REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4577 OF 2022
(Arising out of SLP (C) No. 9780 of 2019)
BHARAT BHUSHAN GUPTA ……. APPELLANT(S)
VERSUS
PRATAP NARAIN VERMA & ANR. .…. RESPONDENT(S)
JUDGMENT
Dinesh Maheshwari, J.
Leave granted.
2. This appeal arises out of a suit for mandatory and prohibitory
injunction as also recovery of damages for use and occupation of the suit
property, as filed by the plaintiff-appellant against the defendants-
1
respondents wherein, an application filed by the contesting defendant
(respondent No.1 herein) under Order VII Rule 11 of the Code of Civil
2
Procedure, 1908 during the course of plaintiff’s evidence, for rejection of
the plaint for want of pecuniary jurisdiction of the Trial Court, was
considered and rejected by the Trial Court on 11.07.2018 but, the High
Court has taken a different view of the matter in its impugned order dated
Signature Not Verified
18.03.2019 with reference to the statement made by the plaintiff in his
Digitally signed by
Rajni Mukhi
Date: 2022.06.16
14:24:17 IST
Reason:
1 Hereinafter, the parties have also been referred to as ‘the plaintiff’ or ‘the defendant No. 1’ or
‘the defendant No. 2’, as per their status in the suit.
2 ‘CPC’, for short.
1
cross-examination as regards the value of the suit property; and has
ordered return of the plaint for filing the same in the Court of appropriate
jurisdiction.
2.1. It may be observed at the outset that after examining the petition
seeking special leave to appeal in this matter on 26.04.2019, this Court,
while issuing notice, stayed the operation of the impugned order of the
High Court. It has been pointed out during the course of submissions that
after the stay order of this Court, the trial of the subject suit proceeded
further and ultimately, the suit was decreed on 31.08.2021; and the
appeal filed by the contesting defendant (respondent No. 1 herein) is
pending.
3. In the given set of circumstances, we do not propose to dilate on
all the factual aspects of the case as the matter is said to be pending in
appeal and all the relevant aspects are required to be left open for
examination by the First Appellate Court. The discussion herein,
therefore, is confined only to the correctness and validity of the order
passed by the High Court in regard to the suit valuation and not beyond.
Thus, only a brief reference to the factual aspects, to the extent relevant
for the present purpose, would suffice.
3.1. The plaintiff-appellant had filed the subject suit bearing No.
427419 of 2016 in the Court of Senior Civil Judge, South West District,
Dwarka, New Delhi for mandatory and prohibitory injunction and recovery
2
of damages. The nature of the suit is specified in the caption of the plaint
that reads as under: -
“Suit for mandatory injunction directing the Defendant No. 1 to
remove himself with all his stuff from one room and open space
(shown as ‘A’ and ‘B’ in the map plan) and the Defendant No. 2 to
remove himself with all his stuff from two rooms (shown as ‘C’ and
‘D’ in the map plan) located in Plot No. RZ-28, Indira Park
Extension, Near Hanuman Mandir, Uttam Nagar, New Delhi -
110059 measuring 252 sq. yards, and for permanent prohibitory
injunction restraining both of them from creating any third party
rights therein or raising any construction thereon, and for payment
of damages with interest and cost.”
3.2. The plaintiff averred that he was the owner of Plot No. RZ-28,
Indira Park Extension, Near Hanuman Mandir, Uttam Nagar, New Delhi
admeasuring 252 sq. yards, for having purchased the same in the year
1981. The plaintiff further averred that he had raised three-rooms tin shed
on the said plot in the year 1983-84; that since the plot was lying
unutilised, the defendant No. 1 (respondent No. 2 herein), elder brother of
the plaintiff, made a request for using the plot for storage purposes in
connection with his work as building contractor. Accordingly, the
defendant No. 1 was admitted as a gratuitous licensee at will on the plot
in question. The plaintiff further averred that in the year 1989-90, the
defendant No. 1 again approached him with a request to permit the
defendant No. 2 (respondent No. 1 herein), who was said to be working
as Munshi with the defendant No. 1, to reside in two rooms of the tin
shed, till such time when the plaintiff himself would require the same. The
plaintiff alleged that the defendant No. 2 was, accordingly, permitted to
reside in two rooms on the plot in question with the understanding that he
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would vacate the same as and when asked to do so; and he was also
admitted as a gratuitous licensee at will.
3.3. The plaintiff alleged that later on, when he planned to raise
construction and asked the defendants to remove themselves and their
belongings from the plot, they did not do so. The plaintiff further alleged
that the defendant No. 2 himself had built and acquired his own double
storey house opposite to the plot in question and yet did not remove
himself with his belongings from the plot in question. It was also averred
that the defendant No. 1 had stopped working as contractor since the
year 2005 and did not require the plot any more but, he also did not
remove himself with his building material despite repeated assurances.
