- (1.) Heard learned counsel for the parties. A Suit being Original Suit No. 265 of 2013 (Smt. Shipra Agarwal vs. Mahadev Singh) was instituted by the respondent/plaintiff seeking mandatory injunction and possession of the suit property. The case set up in the plaint is that the applicant is a licencee and the property was given for stipulated time; upon expiry of the time the applicant did not handover the property. The trial court framed 10 issues and issue no. 4 pertains to the valuation and court fees. The suit was valued at Rs. 1 lac and the court fees paid thereon is Rs. 500/-. The issue has been decided in favour of the plaintiff/respondent and against the defendant/applicant. Submission of the learned counsel for the applicant is that the value of the property, as per the sale-deed, is approximately Rs. 30 lac, therefore, in view of the provisions contained in the Suit Valuation Act 1887 the suit was under valued, therefore, the Court of JSCC/Civil Judge (Senior Division) would have no jurisdiction. Sri Swapnil Kumar, learned counsel appearing for the plaintiff/respondent would submit that the plaint assertions and reliefs claimed for would have to be considered while determining the valuation, the objection raised by the applicant/defendant in the written statement cannot be considered for determining the valuation.
(2.) The defendant claims to be a tenant and not a licencee. Be that as it may, the plaint reflects that the respondent is a licencee and upon expiry of the licence period possession of the suit property has been sought by claiming relief of mandatory injunction. The possession of the licencee for all practical purposes is of the owner himself, once the licence is terminated the licencee is bound to restore possession to the owner and in the event of default the owner is entitled to mandatory injunction to direct the defendant to restore the possession. This Court in Ajab Singh vs. Shital Puri, 1993 AIR(All) 138 , held as follows: The plea that only a suit for possession and not mandatory injunction would lie against a person in occupation of the property as licensee after termination of licence is, however, unsustainable. The possession of the licensee for all practical purposes being of owner himself, once the licence is terminated the licensee is bound to restore the possession to the owner and in the event of default, the owner is entitled to mandatory injunction to direct delivery of possession. In Sam Lal Jain v. Autar Singh, 1985 AIR(SC) 857 , the law on this point has been laid down by the Supreme Court in the following terms (at p. 859 of AIR):-- "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 S. 55 of the Specific Relief Act. We might further mention that even under the English Law a suit for injunction to evict the licensee has always been held to be maintainable....... where a licensor approached 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 licensor causes huge delay, the Court may refuse the discretion to grant an injunction on the ground that the licensor had not been diligent and in that case, the licensor will have to bring a suit for possession which will be governed by S. 7(v) of the Court-Fees Act."
(3.) Once it is held that a suit for mandatory injunction for delivery of possession against a licensee if brought without undue delay is maintainable, the Court-fee payable would be under S. 7(iv-B)(b) of the Court-Fees Act and not S. 7(v) of the Court-Fees Act. On the allegations of the plaint and nature of relief sought, therefore, the Court-fee paid in the suit was sufficient and the defendant-appellant's plea that the plaint should have been rejected as insufficiently stamped was rightly turned down by the Courts below. The Court below were justified in holding that the court fee is payable under Section 7(IV-B)(b) of the Court Fees Act as the plaintiff is seeking mandatory injunction. It is not being disputed that the suit is proceeding before the Civil Judge (Senior Division), the court below noted in the impugned order that the applicant had not stated in the written statement as to what should be the valuation of the suit but only an objection has been raised that the suit is under valued.;