* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No.1052/2013 & C.M.No.15644/2013
% 28th AUGUST, 2014
HANSRAJ BHUTTIANI & ANR. ......Petitioners
Through: Mr.Pradeep Kumar Bakshi with
Mr.Puneet Khurana, Advocates.
VERSUS
HARMESH LAL BHUTTIANI ...... Respondent
Through: Mr.Ajay Jain, Advocate. CORAM: HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
1. Challenge by means of this petition under Article 227 of the Constitution of India is to the impugned order of the trial court dated 23.5.2013 by which the trial court has directed that the petitioner/plaintiffs must value the suit for possession in terms of Section 7(V) of the Court Fees Act, 1870.
2. To the impugned order, there cannot be any quibble, because, once the suit is for possession then the court fees will have to be paid under Section 7(V) of the Court Fees Act, but counsel for the petitioners/plaintiffs makes a CM(M) No.1052 /2013 Page 1 of 3 statement before this Court that since as per the averments in the plaint, especially in para 4 which states that the respondent/defendant was only a licensee, the present suit should be treated instead of a suit for possession as a suit for mandatory injunction in view of the ratio of the judgment of the Supreme Court in the case of Sant Lal Jain Vs. Avtar Singh 1985 (2) SCC
332.
3. Though the learned counsel for the respondent/defendant argues that respondent/defendant is not a licensee, but is the owner of the suit premises, however, that is an issue of defence on merits and that cannot be looked into when we have to look into the aspect of the valuation of the suit/plaint when only the averments made in the plaint have to be looked into.
4. In view of the above, I accept the statement made on behalf of the petitioners and apply the ratio of the Supreme Court in the case of Santlal Jain (supra). The petition will stand allowed and the suit filed by the petitioners/plaintiffs so far as the relief of possession is concerned will be treated as a suit seeking the relief of mandatory injunction to deliver possession. There is no serious prejudice to the respondent/defendant by taking the suit to be for mandatory injunction because the issue of court fees is basically between the litigant and the court. So far as the relief of CM(M) No.1052 /2013 Page 2 of 3 mandatory injunction is concerned, it is well settled law that in Delhi a person is entitled to value the suit for injunction at a reasonable value which he thinks appropriate.
5. In view of the above, the petition is allowed and disposed of, leaving the parties to bear their own costs.
VALMIKI J. MEHTA, J AUGUST 28, 2014 KA CM(M) No.1052 /2013 Page 3 of 3