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2009 DIGILAW 1194 (MP)

Abdul Hussain v. Mansoor Ali

2009-10-13

ARUN MISHRA, S.A.NAQVI

body2009
ORDER Arun Mishra, J. 1. In the instant writ petition order dated 10-7-07 has been assailed which has been passed by Addl. District Judge, Burhanpur in C.S. No. 23-A/07. Application under Order 7 Rule 11, CPC has been considered by the Trial Court. Trial Court has ordered as possession has been sought from the licensee after termination of the licence, it would be necessary to make the valuation of the property on the market rate and make the payment of Court fees accordingly. Final order under Order 7 Rule 11(b), CPC has not been passed. Plaintiff has assailed the aforesaid interlocutory order in the instant writ petition. 2. Facts in short giving rise to the instant writ petition are that plaintiff has filed the suit for mandatory injunction valuing it at Rs. 52,000/-. It has been averred that the defendants were not having any right, title or interest in the house with effect from 31-1-1917. There is pleading with respect to C.S. No. 6-A/49 in which a compromise decree was passed on 17-4-1961. The defendants were in occupation as licensee. They were asked to handover the vacant possession, but it was not handed over, ultimately the licence was terminated on 31-8-05 and defendants were required to vacate the accommodation. It is further submitted that defendant Nos. 1 to 4 had prayed 10 months' time to deliver vacant possession, but they failed to handover the vacant possession, ultimately registered notice was served on 2-4-07 to revoke the licence and to handover the vacant possession by 30th April, 2007, suit was filed on 19-5-07. 3. An application under Order 7 Rule 11, CPCwas filed by defendants to direct valuation to be made at Rs. 25,32,170/- and to make payment of Court fees of Rs. 2,32,373/-, application has been allowed by the impugned order, aggrieved thereby writ petition has been preferred. 4. Shri I. Hussain, learned Counsel appearing for the petitioners has submitted that licensee is required to surrender the possession in case suit has been filed expeditiously after revocation of licence, in such circumstances the plaintiff is free to value the suit under Section 7(iv)(d) of Court Fees Act. Provision of Section 7(v) of the Court Fees Act is not applicable which requires ad valorem Court fees to be paid in case there is more than reasonable lapse of time in filing of the suit after revocation of the licence. Provision of Section 7(v) of the Court Fees Act is not applicable which requires ad valorem Court fees to be paid in case there is more than reasonable lapse of time in filing of the suit after revocation of the licence. In the instant case, licence was revoked on 2-4-07 with effect from 30th April, 2007 and thereafter suit was filed on 19-5-07. Learned Counsel has placed reliance on a decision of Apex Court in Sant Lal Jain v. Avtar Singh AIR 1985 SC 857 , Th. Milka Singh and Ors. v. Th. Diana and Ors. AIR 1964 J&K 99 , Minister of Health v. Bellotti All England Law Reports 238, Sardar Paramjeet Singh and Ors. v. Prabhat Kumar Shrivastava and Anr. 1996 MPLJ 339 , Ayissa Umma v. Ami 1990 (1) KLT 98 and Smt. Saraswati @ Jaya Bichpuria v. Smt. Archana Bichpuria 2007 (4) M.P.H.T. 131 . 5. On the other hand, Shri Avinash Jargar, learned Counsel appearing for respondents has placed reliance on a decision in Jiyajeerao Cotton Mills Ltd. v. Gokulchand Pande AIR 1956 Madhya Bharat 47. 6. The decision of Apex Court in Sant Lal Jain v. Avtar Singh (supra), is clear in this regard in which the Apex Court has laid down thus: 6. Now the parties are bound by the following factual findings recorded by the learned Additional District Judge in the first appeal, namely:-- (1) that the appellant who had become the sole proprietor of M/s. Jain Motors in 1967 though at the time of the lease of the property by the original owner Lt. Col. Sadan Singh to M/s. Jain Motors in 1963 he was only one of its partners, was the lessee of the property; (2) that the respondent had become a licensee of the suit shed under the appellant when the appellant was in possession of the whole of the demised premises, including the suit shed as tenant under the original owner; (3) that the licence in favour of the respondent had been revoked before the institution of the present suit, and (4) that subsequent to the decision in the first appeal on 7-12-1978 the respondent had purchased the entire property from the original owner by a sale-deed dated 27-8-1979. In these circumstances, there is no merger of the lease of the whole property by its original owner in favour of the appellant by reason of the sale of the entire property by the original owner in favour of the respondent or of the licence given by the appellant to the respondent which had been revoked prior to the date of the suit. The lease in favour of the appellant