Delhi High Court
Sanjeev Kapoor & Anr. vs Anil Kumar on 8 October, 2015
* HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P. No.96/2015 & CM APPL.11374/2015 &
CM APPL.13328/2015 (stay)
Decided on: 8th October, 2015
SANJEEV KAPOOR & ANR. ...... Petitioners
Through: Mr. Randhir Jain, Advocate.
Versus
ANIL KUMAR ...... Respondent
Through: Mr. Ajit Pratap Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This civil revision petition has been filed by the petitioner against
the order dated 26.05.2015 by virtue of which the application of the
present petitioner under Order VII Rule 11 CPC was rejected.
2. I have heard the learned counsel for the petitioner Mr. Randhir
Jain. I have also gone through the impugned order. Mr. Jain, the
learned counsel has contended that a suit for mandatory injunction
was filed by the respondent, the father of the present petitioner in
respect of certain portion of a property bearing No.1798, situated at
Ram Gali, Sohan Ganj, Subzi Mandi, Delhi-110 007. It is
contended that the respondent was in fact seeking possession of the
portion which was under the occupation of the present petitioner
along with his wife and since the suit for possession has been filed
under the guise of suit for mandatory injunction, ad valorem court
fee had to be affixed keeping in view the market value of the suit
property which is admittedly owned by respondent/ plaintiff but as
against this, a fixed court fees has been paid on a nominal
valuation. It has also been contended that the respondent/plaintiff
is claiming damages/occupational charges @ Rs.10,000/-,
however, he has not paid any court fees on the same.
3. I have considered the submissions made by the learned counsel for
the petitioner. The learned Civil Judge has referred to judgments
of this Court, especially on similar factual matrix where the Court
has held that in case a plaintiff is seeking retrieval of possession of
the suit property from any of his relations like son, daughter, etc.
then in such an event a suit for possession is not necessary and a
suit for mandatory injunction would suffice. The reason and the
logic for doing so is that the relation between the parties is such
that essentially petitioners are is the licensee of the
respondent/plaintiff. In the instant case, the petitioner No.1 is the
son of the respondent who has filed a suit for mandatory
injunction. The property is admittedly belonging to the father. The
son along with his wife and child is living in the property only as a
licensee. Since the father does not want son and his family to
continue any more in the house, therefore, a suit for mandatory
injunction seeking that the petitioners must be removed from the
licensed premises, is sufficient. It is not necessary that he must file
suit for possession. The delinquent son would obviously like his
father to spend money on court fees for possession so that he is
deterred from seeking his ejectment. Reliance in this regard is
placed by the Trial Court on Hasn Ali vs. Akbari Begum Akbari @
Hajjan 133 (2006) DLT.
4. I fully agree with the reasoning given by the learned Civil Judge.
Therefore, I find no infirmity in this order of the Court.
5. It may, further be pertinent here to mention that the respondent has
also claimed damages at the rate of Rs.10,000/- and the Court has
directed that the respondent/plaintiff will pay eventually the court
fees at whatever rate the damages are paid to him. Therefore, no
advance court fee on the arrears of damage or at the rate of
damages as claimed by the respondent is to be paid at this point of
time.
6. I feel that the learned counsel for the petitioner has not been able to
make out any case for jurisdictional error or illegality or
impropriety in the impugned order which may persuade this Court
to set aside or interfere with the impugned order.
7. Accordingly, the revision petition is dismissed as being without
any merit.
8. Pending applications also stand disposed of.
9. File be consigned to record room.
V.K. SHALI, J.
OCTOBER 08, 2015
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