S. Rangarajan, J.
(1) The petitioner (The Punjab Exchange Ltd.) is the plaintiff which filed a suit for certain reliefs including a relief for mandatory injunction being granted in the plaintiff's favor against the defendant, directing the defendant to stop using the premises shown red in the plan and to vacate and hand over and remove their use and occupation from the entire third floor of the building known as Kohinoor Building, Katra Baryan, Delhi except the front portion of the first and second floors It is not necessary to set out the other reliefs prayed for because the above relief alone is material for the purpose of determining proper court fees payable on the plaint, which alone is the subject matter of this Revision.
(2) The plaintiff is a company registered under the Companies Act. It is alleged that the plaintiff company had taken the said building on lease from its owners and that it had been permitted, by the said landlords, to sublet any portion of the building and to grant licenses for the use or occupation of any such part to any one. The further allegation is that the plaintiff granted a license to the defendant on 2.1.1960 for the use of a ring and some portion of the building for a period of three years, and that the defendant, as part of the said arrangement, also agreed to collect license fees from the other licensees of the said plaintiff and pay a license fee at the rate of Rs.2,700.00 per month. It is also the case of the plaintiff that on the 28th November 1971 the plaintiff formally revoked the license of the defendant by a notice in writing and asked the defendant to stop using the ring and the above premises. Failure to comply with the sa
(3) It is needless to set out even the stand of the defendant in the written statement because the allegations in the plaint alone have to be looked into for the purpose of determining the court fees payable in the plaint. The only two provisions of the Court Fees Act, 1870, whicare material in so far as the relief in question is concerned, are section 7(iv)(d)' and 7(v). They read [--]
(4) The question of how a plaint should be construed for determining the court fees came up for consideration before a Full Bench of this court in Jugal Kishore V, Des Raj Seth 1968 (70) P.L.R. Del 351 I.D.Dua, C.J. (as he than was) who spoke for the Bench, construed a plaint, almost like the one in the present case He observed that reading the plaint as a whole it was, in substance, one praying for possession and that it was not a mere suit for mandatory injunction merely because the expression 'mandatory injunction' also had been used in the prayer clause. The prayer clause in that plaint was:----
(5) That plaint, it was observed by Dua, C.J., was seen to contain an averment that the plaintiff had put the defendant in possession of the property in question and that on the happening of the events mentioned therein the plaintiff became entitled to get back possession. A reading of the plaint in the present case also makes it clear that the plaintiff had put the defendant in possession, may be under a license and that the said possession of the defendant was an exclusive one ; in other words, it was not joint possession along with the plaintiff.
(6) The case of the defendant seems to be that he is a tenant ( not mere licensee ) and that those occupying other portions are his sub-lessees. The plaint is, however, silent concerning how the parties, other than the defendant, are in possession of various portions except for an allegation that the defendant is bound to collect the license fees from those persons and give them to the plaintiff. The lower court framed a preliminary issue:- 'Whether the suit has been properly valued for the purposes of court fee and jurisdiction and whether the court fee has been paid properly '
(7) Following the above-said Full Bench decision the lower court has construed the plaint as being in substance one for possession and directed the suit to be valued accordingly for the purpose of court fees and jurisdiction. The argument for the petitioner is that this suit is for injunction only and thereforee the plaintiff was at liberty to value the said relief as it pleased subject to the payment of minimum court fee of Rs.13. The only question for consideration is whether the plaint can be construed as one for mandatory injunction only and not for possession; once it is construed as a suit for injunction then the plaintiff would be at liberty to value the relief on the footing adopted by the plaintiff.
(8) In support of the plaintiff's contention reference was made to a decision of the Punjab High Court in Poor an Chand V. Malik Mukh bain Singh 1964 (64) P.L.R. 490 where Tek Chand. J. held that the suit, which was for a permanent injunction against lessees who refused to leave the premises after the termination of the tenancy was maintainable. It is seen from the opening portion of the said judgment that the prayer was for a mandatory injunction requiring the defendant the vacate the premises in suit and never to interfere with the possession of the plaintiff on the ground that their possession was merely that of a licensee and not that of a tenant. It was held that the suit was maintainable. There was also an issue raised by the trial court in that case regarding valuation for purpose of court-fees and jurisdiction but as it is seen from the observations of Tek Chand J. [on page 492] neither side led any evidence and this aspect of the issue of court-fees and jurisdiction was left undecided whereas only the question of maintainability was decided. The aspect now for consideration is not the maintainability of the plaintiff's suit but only that of proper valuation and payment of court-fees.
(9) The plaint in Pooran Chand sought a declaration that the possession of defendant was that merely of a licensee but not that of a tenant : There is no such relief in the present case. On the plain language employed by the present plaint it is seen that it was not a case of the plaintiff being jointly entitled to be in possession with the defendant or the possession of the plaintiff being other than exclusive. One of the express prayers asked for was not only that the defendant should vacate but hand over possession after removing what was described 'their use and occupation of the portion' mentioned therein.
