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2022 DIGILAW 1793 (ALL)

Urmila Devi v. Rajendra Pal Tayal

2022-11-15

SARAL SRIVASTAVA

body2022
JUDGMENT : SARAL SRIVASTAVA, J. 1. Heard learned counsel for the appellant and learned counsel for the respondents. 2. The present appeal is directed against the order dated 25.04.2014 passed by the Additional Civil Judge (S.D.) Court No. 2, Bulandshahar whereby the issue no. 7 in Original Suit No. 1285 of 2008 instituted by the plaintiff/appellant has been decided against the plaintiff/appellant and trial court has directed the plaintiff/appellant to pay court fees ad-valorem. 3. The plaintiff/appellant has instituted Original Suit No. 1285 of 2008 contending inter-alia that the suit property has been purchased by the plaintiff/appellant by registered sale deed dated 24.08.1966 on which a pottery business in the name of M/s Tayal Pottery was run by the plaintiff/appellant and defendant/respondent no. 1 Rajendra Pal Tayal. Subsequently, Tayal Pottery was dissolved with the consent of the plaintiff/appellant and defendant/respondent Rajendra Pal Tayal (since deceased). It is further pleaded in the plaint that a loan was taken from the U.P. Financial Corporation, Kanpur (hereinafter referred to as U.P.F.C.) by M/s Tayal Pottery which was repaid on 13.06.2007 and after discharge of loan, a registered re-conveyance deed was prepared in favour of plaintiff/appellant and defendants/respondents. 4. Further case of the plaintiff/appellant is that after the loan of U.P.F.C. was discharged, the defendant being the real brother of the husband of the plaintiff/appellant carried on the business of pottery. It is submitted that the possession of defendants/respondents over the suit property was that of a licencee. The licence has been terminated by the plaintiff/appellant by registered notice dated 16.09.2008, and defendants/respondents were asked to hand over the possession of the suit property. The defendants/respondents did not give possession of the suit property which gave the cause of action to the plaintiff/appellant to institute the present suit. 5. The licence has been terminated by the plaintiff/appellant by registered notice dated 16.09.2008, and defendants/respondents were asked to hand over the possession of the suit property. The defendants/respondents did not give possession of the suit property which gave the cause of action to the plaintiff/appellant to institute the present suit. 5. In the aforesaid backdrop, the following relief has been prayed for by the plaintiff/appellant: ^^¼v½ ;g fd Áfroknhx.k dks }kjk vkns'kkRed fu"ks/kkKk vknsf'kr fd;k tkos fd og fuEu of.kZr iksVjh dk n[ky okfnuh dks ns vkSj ;fn Áfroknhx.k ,slk uk djs rks Áfroknhx.k ds [kpsZ ij }kjk flfoy dksVZ vehu okfnuh dks iksVjh mijksDr dk n[ky fnyk;k tkosA ¼c½ ;g fd okfnuh dks Áfroknhx.k ls nkSjkus okn fuEu of.kZr ikVjh ds bLrseky dh ,ot esa 8]000@& :i;s ekfld Áfroknhx.k ls mi;ksx /ku fnyk;k tkos ftl ij ;fn vko';d gqvk rks U;k; 'kqYd fu"iknu ds le; fn;k tk;sxkA ¼l½ ;g fd okfnuh dks Áfroknhx.k ls okn O;; fnyk;k tkosA ¼n½ ;g fd dksbZ vU; vuqrks"k ftldk okfnuh ikus dh vf/kdkjh gks fnyk;k tkosA** 6. The trial court framed the issue with regard to the sufficiency of the court fee. According to the defendants/respondents though, the suit has been instituted for mandatory injunction, but essentially plaintiff/appellant is claiming relief of possession. Hence, the plaintiff/appellant is liable to pay the court fee ad-valorem as provided under Section 7(v)(II) of the Court Fees Act. 7. The trial court after considering the facts in detail found substance in the contention of defendants/respondents and held that as the plaintiff/appellant is essentially claiming relief of recovery of possession, therefore, she is liable to pay court fee ad-valorem as per Section 7(v)(II) of the Court Fees Act, 1887. 8. Challenging the aforesaid order, learned counsel for the plaintiff/appellant has contended that the trial court has failed to appreciate the correct law on the issue inasmuch as the suit has been instituted by the plaintiff/appellant for a decree of mandatory injunction on the ground that the suit property is in the name of plaintiff/appellant and the nature of possession of the defendants/respondents over the suit property is of a licencee which implies that the possession of defendants/respondents over the suit property was only permissive, therefore, the suit for mandatory injunction is maintainable, and the plaintiff/appellant is liable to pay fixed court fee as contemplated under Section 7(iv-B) of the Court Fees Act. It is submitted that the trial court has erroneously held that as the plaintiff/appellant under the garb of mandatory injunction is essentially seeking relief of possession, therefore, she is liable to pay court fee ad-valorem as provided under Section 7(v)(II) of the Court Fees Act. In support of aforesaid contention, he has placed reliance upon the judgment of this Court in the case of (Sri Dori Lal Premi vs. Smt. Vidya Devi) passed in Second Appeal No. 975 of 2013. He has further placed reliance upon the judgment of the Delhi High Court in the case of Malik Mohd. Tanveer vs. Uzma Malik and Another decided on 18.07.2016. 