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2012 DIGILAW 3407 (MAD)

P. Anandhavalli v. V. Ranjith

2012-08-01

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 27.04.2012 passed in O.S.S.R.No.17957 of 2012 by the learned I Asst. Judge, City Civil Court, Chennai, this civil revision petition is focussed. 2. Heard the learned counsel for the petitioner. 3. The learned counsel for the petitioner would detail and delineate that even without numbering the plaint as O.S., simply it was returned with the following endorsement, "The above suit is filed by the plaintiff for mandatory injunction directing the defendant to vacate the portion permitted to occupy in the suit property. The plaintiff had paid court fees under Section 27(C) of the T.N. Court Fees and Suit Valuation Act 1955. Relying the Judgments in "1995 TLNJ 217, AIR 1984 Kerala 224" in which it was held that the suit for Mandatory injunction lies after revocation of the license and Court fee payable under Section 27 (C) for permanent injunction is proper. In a suit for injunction where the relief sought is with reference to any immovable property where the plaintiff alleges that his title to the property is denied and to where an issue to frame regarding the title to the property the fee shall be computed on one half of the market value of the property or on Rs.300/- whichever is higher as per Section 27 (a) and in any other case as per Section (c) fee shall be computed on the amount at which the relief sought is valued in the plaint. Though the plaint averments states that the defendants are in permissive occupation in the suit property, but the defendants in their reply notice dated 14.12.2011 marked as Doc.No.3 had categorically denied the title of the plaintiff in the suit property. Hence issue has to be framed with regard the plaintiff's title in the suit property. If that so the plaintiff ought to have filed the above suit for declaration of title and court fee to be paid on the market value of the suit property. The Judgments referred by the plaintiff applies only when the defendants are in possession of the suit property on the basis of license. Hence, the plaint is returned for necessary compliance. Time : One month. Call on 05.06.2012." after hearing the learned counsel for the petitioner. 4. Being aggrieved by and dissatisfied with the same, this revision is focussed. 5. The Judgments referred by the plaintiff applies only when the defendants are in possession of the suit property on the basis of license. Hence, the plaint is returned for necessary compliance. Time : One month. Call on 05.06.2012." after hearing the learned counsel for the petitioner. 4. Being aggrieved by and dissatisfied with the same, this revision is focussed. 5. The perusal of the plaint would reveal that the plaintiff has approached the Court with a specific case of his own that the defendant was permitted to enter into the premises only as a licensee and that licence was cancelled subsequently, and hence the suit was framed in that manner. It is for the plaintiff to prove the said fact. In the event of the plaintiff not able to prove that the defendant entered into the suit property as a licensee, then the plaintiff has to fail in the case as such. Simply because in the pre litigation notice the defendant claimed share in the property, that it does not mean that the plaintiff has to accordingly change his case. 6. Trite, the proposition of law, is that a plaintiff has to stand or fall on his own pleading. After numbering the plaint if the defendant enters appearance in response to the suit summons, it is open for him to raise preliminary objections; whereupon under Order XIV Rule 1 of CPC, even preliminary issues could be framed and decided. Hence the return of the plaint with the above endorsement was untenable and accordingly the lower Court is directed to number the O.S., if it is otherwise than in order, and process it as per law.