Unknown vs Smt Mamta Agarwal And
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Uttarakhand High Court

Unknown vs Smt Mamta Agarwal And on 28 October, 2025

Author: Pankaj Purohit

Bench: Pankaj Purohit

                                                       2025:UHC:9477
HIGH COURT OF UTTARAKHAND AT NAINITAL
       Writ Petition Misc. Single No.2516 of 2021
                        28th October, 2025

Smt Ankita Agarwal and
another                                       ............Petitioners

                               Versus

Smt Mamta Agarwal and
another                                     ............Respondents
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Presence:-
Mr. Nagesh Aggarwal, Advocate for the petitioners.
Mr. Ramji Shrivastava, Advocate for respondent no.1.
There is no representation for respondent no.2.
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Hon'ble Pankaj Purohit, J.

This writ petition has been filed under Article 227 of the Constitution of India, whereby the petitioners- defendants have put to challenge the judgment and order dated 29.09.2021, passed by learned IVth Additional District Judge, Dehradun, in Civil Revision No.142 of 2019, Smt. Mamta Agarwal Vs. Smt. Ankita Agarwal and others, whereby the revision petition filed by the respondent no.1-plaintiff was allowed and the judgment and order passed by learned trial court dated 16.10.2019 whereby issue nos.3 and 4 were decided in favour of the petitioners-defendants against respondent no.1-plaintiff was set aside.

2. Facts of the case in brief are that an Original Suit No.410 of 2016, Mamta Agarwal Vs. Ankita Agarwal and others, was instituted in the court of learned Ist Additional Civil Judge (S.D.) for permanent injunction as well as mandatory injunction (subsequently relief (B) was added by way of an amendment) for delivery of possession of the suit property. The suit was filed by the

2025:UHC:9477 respondent no.1-plaintiff on the premise that the petitioner-defendant nos.1 and 3 were the licensee of the respondent no.1-plaintiff and after revocation of the license the respondent no.1-plaintiff wanted to recover the possession of the suit property.

3. Separate written statements have been filed by the petitioner-defendant nos.1 and 2. In the written statement a plea has been taken that the court fees has not been properly paid by the respondent-plaintiff.

4. The learned trial court has framed the following issues which are extracted hereinbelow:-

3. D;k oknh }kjk okn dk lgh ewY;kadu fd;k x;k gS\

4. D;k oknh }kjk i;kZIr U;k;"kqYd vnk fd;k x;k gS\

5. These issues were decided by the learned Ist Additional Civil Judge (S.D.) vide judgment and order dated 16.10.2019 and the respondent no.1-plaintiff was directed to pay the court fees ₹1,04,920/- on the basis of the market value of the property i.e., ₹13,93,500/-. So far as the court fees for relief 'A' permanent injunction, it was concerned, it was found to be up to date.

6. It is feeling aggrieved by judgment and order dated 16.10.2019 respondents-plaintiffs moved a revision petition before the learned District Judge, Dehradun, which was registered as Civil Revision No.142 of 2019, Mamta Agarwal Vs. Ankita Agarwal and others. So far as issue no.3 is concerned an appeal was preferred in Misc.

Appeal No.91 of 2019, Mamta Agarwal Vs. Ankita Agarwal and others. The revision filed by the respondents-plaintiffs was allowed by the judgment and order dated 29.09.2021 by the learned IVth Additional District Judge, Dehradun, and the order passed by the trial court dated 16.10.2019 was set aside. It is feeling

2025:UHC:9477 aggrieved the petitioners-defendants nos.1 and 3 are before this Court.

7. It is contended by learned counsel for the petitioners-defendants that the respondent no.1-plaintiff by the relief B prayed for delivery of the possession, but the relief was so worded that it appears to be a mandatory injunction for delivery of possession from the petitioners-defendants. Actually by relief B the vacant possession of the property was recovered.

8. Learned counsel for the petitioners-defendants has drawn attention of this Court to Section 7 (v) II of the Court Fees Act, 1870 (hereinafter referred to as "the Act") which is quoted hereunder:-

"where the subject-matter is a building or garden- according to the market-value of the building or garden, as the case may be.

9. Learned counsel for the petitioners-defendants submits that here in the case in hand that the possession was sought to be recovered and therefore the provision of Section 7 (v) II of the Act shall be attracted and therefore the trial court was justified in asking the petitioner to deposit the court fees on the basis of the market value of the building from where the possession was sought to be recovered.