9. Per contra, learned counsel for the respondents would contend that the trial court has rightly held that the plaintiff/appellant is liable to pay court fee ad-valorem since it is admitted on record that defendants/respondents are in possession of the suit property, and thus, plaintiff/appellant under the garb of mandatory injunction is essentially claiming relief of possession. Thus, it is contended that the trial court has not committed any illegality in deciding the issue of court fees against the plaintiff/appellant. In support of his contention, learned counsel for the respondents has placed reliance upon the judgments of this Court in the cases of Sudhir Bansal and Another vs. Girish Bansal, 2015 (5) ADJ 624 (DB), Dinesh Kumar vs. A.D.J. Hardwar, 1996 (1) AWC 433 and Azizur Rahman vs. Salaam Khan and Another. 10. I have considered the rival submissions of the parties and perused the record. 11. The suit has been instituted by the plaintiff/appellant on the ground that the suit property has been purchased in the name of the plaintiff/appellant by registered sale deed dated 24.08.1966. On the suit property, a business in the name of M/s Tayal Pottery was being run jointly by the plaintiff/appellant and defendant/respondent. A loan was taken by them in the name of Tayal Pottery from the U.P.F.C. which was repaid by them on 13.06.2007. Thereafter, with the consent of the plaintiff/appellant, the defendants/ respondents continued with the pottery business over the suit property. According to the plaint case, the possession of defendants/respondents over the suit property was only permissive and the status of the defendants/respondents was that of a licencee. The plaintiff/appellant by registered notice dated 16.09.2008 terminated the licence of the defendants/respondents. Thereafter, with the consent of the plaintiff/appellant, the defendants/ respondents continued with the pottery business over the suit property. According to the plaint case, the possession of defendants/respondents over the suit property was only permissive and the status of the defendants/respondents was that of a licencee. The plaintiff/appellant by registered notice dated 16.09.2008 terminated the licence of the defendants/respondents. As the defendants/respondents did not hand over the possession of the suit property to the plaintiff/appellant, a suit has been instituted by the plaintiff/appellant for the relief quoted above. 12. Though, relief of mandatory injunction has been claimed by the plaintiff/appellant, because of the admitted facts on record that defendants/respondents are in possession of the suit property, the suit is essentially for possession. 13. Now the question which arises for consideration is as to whether in the facts of the present case, the plaintiff/appellant is entitled to pay a fixed court fee as provided under Section 7(iv-B) of the Court Fees Act or ad-valorem as provided under Section 7(v)(II) of the Court Fees Act. 14. To appreciate the said issue, the first question which arises for determination in the instant case is whether the suit of the plaintiff/appellant for mandatory injunction would lie or not, or the only remedy for the plaintiff/appellant is to seek a decree of possession. In this regard, it would be apt to refer to the judgment of the Apex Court in the case of Sant Lal Jain vs. Avtar Singh, AIR 1985 SC 857 . 15. In the said case, the identical controversy came up for consideration before the Apex Court and the Apex Court considered the effect of Section 55 of the old Specific Relief Act, 1877 which has been incorporated in the new Specific Relief Act, 1963 as Section 39 read with Section 41. 