeet Kaur Vs. Narender Singh & Anr. 20/20