(10) Shri Bharat Inder Singh, learned counsel for the petitioner, brought to my attention the judgment of B.C.Misra, J. in Sham Lal V. Ramesh Kumar 1971. R.L.R 65. The learned Judge also noticed the above-said Full Bench decision and also understood the decision as meaning that substance of the plaint was the guiding factor, the Court had to look at the real language of the relief claimed and for that purpose examine the allegations contained in the plaint as a whole and not be merely led away by the expression 'mandatory injunction' which may not be conclusive against the prayer contemplating a decree for possession. If after reading the plaint as a whole it became clear that the plaintiff was seeking possession of the property the Court would have to hold the suit to be one for possession. B.C. Misra, J. could not be understood as laying down any different principle different from that laid down by the Full Bench; he was construing the plaint before him. It is seen from reading the said judgment of B. C. Misra, J. that he was unable to find anything in the plaint which would show that the plaintiff had put the defendants, in that case, in exclusive possession of the premises or even that a suit for recovery of possession had been filed. The entire observations in the judgment are relatable to this crucial feature. The facts of that case were somewhat peculiar. The property was Railway property ; at the request of the second defendant, a neighbour, the plaintiff had made available one room to first defendant for the specific purpose of enabling first defendant's wife to give birth to a child. Thereafter the wife became ill and was forced to stay for a longer period. Ultimately the defendant declined to move out of the premises which led to the suit. Both on the facts and on the pleadings the said case is distinguishable from the present.
(11) Shri M.L.Rawal, learned counsel for the respondent however, draws my attention to the fact that such reference as was made by B.C. Misra. J. to the decision of Pooran Chand was not a correct analogy because it was not brought to the notice of B.C. Misra, J. that no question of court-fees at all fell for consideration in Pooran Chand's ; only the question of maintainability of suit was decided. The above Full Bench decision, which alone is material in this context, was not concerned with maintainability but dealt with the question of valuation and court-fees by construing the plaint; the manner in which such a plaint should be construed was indicated.
(12) The difference, which is obvious, between removing a defendant, who is in present possession of immoveable property, and preventing a defendant not in possession of it from interfering with the possession of the plaintiff does not need to be set out at any length. Order Xxi Rule 32 Civil Procedure Code . deals with the case of a person, against whom an injunction has been granted, when he seeks to violate. It would, to say the least, be cumbersome to attempt to remove a defendant who is already in possession by recourse to Order Xxi Rule 32 Civil Procedure Code . That is why the Code of Civil procedure provides a different type of warrant for putting a plaintiff, out of possession, in possession of immoveable property. In such a case a warrant in Form Xi of Schedule Ii of the Code of Civil Procedure would be addressed to the bailiff : 'Whereas the undermentioned property in the occupancy of .....has been decreed to...... the plaintiff in this suit : You are hereby directed to put the said...... in possession of the same, and you are hereby authorised to remove any person bound by the decree who may refuse to vacate the same.'
(13) The simple manner in which this is to be executed by the bailiff is by physically removing from possession all those bound by the decree for possession. Under Order Xxi Rules 98 and 99 obstruction to delivery of possession can be successfully made only by persons not claiming under the defendant (s). A plaint, thereforee, which seeks the aid of the court for evicting any one from present possession of immoveable property and for handing over the same to the plaintiff in the event of plaintiff's success must be taken to pray for all that has to be done by Court according to the Code of Civil Procedure in the eventuality of the plaintiff's success. The plaintiff cannot be permitted to avail himself of those acts to be done by the court and yet avoid paying the court fees required for them. That is reason why the court has to look at the substance of the plaint for levying the proper court fee payable there on and not be led away by any artifice of plaintiff who attempts to get the relief he wants substantially without paying the necessary court fees. When the relief asked for by the plaintiff squarely amounts to his having to get possession from the defendant who is in exclusive possession the plaintiff can not secure the same by merely coupling or adding a prayer for a mandatory injunction of the kind asked for in this plaint. If a plaint is construed in substance to be for a mere injunction it would be a different matter and the plaintiff can value the relief as he likes. This is the basic approach explained by the above Full Bench decision ; it will not be permissible to distinguish it on grounds which could be only fanciful and result in putting a premium on' ingenuity, overlooking the totality of the relevant procedural requirements in this respect.
(14) In view of the above discussion I find that the impugned order is one which does not require to be interfered with The Civil Revision is accordingly dismissed but in the circumstances without costs.
(15) Mr. Bharat Inder Singh states that in view of the fact that the time given by the lower court for amending the plaint has already expired the time may be suitably extended by this Court. This request is reasonable and 1 permit the plaintiff to amend his plaint, as required, within a month from today.