16. The Apex Court held that where a licence has been terminated and the licensor wants the possession of the suit property, a suit for mandatory injunction would lie with the only rider that to seek relief of mandatory injunction, the plaintiff has to approach the court without any delay and the reasonable time for instituting a suit for mandatory injunction would be three years from the date of cause of action. However, if the plaintiff after terminating the licence remains dormant about his right and does not approach the court for his right, and three years period has elapsed from the date of termination of the licence, then, the plaintiff has to institute a suit for recovery of possession and suit for mandatory injunction would not lie. 17. This Court also in the case of Sri Dori Lal Premi (supra) by placing reliance upon the judgment of Apex Court in the case of Sant Lal Jain (supra) as well as the judgment of this Court in the case of Islam Ahmad vs. Maqsood and Another, 2007 (8) ADJ 239 held as follows: “In view of the aforesaid authority it is apparent that the licensor has both the remedies of a suit for mandatory injunction or for recovery of possession. If he brings the suit within three years he can do so by a suit of mandatory injunction and in case it is filed beyond three years, the suit may simplicitor be for recovery of possession. However, the licensor, who has validly determined the licence, cannot be denied possession over the property no matter in what form the prayer is made in the suit. The justice oriented approach demands to avoid technicalities and to advance substantive justice. Therefore, it would not be proper to deny the relief of possession to the plaintiff respondent when he is entitled to it in law merely the for reason the relief is not properly worded and the court fee has not been paid. The only difference between a suit for mandatory injunction for a direction of possession and in a suit for recovery of possession would be of the court fees inasmuch as in a suit for mandatory injunction fixed court fees is payable whereas in a suit for recovery of possession ad-valorem court fees would be payable. The counsel for the plaintiff respondent agrees for payment of ad-valorem court fee on the suit for possession. The counsel for the plaintiff respondent agrees for payment of ad-valorem court fee on the suit for possession. A similar controversy has arisen before me in the case of Islam Ahmad vs. Maqsood Ahmed and Another, 2007 (8) ADJ 239 and it was held that even though the relief claimed by the party was not properly drafted and was coughed in a language as if it was a suit for mandatory injunction but as in effect the relief claimed is of possession, the party claiming possession if legally entitled to the same cannot be denied the benefit of it subject to payment of court fees for the said relief. The court fees was permitted to be made good as non-payment of the same was held to be an irregularity which was of a curable nature. There are ample precedence where proper court fees was not paid but the court while deciding the appeal finally and granting the relief directed payment of the requisite court fee as a condition for implementation of the decree.” 18. In the present case, according to the plaint case, the licence of defendants/respondents was terminated by the plaintiff/appellant by registered notice dated 16.09.2008 and the suit had been instituted on 22.10.2008. Therefore, the plaintiff/appellant has acted promptly in instituting the suit, and thus, the controversy in hand is covered by the judgment of Apex Court in the case of Sant Lal Jain (supra), and the suit for mandatory injunction would lie. 19. It is pertinent to note that in considering the issue of court fees, only plaint averments have to be seen. In this regard, it would be apt to reproduce paragraph 9 of the judgment of the Delhi High Court in the case of Malik Mohd. Tanveer (supra): “9. I may note that the settled legal position is that for deciding the question relating to the amount of Court Fees payable on a plaint, the averments in the plaint have to be looked into. Tanveer (supra): “9. I may note that the settled legal position is that for deciding the question relating to the amount of Court Fees payable on a plaint, the averments in the plaint have to be looked into. This court in the case of Oriental Trading Corporation vs. Punjab Skin Trading Co., relying upon the Full Bench of the Circuit Bench of the Punjab High Court at Delhi in Jai Krishna Dass vs. Babu Ram, 1967 Plrd 52 stated as follows: “(1)....it was settled law that for deciding the question relating to the amount of court fee payable on a plaint, not only have the averments in the plaint alone to be taken into account but the said allegations are to be assumed to be correct and the decision can neither depend on the maintainability of the suit as framed nor upon the assumption that the court must somehow spell out of the plaint such a claim which is ultimately capable of being decreed and the Court has to take the plaint as it is without omitting anything material and without reading in it by implication what is not stated therein.” 