59 +0530 • Vishesh Gaur S/o Late Heeralal Gaur Aged About 39 Years R/o v. • Anushree Bhandari D/o Padam Kumar Bhandara
Case Details
1 2025:CGHC:4359 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 13 of 2025 PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.01.25 12:25:59 +0530 • Vishesh Gaur S/o Late Heeralal Gaur Aged About 39 Years R/o Behind Gajanand Mandir, Vijay Nagar, Durg Tahsil And District Durg (C.G.) Shop Address - Padma Shree Mobiles, Opposite Natraj Studio Polsai Para, Station Road, Durg, Tahsil And District Durg (C.G.) ... Applicant/Defendant versus • Anushree Bhandari D/o Padam Kumar Bhandara (Wrongly Mentioned As S/o)) Aged About 38 Years R/o House No.5, Pushp Kunj, Kotwali Road, Bhopal-Tahsil Huzur, District Bhopal (Madhya Pradesh) ... Respondent/Plaintiff For Applicant
Legal Reasoning
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.” 7. In the matter of Bharat Bhushan Gupta vs. Pratap Narain Verma And Another3, the similar nature of the issues and question came up for consideration before the Hon’ble Supreme Court and it was held that in a Suit in the nature of mandatory injunction in terms of Section 7(iv)(d) of the Court Fees Act, the plaintiff is at liberty to make valuation of the plaint. The Hon’ble Supreme Court has also found that in the said case, valuation which has been made to the tune of Rs.250/- for mandatory injunction and the relevant Paras-23 to 25 read thus:- “23.The nature of the present suit, as noticed hereinabove, makes it evident on the face of record that the appellant-plaintiff has sought the reliefs of mandatory injunction against the defendants for removing themselves and their belongings from the plot in question, while alleging that the defendants were in occupation thereof only as licensees; and were obliged to remove themselves after termination of respective licenses. The plaintiff has also prayed for the relief of perpetual prohibitory injunction that the defendants may not create any third-party rights in the suit property or raise any construction thereon. The plaintiff has valued the suit for the purpose of Court fees and jurisdiction at Rs.250 for each of the reliefs for injunction and at Rs. 1 lakh for 3 (2022) 8 SCC 333 7 damages; and has paid the Court fees accordingly.” “24.It remains trite that it is the nature of relief claimed in the plaint which is decisive of the question of suit valuation. As a necessary corollary, the market value does not become decisive of suit valuation merely because an immovable property is the subject-matter of litigation. The market value of the immovable property involved in the litigation might have its relevance depending on the nature of relief claimed but, ultimately, the valuation of any particular suit has to be decided primarily with reference to the relief/reliefs claimed.” “25.So far as the present suit is concerned, the plaintiff has alleged the defendants to be the licensees and has sought mandatory injunction obliging them to remove themselves and their belongings. Not much of discussion is required to find that with such pleadings, claim of relief of mandatory injunction is not unknown to the legal process. For ready reference, we may refer to the relevant passage from the decision in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370 as under: (SCC p.389, para 65) “65. A suit can be filed by the title-holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or 8 it can be a suit under Section 6 of the Specific Relief Act to recover possession.”” 8. In the matter of B Srinivas Kumar vs. B. Krishnamurty And Another4, the father allowed his son to reside in the house and later on son expelled the father, so the father has filed the Civil Suit for the mandatory injunction. The said Suit was found maintainable and the valuation which has been made according to Section 7(iv)(d) of the Court Fees Act was also found proper. 9. In the matter of Ramkaran (supra) relied upon by the applicant, an injunction Suit was filed, though the subject land belongs to the members of the Scheduled Tribe category. In the circumstances, the Court held that the entire exercise is clearly directed to circumvent the provisions of law and to grab the land belonging to a member of weakest section of the society, inasmuch as Section 167 of the MP Land Revenue Code, 1959 prohibits the sale of a land belonging to a Scheduled Tribe without the permission of Collector. While dismissing the Second Appeal, it was held that the plaintiff has been rightly non-suited by the Courts below. 10.The judgment relied upon counsel for the applicant in the matter of Ramkaran (supra) is distinguishable on facts. 11.In view of the aforesaid discussions, this Court is of the view that the ground which has been raised in the application is not acceptable and accordingly the trial Court has rightly dismissed the application. 4 2010 SCC OnLine Chh 188 12.Resultantly, this Revision fails and is hereby dismissed at the motion 9 stage itself. Priyanka Sd/- (Deepak Kumar Tiwari) Judge
