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Oriental Trading Corporation Vs. Punjab SkIn Trading Co. - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtDelhi High Court
Decided On
Case NumberCivil R. Appeal No. 427 of 1972
Judge
Reported in1976RLR650
ActsCourt Fees Act, 1870 - Sections 7(4)
AppellantOriental Trading Corporation
RespondentPunjab SkIn Trading Co.
Advocates: Abdul Jaleel, Adv
Cases ReferredPooran Chand v. Malik Mukhbain Singh.
Excerpt:
the case examined the suit for mandatory injunction under section 7 (iv) (d) of the court fees act, 1870 - the direction were sought against the licensee to vacate premises - it was held that the suit could not be said to be for recovery of possession - the plaintiff had discretion to value of relief sought and was not required to pay court fee on the market value of the property. - - when respondent failed to give possession, he sued him for mandatory injunction paying court fees of rs. paras 3 to 5 of judgment are :(2) the law on the subject is well settled......basis. later on, he revoked it. when respondent failed to give possession, he sued him for mandatory injunction paying court fees of rs. 3. respondent objected that suit is really for possession and petitioner should pay court fees on market value. petitioner filed revision. paras 3 to 5 of judgment are : (2) the law on the subject is well settled. under section 7(iv)(d) of the court fees act in a suit to obtain injunction, discretion is given to the plaintiff to value the relief and pay the court fees accordingly and a local amendment made in the law has provided that the court fees paid in such a suit shall be not less than rs. 13. on the other hand, in suits for possession of land and houses, the court fee is to be paid on the market value as provided in sub-clause (c) of.....
Judgment:

B.C. Misra, J.

(1) Petitioner, a tenant of certain premises, granted license to respondent on commission basis. Later on, he revoked it. When respondent failed to give possession, he sued him for mandatory injunction paying Court fees of Rs. 3. Respondent objected that suit is really for possession and petitioner should pay Court fees on market value. Petitioner filed revision. Paras 3 to 5 of judgment are : (2) The law on the subject is well settled. Under Section 7(iv)(d) of the Court Fees Act in a suit to obtain injunction, discretion is given to the plaintiff to value the relief and pay the court fees accordingly and a local amendment made in the law has provided that the court fees paid in such a suit shall be not less than Rs. 13. On the other hand, in suits for possession of land and houses, the court fee is to be paid on the market value as provided in sub-clause (c) of clause (v) of Section 7 of the Court Fees Act. In Sathapana Chettiar v. Ramanathan, : [1958]1SCR1021 , the Supreme Court laid down that the question of court fees must be considered in the light of the allegations made in the plaint and this decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. A Full Bench of the Circuit Bench of the Punjab High Court at Delhi in Jai Krishna Dass v. Babu Ram, 1967 Plrd 52, observed that 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. (3) I also wish to add that in a Pull Bench decision of the court. Sarup Singh v. Daryo-dhan 2nd (1972) 1 Del 759=1971 Rlr 89, it has been held that where a party was content to seek a decree for injunction to vacate rather than delivery of possession in a suit properly framed for the purpose, he had to face its logical consequences and he could have the decree executed only in the manner provided by Rule 32 of Order 21 and the issue of a warrant for delivery of possession in execution of a decree for injunction was not justified either by Rule 35 of Order 21 or clause (c) of Section 51 of the Code of Civil Procedure as it was impossible to convert a suit and a decree for injunction into a suit and a decree for recovery of possession. It is further observed in the said decision that an injunction for dispossession of the judgment-debtor without a direction for delivery of possession of the property to the decree-holder adjudged in the decree to be entitled to recover possession did not confer jurisdiction on the court to dispossess a person and leave the property in vacuum. Hence the decree for injunction can be executed only in the manner prescribed by the law. (4) In another Full Bench decision of this Court in Jugal Kishore v. Des Raj Seth, 1968 Dlt 571, the court observed that the plaint had to be read and construed as a whole and it was the substance which was to be the guiding factor and the court had to look and see in each particular case as to what was the real nature of the relief claimed and it was for that purpose that the allegations contained in the plaint as a whole had to be examined, merely because the expression 'mandatory injunction' was used in the prayer contemplating a decree for possession and if reading the plaint as a whole, it became clear that the plaintiff was seeking possession of the property, then it would be open to the court to hold the suit to be one for possession. (5) In the instant case. reading the plaint as a whole, I am of the view that the plaintiff has filed the suit only for grant of mandatory injunction directing the licensee to vacate the premises as occurred in Pooran Chand v. Malik Mukhbain Singh. 1963 Plr 490. Herein, the plaintiff is itself a tenant in respect of a large godown and has shared 3/4th of the same, which the defendants deny, while the plaintiff claims that it has retained the remaining l/4th portion exclusively with it. The plaintiff has alleged that it has revoked the license and as such the defendants are bound to restore its possession to the plaintiff. I am, thereforee, of the view that the suit of the plaintiff is not for recovery of possession, but for grant of mandatory injunction to vacate premises. In such a suit, the plaintiff cannot get a warrant for delivery of possession, as has been held by this court in Sarup Singh's case. If the plaintiff is content to have the man- datory injunction, as prayed for by it, it is) certainly open to it to pay court fees on a suit as framed for the said purpose.


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