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Jugal Kishore Vs. Des Raj Seth - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 235 of 1967
Judge
Reported in4(1968)DLT571
AppellantJugal Kishore
RespondentDes Raj Seth
Advocates: Sarvashri,; H.R. Arora,; S.N. Chopra,;
Excerpt:
.....the plaint as a whole have to be examined.; so where the plaint culminated in the prayer for a decree for mandatory injunction directing the defendant to vacate the premises, on the averment that the plaintiff had put the defendant in possession of the property in question and that on happening of certain events where after the plaintiff became entitled to get back the possession: held, that on reading the plaint as a whole this was, in substance, a suit for possession and nto for a mere mandatory injunction.; petition under section 115 code of civil procedure read with section 44 punjab courts act for the revision of the order of shri h.c. gupta, sub-judge 1st class, delhi dated 28-1-1967. - - under the leave and license of the plaintiff, the defendant was also put in possesssion of..........mandatory injunction. the suit instituted by presentation of this plaint would accordingly be a suit for possession. on this view of the matter, we consider it unnecessary to go into the question on which various conflicting decisions were cited before the learned single judge and in the trial court. it is nto disputed before us that while determining the nature of the suit and the relief claimed, the plaint has to be read and construed as a whole and it is the substance which is to be the guiding factor. the court has to look at and see in each particular case as to what is the real nature of, the relief claimed and it is for that purpose that the allegations contained in the plaint as a whole have to be examined. merely because the expression 'mandatory injunction' is used in the.....
Judgment:

Inder Dev Dua, J.

(1) This revision has been referred to a Bench of three Judges because of a conflict in some reported decisions of some High Courts about the maintainability of a suit for a mandatory injunction directing the defendant to vacate the premises which were held by him as a licensee and has been determined.

(2) In the trial Court, the following two preliminary issues were settled on the basis of the preliminary objections :

'1. Whether the suit of the plaintiff lies in the present form ?

2. If issue No. 1 is proved in favor of the plaintiff, whether the plaint is nto properly valued for purposes of court-fee and jurisdiction ?'

(3) The trial Court held, following the decisions of the Punjab High Court, that the suit was competent in the present form. On issue No. 2, it was held that the present suit being one for injunction, it had been correctly valued for purposes of court-fee and jurisdiction.

(4) Before us, Shri Dina Nath Bhasin, the learned counsel for the defendant-petitioner, has read out the plaint as amended. According to the averments in the plaint, the defendant used to get grinded at the plaintiff's mill (Raj Grinding Mill) dal and basen at a certain rate. Under the terms of arrangement, after the end of each calendar month, an account of all the bags was taken and the amount due to the plaintiff on account of the ttoal grinding was paid to him in lump sum. Under the leave and license of the plaintiff, the defendant was also put in possesssion of the said grinding mill for the better facilities of grinding dal and basen by him. The amount due for grinding declined rapidly every month and ultimately the defendant expressed his inability to send more material for grinding. Under these circumstances, the plaintiff revoked the license granted to the defendant for possession and use of the premises by ntoice dated 4-6-1966 and demanded that the plaintiff should be given back the possession of the premises within two days. The prayer clause was couched in the following words :-

'IT is, thereforee, prayed that a decree for mandatory injunction may be granted in favor of the plaintiff and against the defendant directing the defendant to vacate the premises No. 577, Ward No. Vii, G. B. Road, Delhi and restore the said premises and the equipment (the dal grinding mill) to the plaintiff in good condition.*** Such toher relief as the Hon'ble Court deems most just and equitable under the circumstances of the case may also be granted to the plaintiff.'

(5) The plaint read as a whole culminating in the prayer clause seems to us to be in substance a plaint praying for possession and nto for a mere mandatory injunction. The suit instituted by presentation of this plaint would accordingly be a suit for possession. On this view of the matter, we consider it unnecessary to go into the question on which various conflicting decisions were cited before the learned Single Judge and in the trial Court. It is nto disputed before us that while determining the nature of the suit and the relief claimed, the plaint has to be read and construed as a whole and it is the substance which is to be the guiding factor. The court has to look at and see in each particular case as to what is the real nature of, the relief claimed and it is for that purpose that the allegations contained in the plaint as a whole have to be examined. Merely because the expression 'mandatory injunction' is used in the prayer clause, cannto always be conclusive against the prayer contemplating a decree for possession, and if reading the plaint as a whole, it becomes clear that the plaintiff is seeking possession of the property, then it would be open to the Court to hold the suit to be one for possession. In the case in hand, the plaint contained an averment that the plaintiff had put the defendant in possession of the property in question and on the happening of certain events thereafter, the plaintiff became entitled to get back the possession. We have accordingly no hesitation in holding on reading the plaint as a whole that in substance this is a suit for possession and nto for a mere mandatory injunction.

(6) The next question which on this premise arises for consideration relates to the value of the suit for purposes of court-fee and jurisdiction. As the suit has been pending since June, 1966 and it has nto yet proceeded beyond the stage of preliminary issues, we asked the defendant to tell us as to what, according to his plea, would be the value of the suit for such purposes. Btoh the counsel for the plaintiff and the defendant before us, after mutual consultation, have agreed that in this case Rs. 10,000.00 should appropriately be fixed as value btoh for purposes of court- fee and jurisdiction. Agreeing with this valuation, we decide btoh the issues as just stated. The case will now go back to the trial court for further proceedings in accordance with law in the light of the observations made above. The suit having become old, we direct that the trial Court should proceed to dispose it of with due dispatch and an attempt should be made to do so within a period of nine months. Tardy justice, we may emphasise, is often no better than injustice. In this connection, the attention of the Court below is invited to the instructions contained in Chapter I-K of Vol. I of the High Court Rules & - Orders, and particularly to paragraph 8 of the said Chapter. These instructions, if properly carried out, may to some extent reduce the ntoorious delays of the law. Parties are directed to appear in the trial Court on 23-9-1968 when antoher short date would be given for further proceedings. In the peculiar circumstances of the case, we make no order as to costs in this Court.


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