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2005 DIGILAW 898 (RAJ)

Puranmal Modi v. Raj. Investors

2005-03-23

DALIP SINGH

body2005
Judgment Dalip Singh, J.-This second appeal has been filed by the defendant-appellant against the Judgment and decree dated 112.2000 passed by the learned Additional District Judge No. 5, Jaipur City, Jaipur whereby the learned lower appellate Court confirmed the Judgment and decree passed by the learned trial Court on 24.07.1997 for mandatory injunction against the defendant-appellant. 2. The facts giving rise are that defendant-appellant was an employee of the plaintiff-respondent and while being in the employment of the plaintiff , he was given a residential accommodation which is the property in dispute as a license. The services of the defendant-appellant were terminated and his license to reside in the said residential premises was also terminated by a notice dated 10.12.1990. He was asked by the aforesaid notice to hand over the vacant residential premises on or before 01.01.1991. Since, the defendant-appellant failed to handover the vacant possession of the premises, the plaintiff-respondent filed a suit for mandatory injunction directing the defendant-appellant to handover the vacant possession of the residential apartment which is the property in dispute. 3. The learned trial Court decreed the suit directing the defendant-appellant to handover the property in dispute to the plaintiff-company and further allowed the mesne profit at the rate of Rs. 1,500/-per month. Being aggrieved by the aforesaid Judgment and decree, defendant-appellant preferred an appeal and the learned lower appellate Court by its impugned Judgment dated 112.2000 affirmed the aforesaid findings passed by the learned trial Court and confirmed the Judgment and decree passed by the appellate Court. Consequently, this appeal under Section 100 CPC. The principal submission and the substantial question of law which the learned Senior Counsel Shri A.K. Bhandari has urged is that the suit for mandatory injunction was not maintainable and the plaintiff-respondent was not entitled to the recovery the possession without filing a suit for possession and in a suit for mandatory injunction, no decree could be granted. In support of the aforesaid submission, learned Counsel appearing for the appellant relied upon the Judgment of this Court in the case of Shyam Lal vs. Sohan Lal, reported in AIR 1979 Raj. 205 , wherein while distinguishing the Judgment of Jammu and Kashmir High Court in the case of Th. Milka Singh vs. Th. In support of the aforesaid submission, learned Counsel appearing for the appellant relied upon the Judgment of this Court in the case of Shyam Lal vs. Sohan Lal, reported in AIR 1979 Raj. 205 , wherein while distinguishing the Judgment of Jammu and Kashmir High Court in the case of Th. Milka Singh vs. Th. Diana, reported in AIR 1964 J&K 99 , a learned Single Judge of this Court held that prayer for mandatory injunction for vacating the house, in fact, tantamounts to asking for possession and Court fee was liable to be paid by the plaintiff treating the same to be a suit for possession of immovable property and not on the basis of a suit for injunction. The matter before the learned Single Judge in that case came up in revision against the order passed by the trial Court directing the plaintiff to pay the ad valorem Court fee on the market value of the house in dispute. 4. The submission of the learned Counsel for the appellant was two fold. Firstly, the Court fee paid treating the suit as a suit for mandatory injunction was insufficient as well as that the suit for mandatory injunction seeking a direction against the defendant to handover the vacant possession was not maintainable and, in fact, a suit for possession ought to have been filed. 5. In response to the aforesaid, learned Counsel for the respondent has submitted that it was in the facts and circumstances where the defendant was the employee of the plaintiff and whose license to reside in the premises had been terminated on the termination of employment. The right of defendant became extinguished and on the expiry of the period of notices, the plaintiff-employer was entitled to file the suit for permanent mandatory injunction. In this behalf , learned Counsel for the respondent has invited my attention to the case of Sant Lal Jain vs. Avtar Singh, reported in AIR 1985 SC 857 . On the basis of the aforesaid Judgment , learned Counsel for the plaintiff-respondent has submitted that the view taken by this Court in Shyam Lals case while dissenting with the Judgment of J&K High Court in Th. Milka Singhs case cannot be accepted in view of the Judgment of their Lordships of the Supreme Court whereby their Lordships have affirmed the view taken by the J&K High Court in Th. Milka Singhs case cannot be accepted in view of the Judgment of their Lordships of the Supreme Court whereby their Lordships have affirmed the view taken by the J&K High Court in Th. Milka Singhs case. He has invited my attention to paragraphs 6,7 and 8 of the said Judgment of the Honble Supreme Court wherein at paragraph 6 on page 859, their Lordships have observed as follows:- "In Milka Singh vs. Diana, AIR 1964 J&K 99 , it has been observed that the principle that once a licencee always a licensee would apply to all kinds of licences and that it cannot be said that the moment the licence is terminated, the licensees 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 the 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 their obligation by way of mandatory injunction under Section 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 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 in that case the licensor will have to bring a suit for possession which will be governed by Section 7(v) of the Court-fess Act." 7. In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief . Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. 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 in possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction." 6. In this view of the matter, in the light of the pronouncement of their Lordships of the Supreme Court, the view taken by this Court in Shyam Lals case (Supra) cannot be accepted and the present suit for mandatory injunction which was filed on 02.01.1991 on the very next day on which the defendant licencee was required to vacate the premises i.e. 01.01.1991. The aforesaid principles which have been laid down by their Lordships of the Supreme Court clearly apply in this case. As there was no delay at all on the part of the plaintiff to have filed the suit. Therefore, the contention of the appellant based upon the Judgment of this Court cannot be accepted as the question having been settled by the authoritative pronouncements of the Honble Supreme Court in Santi Lal Jains case. 7. Since, the Honble Supreme Court has very categorically held that suit for mandatory injunction was maintainable, as such, as to what is the Court fee to be paid will also be covered by the nature of the suit which is in the instant case a suit for mandatory injunction and, as such, the Court fee which has been paid treating the suit as a suit for mandatory injunction is in accordance with law and no fault can be found with same. It may also be stated here that question relating to insufficiency of the Court fee cannot be allowed to be raised by the defendant which is settled proposition of law as laid down by their Lordships of the Supreme Court Sri Rathnavarmaraja vs. Smt. Vimla, reported in AIR 1961 SC 1299 and by the learned Single Judge of this Court in the case of Khema and Ors. vs. Shri Bhagwan & Ors., reported in 1994 (2) RLW14. 8. It may also be stated here that the learned Counsel for the respondent has also cited the case of Prabirendra Nath Nanday and Another vs. Narendra Nath Nanday reported in AIR, 1958 Calcutta 179, where learned Single Judge of Calcutta High Court has held that a suit by owner against licensee for mandatory injunction directing him to vacate premies on termination of license is maintainable. A similar view has been taken by Allahabad High Court in the case of Ajab Singh vs. Shital Puri (deceased by LRs), reported in AIR 1993 Allahabad 138 wherein the Allahabad High Court has held that after the termination of the licence, a suit by the owner for restoration of possession was maintainable and the Court fee to be paid would be that which is applicable to a suit for injunction and not one which is applicable in the case for suit for possession. The learned Judge of the Allahabad High Court in Ajab Singhs case (Supra) relied upon the Judgment of their Lordships in the case of Sant Lal (Supra). 9. In view of the aforesaid, in the result, the question raised by the learned Senior Counsel for the appellant having been conclusively decided by the authoritative pronouncement of the Honble Supreme Court and subsequently having been followed by the Allahabad High Court no substantial question of law is involved in this appeal and the same is hereby dismissed. The appeal having been dismissed, the stay application is also dismissed. 10. There shall be no order as to costs.