DALIP SINGH, J. - (1.) THIS second appeal has been filed by the defendant-appellant against the judgment and decree dated 11.12.2000 passed by the learned Additional District Judge No. 5, Jaipur City, Jaipur whereby the learned lower appellate Court confirmed the judgment and decree passed by the learned trial Court on 24.7.1997 for mandatory injunction against the defendant-appellant.
(2.) THE facts giving rise are that defendant-appellant was an employee of the plaintiff-respondent and while being in the employment of the plaintiff, he was given a residential accommodation which is the property in dispute as a licensee. The services of the defendant-appellant were terminated and his licence to reside in the said residential premises was also terminated by a notice dated 10.12.1990. He was asked by the aforesaid notice to hand over the vacant residential premises on or before 1.1.1991. Since, the defendant- appellant failed to hand over the vacant possession of the premises, the plaintiff-respondent filed a suit for mandatory injunction directing the defendant-appellant to hand over the vacant possession of the residential apartment which is the property in dispute. The learned trial Court decreed the suit directing the defendant-appellant to hand over the property in dispute to the plaintiff-company and further allowed the mesne profit at the rate of Rs. 1,500/- per month. Being aggrieved by the aforesaid judgment and decree, defendant-appellant preferred an appeal and the learned lower appellate Court by its impugned judgment dated 11.12.2000 affirmed the aforesaid findings passed by the learned trial Court and confirmed the judgment and decree passed by the appellate Court. Consequently, this appeal under Section 100 C.P.C. The principal submission and the substantial question of law which the learned senior counsel Shri A.K. Bhandari has urged is that the suit for mandatory injunction was not maintainable and the plaintiff-respondent was not entitled to the recovery the possession without filing a suit for possession and in a suit for mandatory injunction no decree could be granted. In support of the aforesaid submission, learned counsel appearing for the appellant relied upon the judgment of this Court in the case of Shyam Lal v. Sohan Lal, reported in AIR 1979 Rajasthan 205 wherein while distinguishing the judgment of Jammu and Kashmir High Court in the case of Th. Milka Singh v. Th. Diana reported in AIR 1964 J&K 99 a learned Single Judge of this Court held that prayer for mandatory injunction for vacating the house, in fact, tantamounts to asking for possession and Court fee was liable to be paid by the plaintiff treating the same to be a suit for possession of immovable property and not on the basis of a suit for injunction. The matter before the learned Single Judge in that case came up in revision against the order passed by the trial Court directing the plaintiff to pay the ad valorem court fee on the market value of the house in dispute.
(3.) THE submission of the learned counsel for the appellant was two fold. Firstly, the Court fee paid treating the suit as a suit for mandatory injunction was insufficient as well as that the suit for mandatory injunction seeking a direction against the defendant to hand over the vacant possession was not maintainable and, in fact, a suit for possession ought to have been filed.;