10. Per contra, learned counsel for the respondents-plaintiffs has drawn attention of this Court to para no.11 of the impugned judgment and order dated 29.09.2021 to submit that the case was with regard to the recovery of the possession from the property after revocation of the license, therefore, the prayer which was made in relief-B was to deliver possession from the petitioner-defendants. The respondent no.1-plaintiff

2025:UHC:9477 wanted to recover possession by a mandatory injunction and not to declare her title.

11. He further submits that if the recovery of possession simpliciter was prayed for by the respondent no.1-plaintiff from the petitioners-defendants in that case the court fees should have been paid on the market value, but in the case in hand mandatory injunction was prayed for delivery of possession of the license.

12. Learned counsel for the respondent no.1- plaintiff has placed reliance upon judgment of Hon'ble Supreme Court in the case of Sant Lal Jain Vs. Avtar Singh reported in (1985) 2 SCC 332 wherein it has been stated that for recovery of the possession from the licensee, a suit for mandatory injunction is maintainable.

13. Relevant paras of the aforesaid judgment are extracted below for ready reference:-

"6. Now the parties are bound by the following factual findings recorded by the learned Additional District Judge in the first appeal, namely:

(1) that the appellant who had become the sole proprietor of M/s Jain Motors in 1967 though at the time of the lease of the property by the original owner Lt.-Col. Sadan Singh to Jain Motors in 1963 he was only one of its partners, was the lessee of the property;

(2) that the respondent had become a licensee of the suit shed under the appellant when the appellant was in possession of the whole of the demised premises including the suit shed as tenant under the original owner;

(3) that the licence in favour of the respondent had been revoked before the institution of the present suit and;

(4) that subsequent to the decision in the first appeal on December 7, 1978 the respondent had purchased the entire property from the original owner by a sale-deed dated August 27, 1979. In these circumstances, there is no merger of the lease of the whole property by its original owner in favour of the appellant by reason of the sale of the entire property by the original owner in favour of the respondent or of the licence given by the appellant to the respondent which had been revoked prior to the date of the suit. The lease in favour

2025:UHC:9477 of the appellant continues, and it is not disputed that under the Act of 1949 referred to above, even the tenant of a vacant land in Patiala town cannot be evicted therefrom except in accordance with the provisions of that Act. In K.K. Verma v. Union of India [AIR 1954 Bom 358 : ILR 1954 Bom 950 : 56 Bom LR 308] Chagla, C.J. presiding over a Division Bench has observed that in India a landlord can only eject his erstwhile tenant by recourse to law and by obtaining a decree for ejectment. In Milka Singh v. Diana [AIR 1964 J&K 99 :

1964 Kash LJ 141] it has been observed that the principle that once a licensee always a licensee would apply to all kinds of licences and that it cannot be said that the moment the licence is terminated, the licensee's possession becomes that of a trespasser. In that case, one of us (Murtaza Fazal Ali, J. as he then was) speaking for the Division Bench has observed:

"After the termination of the licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under Section 55 of the Specific Relief Act. We might further mention that even under the English Law a suit for injunction to evict a licensee has always been held to be maintainable.

. . .where a licenser approaches the court for an injunction within a reasonable time after the licence is terminated, he is entitled to an injunction. On the other hand, if the licenser causes huge delay, the court may refuse the discretion to grant an injunction on the ground that the licenser had not been diligent and in that case, the licenser will have to bring a suit for possession which will be governed by Section 7(v) of the Court Fees Act."

7. In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction."

14. However learned counsel for the petitioners- defendants also relied upon para no.6 of the same judgment and submits that in such case court fees would

2025:UHC:9477 be payable in accordance with Section 7 (v) II of the Act.

15. This Court is not impressed by the submission made by counsel for the respondent no.1-plaintiff simply for the reason that after revocation of the license, the respondents-plaintiffs should have prayed for the recovery of the possession, but the Relief B was so cleverly drafted, it appears to be a mandatory injunction for delivery of possession of the property.

16. In this way the respondent no.1-plaintiff cannot deprive the State from the Court fees which State is entitled to get in view of the provision of Section 7 (v) II of the Act.

17. Perusal of the aforesaid Section makes it amply clear that where relief is for recovery for possession of a building how the court fees is to be charged. Thus this Court is of the view that the impugned judgment suffers from illegality and the same is liable to be set aside.

18. Accordingly writ petition stands allowed. The judgment and order dated 29.09.2021 passed by learned IVth Additional District Judge, Dehradun, in Civil Revision No.142 of 2019, Smt. Mamta Agarwal Vs. Smt. Ankita Agarwal and others is hereby set aside. The judgment and order passed by learned trial court dated 16.10.2019 is hereby affirmed.

(Pankaj Purohit, J.) 28.10.2025 SK