Arguments
: Mr. R.K. Gomasta, Advocate Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board 24.01.2025 1. This Revision has been filed assailing the legality and validity of the order dated 09.01.2024 passed in Civil Suit No.12-A/2023 by the 1st 2 Civil Judge, Senior Division, Durg, whereby the objection raised by the applicant/husband by filing an application under Order 7 Rule 11 read with Section 151 of the CPC was dismissed. 2. Brief facts of the case are that the respondent/plaintiff filed a Civil Suit for mandatory injunction, making an averment inter alia that her marriage was solemnized with the applicant/husband on 01.03.2004 and thereafter, some matrimonial conflicts occurred between them. It has been further averred that a divorce decree was passed vide judgment dated 31.10.2022, in Case No.1474/2017, by the Principal Judge, Family Court, Bhopal. The parents of the wife purchased the subject property- house through a registered sale deed dated 19.05.2011 in the name of wife through Smt. Taradevi W/o Chandrapal and for the purpose of renovation, both husband and wife obtained a loan through IDBI Bank, Branch Polsai Para, District Durg. Being a husband, the applicant is residing in the house with a permissive possession of the wife. After the divorce decree, she asked the husband to vacate the house and a legal notice has also been served, but the husband has refused to do so, so this Suit has been filed and a valuation has been made at Rs.1,000/- and accordingly the court fees have been affixed at Rs.100/-. Hence, this Revision. 3. Learned counsel for the applicant submits that the Suit in the present form is not maintainable. He submits that the wife has categorically admitted that the husband is in possession of the subject property, but no relief was sought for the possession of the subject property. He submits that the Suit has been grossly undervalued, though the market value of 3 the subject property is about Rs.55-60 lakhs and if the said valuation has been made, the Suit is ousted from the jurisdiction of the Civil Judge, Junior Division. He would submit that the subject property has been purchased by the husband and an agreement to sell has also been executed by the husband and earnest money has been paid to the seller before execution of the sale deed. After obtaining the Bank loan, installments have been paid by the applicant/husband and the loan has not been cleared yet. He would further submit that no marital obligation remains with the wife and in the divorce proceeding, he has already paid the permanent alimony to the wife. So the Suit has been filed mischievously, which is also time barred, as the wife has been residing separately since 2014 and the suit has been filed in the year 2022. So the learned trial Court has wrongly dismissed the application preferred by the applicant under Order 7 Rule 11 of the CPC. Lastly, he would place reliance in the matter of Ramkaran vs. Pyaribai And Others1, and prays to allow the Revision. 4. Heard learned counsel for the applicant and also perused the documents annexed with the Revision carefully. 5. It is well settled that while considering an application under Order 7 Rule 11 of the CPC, the Court has to see only the averments in the plaint and the accompanying documents relied upon in the plaint and the facts elicited from the plaintiff by examining him under Order 10 of the CPC. The Court has to presume the facts stated in the plaint as correct. The Court cannot look into the defence set up by the defendants in their 1 1997 RN 38 4 written statement or the application. For the purpose of deciding an application under this Rule, it is only the facts pleaded in the plaint which are to be taken into account and if on the basis of those facts the Suit comes within any of the infirmities enumerated in Rule 11 of Order 7, then alone the plaint is liable to be dismissed. 6. In the present Suit, the wife has taken a specific plea that the subject house was purchased by her parents and the possession of her husband is permissive possession and he is a licensee. In the matter of Sant Lal Jain vs. Avtar Singh2, it is materially observed that once a licensee always a licensee and after the termination of the licence, the licensee is under a clear obligation to surrender his possession to the owner and the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under Section 55 of the Specific Relief Act and this nature of the Suit is maintainable and the relevant Paras-6 to 7 read as under:- “6………….In Milka Singh v. Diana, AIR 1954 Bom 358, 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 licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we 2 (1985) 2 SCC 332 5 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 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 6