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2020 DIGILAW 923 (ALL)

Ahmad Javed v. Parvez Ali Khan

2020-06-02

ANJANI KUMAR MISHRA

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JUDGMENT : Anjani Kumar Mishra, J. 1. Heard Ms: Rupal Agarwal, learned Counsel for the revisionist and Shri Mohd. Asif, Counsel for the opposite party. 2. The instant revision is directed against an order dated 18.11.2019, passed by the Additional Civil Judge (Junior Division), Aligarh in Suit No. 891/2018 on an application under Order VII, Rule 11, C.P.C. filed by the defendant, opposite party. 3. This impugned order directs payment of further Court fees in the suit in accordance with section 7(v), Rule (ii) of the Court Fees Act. Additional, Court fee has been directed to be paid because the revisionist was also seeking relief of possession and for that purpose, Court fees had not been paid. 4. The contention of Counsel for the revisionist is that as per plaint allegations, the opposite party was a licensee, which license had been duly terminated. Therefore, the relief for mandatory injunction was sufficient and no separate decree for possession was required nor has been sought in the suit. The Court fees paid in the suit was therefore, adequate and the directions contained in the order impugned are not justified. 5. Counsel for the revisionist has relied upon the various judgments in support of her contentions, which shall be referred to at the appropriate place, in this judgment. 6. The objection of Counsel for the opposite party is that the order impugned, since, it directs payment, of further Court-fees, is not revisable and is appealable under the provisions of the Court Fees Act. 7. I have considered the submissions made by Counselor the parties and perused the record. 8. In my considered opinion, the impugned order having been passed on an application under Order VII, Rule 11, C.P.C., the same is revisable, also. Having said so since Additional Court-fees Court has been ordered to be paid, the revisionist may also have the remedy of filing an appeal under the provisions of the Court-Fees Act. 9. However, the instant case appears to be one where two separate remedies are available to the revisionist. In case, he has elected to invoke one of the remedies available, the revision cannot be held to be not maintainable. 10. One of the judgment relied upon by Counsel for the revisionist in: (1) Sant Lal Jain v. Avtar Singh 1985 ACJ 563 . In case, he has elected to invoke one of the remedies available, the revision cannot be held to be not maintainable. 10. One of the judgment relied upon by Counsel for the revisionist in: (1) Sant Lal Jain v. Avtar Singh 1985 ACJ 563 . (2) First Appeal From Order No. 3118 of 2014, Gyanendra Kumar v. Pushpendra Kumar (3) Matter Under Article 227 No. 799 of 2016, Smt. Chandra Sheela and another v. Smt. Shipra Agarwal 11. In these judgments, it has been held that once a license has been terminated or the term of license has expired, the licensor is not required to sue for possession. A suit for mandatory injunction alone is enough for directing the licensee, whose license has expired, to handover possession to the licensor. 12. Similar, is the position in the judgment dated 22.3.2017 rendered by a Division Bench of this Court in the First Appeal From Order No. 3118 of 2014, Gyanendra Kumar v. Pushpendra Kumar and by the learned Single "Judge in. Matter Under Article 227 No. 799 of 2016, Smt. Chandra Sheela and another v. Smt. Shipra Agarwal, vide, order dated 11.2.2016. 13. Although, other judgments have also been cited on behalf of the revisionist, this Court does not consider it necessary to refer to them as the aforecited judgments are adequate for the purposes of deciding this revision. 14. Perusal of the plaint of the suit reveals that therein no separate relief for possession have been sought. Only a mandatory injunction has been sought by the plaintiff revisionist on the ground that the opposite party was a licensee, whose license has been validly terminated. 15. The Trial Court came to the conclusion that, in effect, the plaintiff was seeking possession over the property in question and therefore, directed payment of additional Court fee regarding the relief for possession. The view taken by the Trial Court is contrary to. what has been laid down by the Supreme Court in Sant Lal Jai (supra). The relevant portion of the said judgment is extracted below-- "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 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 is 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." 16. The judgment cited, Courts an earlier judgment of the Apex Court in Milka Singh v. Diana and others, AIR 1964 J and K 99 and is quoted therefrom as follows- "In the present case, the plaintiffs alleged and established that the defendant respondent was merely a licensee. That being the case the possession of the house lay with the appellants through the respondent and not with the respondents who had no independent or separate -interest in the house." 17. Under the circumstances and in view of the judgment of the Apex Court above, all that is needed to be considered by this Court is whether the suit was filed by the plaintiff, promptly after termination of the license. 18. From the facts available on record, it appears that the plaintiff granted a license to the defendant is further to reside on the first floor of the building in question. The license as revoked vide notice dated 6.11.2018. The suit was thereafter, filed on 22.12.2018, i.e., 46 days from the revocation of the license. Under the circumstances and in view of what has been held by the Supreme Court, the plaintiff cannot be asked to pay Court-fees also under section 7(v) of the Court-Fees Act for a decree of possession also, because a suit for. mandatory injunction simplicitor, is clearly maintainable. The Court-fees liable to be paid thereon, has been duly paid. 19. In view of what has been stated above, the impugned order cannot be. sustained and is liable to be set aside, being in the teeth of the view taken by the Apex Court. 20. Accordingly, I allow the revision and set aside the impugned order dated 18.11.2019.