continues, and it is not disputed that under the Act of 1949 referred to above, even the tenant of a vacant land in Patiala town cannot be evicted therefrom except in accordance with the provisions of that Act. In K.K. Verma v. Union of India AIR 1954 Bom 358 , Chagla, C.J. presiding over a Division Bench has observed that in India a landlord can only eject his erstwhile tenant by recourse to law and by obtaining a decree for ejectment. In Milka Singh v. Diana AIR 1964 J & K 99, it has been observed that the principle that once a licencee always a licencee would apply to all kinds of licences and that it cannot be said that the moment the licence is 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 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 this obligation, by way of a 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 Fees Act. 7. 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 Fees 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. This 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, 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. 8. The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the properly instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property subsequently through some other person. He need not do so if he has acquired title to the property from the licensor or from some one else lawfully claiming under him, in which case there would be clear merger. The respondent has not surrendered possession of the property to the appellant even after the termination of the licence and the institution of the suit. The appellant is, therefore, entitled to recover possession of the property. The respondent has not surrendered possession of the property to the appellant even after the termination of the licence and the institution of the suit. The appellant is, therefore, entitled to recover possession of the property. We accordingly, allow the appeal with costs throughout and direct the respondent to deliver possession of the property to the appellant forthwith failing which it will be open to the appellant to execute the decree and obtain possession. The Apex Court has clearly laid down that where a licensor approaches the Court for an injunction within a reasonable time after the licence is terminated, he is entitled to the mandatory injunction. 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, in that case the licensor will have to bring a suit for possession which will be governed by Section 7(v) of the Court Fees Act. Under Section 7(iv)(d) relief for mandatory injunction can be valued as provided but at the same time in case there is non-diligence Court may ask in the facts of the case that property should be valued at the market value and can direct correction of the valuation made in the plaint so as to bring it in compass of Section 7(v) of the Court Fees Act as laid down by the Apex Court in same suit. 7. In Minister of Health v. Bellotti (supra), Court of Appeal has laid down that under the mandatory injunction possession itself can be recovered from trustee. In Th. Milka Singh and Ors. v. Th. Diana and Ors. (supra), it has been laid down that in a case of termination of license by valid notice, suit for injunction directing licensee to vacate is maintainable. In Sardar Paramjeet Singh and Ors. v. Prabhat Kumar Shrivastava and Anr. (supra), the decisions rendered in Sant Lal Jain v. Avtar Singh (supra) and Th. Milka Singh and Ors. v. Th. Diana and Ors. (supra), have been relied upon by a Single Bench of this Court and it has been laid down that suit for mandatory injunction is maintainable directing the licensee to vacate the premises but it is clear from the decision of Apex Court that there has to be reasonable diligence in filing of suit otherwise suit has to be valued as per Section 7(v) of the Court Fees Act. In Ayissa Umma v. Ami (supra), similar view has been taken. The view has taken in Smt. Saraswati @ Jaya Bichpuria v. Smt. Archana Bichpuria (supra), is also the same. Decision in Jiyajeerao Cotton Mills Ltd. v. Gokulchand Pande (supra), was based on unamended provision of Section 7(v) and the view taken by Apex Court in Sant Lal Jain v. Avtar Singh (supra), has to prevail. 8. In the instant case, Shri Jargar has prayed for withdrawal of application filed under Order 7 Rule 11, CPC at this stage and has prayed that he may be permitted to raise this objection in written statement. 9. Trial Court shall decide the objection at the time of final hearing of the suit now as the preliminary objection has been withdrawn. 10. Resultantly, we set aside the impugned order as application filed under Order 7 Rule 11, CPC has been withdrawn. Trial Court to render fresh decision in accordance with law at the time of decision on merits of the case. However, it has to be considered in the light of decision of Apex Court in Sant Lal Jain v. Avtar Singh (supra). 11. Petition stands disposed of.