Renu Nagar vs Anup Singh Khosla & Anr.
2009 Latest Caselaw 75 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


                                            Date of Reserve: November 25, 2008
                                                 Date of Order: January 14, 2009

+ CRP 169/2008
%                                                          14.01.2009
     Renu Nagar                                            ...Petitioner
     Through: Mr. Prabhjot Jauhar with Ms. Anupama, Advocates

      Versus

      Anup Sing Khosla & Anr.                                      ...Respondents
      Through: Mr. Sudhir Nandrajog, Advocate


      JUSTICE SHIV NARAYAN DHINGRA

1.    Whether reporters of local papers may be allowed to see the judgment? Yes.

2.    To be referred to the reporter or not?                                       Yes.

3.    Whether judgment should be reported in Digest?                               Yes.


      JUDGMENT

1. The petitioner is aggrieved by an order dated 21 st October 2008

whereby an application of the petitioner under Order 7 Rules 10 and 11(B)

read with Section 151 of the Civil Procedure Code was dismissed.

2. The petitioner herein is the defendant in a suit filed by the plaintiff

(respondent herein) before the trial court. The respondent filed this suit qua

property bearing number D-49, Defence Colony, New Delhi. The petitioner

was stated to be a licensee in this premises whose license was terminated.

The respondent prayed to the trial court for issuing a mandatory injunction

against the petitioner directing him to remove himself from the premises.

Apart from that, the respondent also made a prayer for mesne profits and

damages for use and occupation of the premises from the date of filing of the

suit @ Rs.30,000/- per month. The respondent valued the suit at Rs.3,05,000/-

CRP169/2008 Renu Nagar vs.Anup Sing Khosla & Anr. Page 1 Of 4 without disclosing any basis for this valuation. The petitioner by the aforesaid

application under Order 7 raised objections against the valuation of the suit

and also about maintainability of the suit. The learned trial court held that

since the licensee was under an obligation to surrender the possession to the

owner on determination of the license, a suit for mandatory injunction was

quite maintainable. However, on the issue of court fees, the trial court

observed that whether the suit was properly valued or improperly valued was

a mixed question of facts and of law. Usually, the valuation put by the plaintiff

is accepted except where the defendant submits that the valuation was

otherwise. Since under Order 7 Rule 11 CPC only the plaintiff's contentions

are to be seen, the contentions of the defendant cannot be accepted at initial

stage and the trial court left the issue of court fees open to be decided only

after evidence.

3. When a fresh suit is filed before the trial court, the trial court has to

ensure that the suit has been filed before the court of proper jurisdiction and

if the trial court finds that the suit has not been properly valued, it is

obligatory upon the trial court to direct the plaintiff to value the suit in

accordance with law. No doubt, the plaintiff has a discretion to value the suit,

however, this discretion cannot be exercised in an arbitrary manner so as to

violate the provisions of Suit Valuation Act and the Court Fees Act or to be in

direct conflict with the law settled by the Courts. If this is allowed, then it shall

become a free run for every plaintiff to value the suit in any arbitrary manner

in order to save the court fees and to cause loss to the public exchequer and

also harass the defendant. The plaintiff in that eventuality would value the

suit at a value of Rs.200/- or so even if the actual valuation of the suit

property is in crores. If this is allowed, this would encourage frivolous

CRP169/2008 Renu Nagar vs.Anup Sing Khosla & Anr. Page 2 Of 4 litigation and the people would file suit without paying requisite court fee and

would run no risk of losing court fees when the suit is found frivolous. It is,

therefore, essential that at the initial stage itself the Court should see that the

suits are properly valued and if they are not properly valued, the plaintiff

must be told to value the suit in accordance with law.

4. The observations of the trial court that the valuation of the suit is

mixed question of law and facts in this case is very vague observations. The

trial court had not given reasons nor those facts involved in the case affecting

the valuation of the suit. The present suit has been filed by the plaintiff/

respondent seeking mandatory injunction for the petitioner to vacate the

premises and hand over the same to the respondent. It is obviously a suit for

possession and has to be valued accordingly. The judgment of Division Bench

of this Court in Ashok Chaudhary v. Dr. (Mrs.) Inderjit Sandhu, 1998 AD Delhi

917 was brought to the notice of the trial court. The trial court mentioned this

judgment in its order but did not follow the ratio of the judgment. It is

categorically stated in this judgment that where a suit is filed by the owner

against a licensee after termination of license, the suit has to be valued on

the basis of market value of the property. The facts in Ashok Chaudhary's

case (supra) were similar to the facts of the present case. In Ashok

Chaudhary's case also the licensee was a friend who occupied the premises

with promise to vacate on demand but later on he refused to vacate the

premises. This Court observed that the relief of recovery of possession and

declaration in a suit for mandatory injunction cannot be considered a surplus-

age but it was a substantive relief. Therefore, Section 7(v) (e) of the Court

Fees Act would be attracted to the substantive relief and the suit has to be

valued accordingly i.e. the market value of the property.

CRP169/2008 Renu Nagar vs.Anup Sing Khosla & Anr. Page 3 Of 4

5. It is obvious that the learned trial court went wrong in postponing the

issue of valuation of the suit to a future date and also went wrong in

observing that it was a mixed question of law and facts. Resultantly, the

petition is allowed and the order of the learned trial court, since suffers from

a material irregularity, is hereby set aside. The trial court shall give an

opportunity to the plaintiff to appropriately amend the suit so as to value it in

accordance with the provisions of Section 7(v) (e) of the Court Fees Act i..e on

the basis of market value.

January 14, 2009                                 SHIV NARAYAN DHINGRA J.
rd




CRP169/2008               Renu Nagar vs.Anup Sing Khosla & Anr.   Page 4 Of 4