20. Now coming to the judgment relied upon by the learned counsel for the respondents in the case of Sudhir Bansal (supra). This Court finds that the judgment of this Court in the case of Sudhir Bansal (supra) is not applicable in the case in hand as the facts in these cases are different. 21. In the said case, the suit property was sold by the original owner to the plaintiff, and possession of the defendant in the suit vis-a-vis the original owner was that of the licencee. After the purchase of the property by the plaintiff, he instituted a suit for mandatory injunction and paid the court fee as provided under Section 7(iv-B) of the Court Fees Act. The trial court found that plaintiff was liable to pay the court fee ad-valorem. The matter came up before this Court in appeal. This Court in appeal considering the effect of Section 59 of the Indian Easement Act, 1882 held that as the plaintiff had got the property from the original licensor by transfer, the licence granted in favour of the defendant ceased to exist and there was no relationship of licensor and licencee between plaintiff/appellant and defendant/respondent. This Court in appeal considering the effect of Section 59 of the Indian Easement Act, 1882 held that as the plaintiff had got the property from the original licensor by transfer, the licence granted in favour of the defendant ceased to exist and there was no relationship of licensor and licencee between plaintiff/appellant and defendant/respondent. In the said case, this Court found that as there was no relationship of licensor and licencee between subsequent purchaser i.e. plaintiff and the defendant, therefore, plaintiff has to claim a relief of possession for which the court fee as provided under Section 7(v)(II) of the Court Fees Act is to be paid. 22. In the case of Dinesh Kumar (supra), this Court was considering a case where suit property was auctioned and the bid of the petitioner was highest, consequently, he was given suit property under the terms of the agreement. The petitioner paid certain installments and thereafter, he stopped payment of installments, and recovery was effected against him by the respondent/state which was challenged by the petitioner in the suit. The petitioner in the said case prayed for relief of injunction and paid a fixed court fee of Rs. 500/-. The trial court held that the petitioner was liable to pay the court fee on the full amount which is sought to be recovered from him. The finding of the trial court was affirmed by the appellate court as well as by this Court in the writ petition. So, the facts of the said case were different from the facts of the present case as in that case court was considering a case where the plaintiff has challenged the recovery of money which according to him was being recovered from him illegally which is not so in the present case. 23. In the case of Azizur Rahman (supra), this Court recorded a specific finding in paragraph 5 that relief is for recovery of possession of the house which was valued at Rs. 4 lac, consequently, the Court held that court fee is payable on that amount. Accordingly, this Court upheld the order of the trial court. 24. Thus, for the reasons given above, this Court is of the view that the trial court has acted illegally in holding that the plaintiff/appellant is liable to pay court fees under Section 7(v)(II) of the Court Fees Act. Accordingly, this Court upheld the order of the trial court. 24. Thus, for the reasons given above, this Court is of the view that the trial court has acted illegally in holding that the plaintiff/appellant is liable to pay court fees under Section 7(v)(II) of the Court Fees Act. Consequently, the order of the trial court is set aside. It is further held that the fixed court fee paid by the plaintiff/appellant is correct and proper in the present case. 25. Accordingly, the appeal is allowed with no order as to costs. 26. The trial court is further directed to conclude the suit expeditiously, preferably within one year from the date of production of the certified copy of this order. In case any adjournment is inevitable, the authority concerned may grant the same by imposing a heavy cost which may not be less than Rs. 5,000/-.