Hansraj Bhuttiani & Anr. vs Harmesh Lal Bhuttiani
2014 Latest Caselaw 3993 Del

*            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

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

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