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2011 DIGILAW 602 (UTT)

Praveen Kumar Sharma v. Sudhanshu Mishra Pathak

2011-09-23

B.S.VERMA

body2011
ORDER : Heard learned counsel for the parties. 2. Learned counsel for the parties have agreed to dispose of this writ petition at the admission stage. 3. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned judgment and order dated 31-5-2011 passed by Additional District Judge/F. T. C. V, Dehradun in Misc. Civil Appeal No. 165/2010, Sudhanshu Mishra Pathak v. Praveen Kumar Sharma, whereby the order dated 30-12-2010 passed in suit No. 627/2009, by which the issue regarding valuation of Court fees was decided, has been set aside. 4. Brief facts of the case, as narrated in the writ petition, are that respondent plaintiff filed a suit No. 627/2009 against the petitioner-defendant before the Court of Civil Judge (S.D.), Dehradun, for a decree of mandatory injunction directing the petitioner to deliver the possession of the property in question to the respondent plaintiff and further sought decree for damages for illegal use and occupation of the property and also sought decree for perpetual injunction restraining the petitioner from interfering in peaceful possession, use and enjoyment of respondent over the property in question. The plaintiff respondent alleged that Ms. Manjula Devendra, sister of the respondent, was in permissive possession of the property in question on behalf of the plaintiff. The respondent plaintiff revoked the permission granted to Ms. Manjula Devendra and filed a suit No. 226/2001 for possession of the property which was consequently decreed vide judgment and decree dated 16-2-2004 and the said decree was put into execution and consequently the decree was executed on 24-5-2008 and possession was delivered to the respondent-plaintiff. On 25-5-2008, Ms. Manjula Devendra dispossed the plaintiff from property in question and entered the property and thereafter delivered the possession to the petitioner-defendant. Thereafter the respondent-plaintiff asked the petitioner defendant to vacate the premises and consequently filed a suit No. 627/2009 against the petitioner defendant. 5. Written statement was filed by the petitioner-defendant in which it was averred that the plaintiff-respondent has undervalued the suit and that the Court fees paid is insufficient. 6. After exchange of the pleadings, the trial Court framed issues No. 1, 2 and 5. Issue No. 5 with regard to undervaluation and deficiency of Court fee, framed by the trial Court, was decided as preliminary issue. 7. 6. After exchange of the pleadings, the trial Court framed issues No. 1, 2 and 5. Issue No. 5 with regard to undervaluation and deficiency of Court fee, framed by the trial Court, was decided as preliminary issue. 7. After hearing both the parties; the plaintiff as well as the defendant, the trial Court came to the conclusion that since it is a suit for possession of a trespasser and not of the licensee, therefore, the Court fees is payable as per market value as per Section 7(v)(II) of the Indian Court Fees Act (applicable to State of U. P. as well as Uttarakhand) and consequently directed the plaintiff respondent to amend the plaint and value the suit at the market value and to pay the deficit Court fee. Aggrieved by the order of the trial Court, the respondent-plaintiff preferred Misc. Civil Appeal. Learned appellate Court allowed the appeal and set aside the order of the trial Court and held that the licensee Smt. Manjula had put the petitioner-defendant in possession therefore the suit for mandatory injunction is maintainable against the defendant petitioner and the Court fees paid is sufficient by relying upon the judgment of Apex Court in case of Sant Lal Jain v. Avtar Singh AIR 1985 Supreme Court 857). Feeling aggrieved by the order of the appellate Court, the petitioner defendant has filed this writ petition before this Court. 8. With regard to the case of Sant Lal Jain, the learned trial Court has given a categorical finding that in the case at hand the said judgment of the Apex Court is not applicable while the appellate Court has relied upon the same without scrutinising the fact of the case of Sant Lal Jain. 9. I have perused the judgment (supra) of the Apex Court and also perused the other papers available on record. 10. In the case of Sant Lal Jain (supra), the licensee had put the third person in possession, during the pendency of the suit. Learned counsel appearing for the petitioner has submitted that in the Jain— s case the suit was between the licensor and licensee but in the case at hand it is not a suit between a licensor and licensee. The petitioner-defendant is a third person. He was never given licence by the plaintiff. This fact is not disputed. 11. Learned counsel appearing for the petitioner has submitted that in the Jain— s case the suit was between the licensor and licensee but in the case at hand it is not a suit between a licensor and licensee. The petitioner-defendant is a third person. He was never given licence by the plaintiff. This fact is not disputed. 11. By a perusal of the plaint, it reveals that the plaintiff respondent had delivered the possession of the property in execution of the decree through the Court on 24-5-2008. According to the respondent-plaintiff, on 25-5-2008 Ms. Manjula Devendra illegally dispossessed the plaintiff from the said property without his consent and without adopting the due process of law with the help of certain unsocial elements and alleged that Smt. Manjula Devendra handed over the possession to the petitioner -defendant illegally without any right. 12. From the plaint, it is clear that since Smt. Manjula Devendra had already been evicted, therefore, on that day, the relation of licensor and licensee came to an end. 13. Learned appellate Court has wrongly interpreted the provisions of the Court Fees Act. The learned trial Court has rightly held that the Court fee is payable on the market value of the property in question in view of the provisions u/S. 7(v)(II) of the Court Fees Act. Impugned order of the appellate Court suffers from perversity and illegality and is liable to be set aside. 14. The writ petition is allowed. Order dated 31-5-2011 passed by Additional District Judge/F.T.C.V, Dehradun, is set aside. However, it is clarified that the plaintiff respondent would be at liberty to amend the valuation clause as per the market value. So far as the market value is concerned, the trial Court shall decide the issue pertaining to the market value, afresh, after amendment, if the petitioner-defendant raises objection on the market value. Petition allowed.