3.4. In reference to the above-stated background, the plaintiff averred
that he got served legal notice dated 09.08.2016 terminating licenses of
the defendants and asking them to remove themselves and also stated
his entitlement to claim damages for unauthorised use and occupation of
the plot in question after expiry of the period of notice. The plaintiff stated
his grievance that after service of notice, when he visited the plot in
question on 25.09.2016, the defendants were found planning to raise
construction on the plot in question and to create third party rights so as
to defeat the legal rights of the plaintiff. Suspecting foul play by the
defendants, the plaintiff filed suit in question for mandatory and prohibitory
injunction against the defendants as also for recovery of damages. The
relevant plaint averments concerning cause of action, jurisdiction of the
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Trial Court and suit valuation and Court fees, as contained in paragraphs
10 to 12 of plaint, read as under: -
“10. That a cause of action accrued to the Plaintiff against the
Defendants on 27.08.2016 with the expiry of the 15 days
notice period from the date of the receipt thereof, and also on
25.09.2016 as stated above.
11. That this Hon’ble Court has territorial as well as pecuniary
jurisdiction to try the present suit.
12. That the value for the purpose of court fees and jurisdiction is
fixed as Rs. 250 for each relief for injunction and as Rs. 1 lac
for damages, and court fees worth Rs. 3443.80 is attached.”
3.5. The plaintiff claimed the reliefs in the following terms: -
“It is very humbly prayed before Your Honour to pass a decree
for: -
i. mandatory injunction directing the Defendant No. 1 to
remove himself with all his stuff from one room and open
space (shown as ‘A’ and ‘B’ in the map plan) located in Plot
No. RZ-28, Indira Park Extension, Near Hanuman Mandir,
Uttam Nagar, New Delhi –110059 measuring 252 sq. yards;
ii. mandatory injunction directing the Defendant No. 2 to
remove himself with all his stuff from two rooms (shown as
‘C’ and ‘D’ in the map plan) located in Plot No. RZ-28, Indira
Park Extension, Near Hanuman Mandir, Uttam Nagar, New
Delhi-110059 measuring 252 sq. yards;
iii. permanent prohibitory injunction restraining the Defendants 1
& 2 from creating any third party rights therein or raising any
construction thereon;
iv. recovery of damages to the tune of Rs. 1 lac for the period
from 28.08.2016 to 27.09.2016; and
v. recovery of further damages @ Rs. 1 lac per month w.e.f.
28.09.2016 till the actual vacation of the premises by the
Defendants;
with interest and cost of litigation.”
3.6. The defendant No. 2 (respondent No. 1 herein) took up the
contest of the suit with the allegations, inter alia, that the plaintiff was
having no right in the suit property and that the suit was based on false
and fabricated documents; and further that the suit was filed by the
5
plaintiff just to grab the suit property in connivance with his brother, the
defendant No. 1. The defendant No. 2 also alleged that he was in hostile
and undisputed possession of the plot in question.
3.7. The defendant No. 2 further alleged that there was no cause of
action to file the suit; and, as regards valuation, the defendant No. 2 took
the averments to the following effect: -
“5. That the suit value of the suit property for which the plaintiff
has claiming possession is more than Rs.2.5 Crores, hence this
Hon’ble court has no pecuniary jurisdiction to try, entertain and
adjudicate the present suit.”
3.8. The following issues were framed on 28.11.2017 in this case
3
when the parties went to trial : -
“I Whether the suit is maintainable in the present form? OPD
II Whether the plaintiff is entitled to decree of mandatory injunction
against defendant no. 1, as prayed for in prayer clause (i)? OPP
III Whether the plaintiff is entitled to a decree of mandatory
injunction against defendant no. 2, as prayed for in prayer clause
(ii)? OPP
IV Whether the plaintiff is entitled to a decree of permanent
injunction against defendant no. 1, as prayed for in prayer clause
(iii)? OPP
V Whether the plaintiff is entitled to a decree of recovery of
damages alongwith cost of litigation, as prayed for in prayer clause
(iv) & (v)? OPP
VI Relief.”
3.8.1. We may, in the passing, also point out that at the late stage in the
suit, the defendant No. 2 also moved an application under Order XIV Rule
5 CPC, seeking orders for framing additional issues. This application was
dismissed by the Trial Court by a separate order dated 31.08.2021.
3.9. Reverting to the proceedings leading to the present appeal, it is
noticed that on 20.03.2018, during the cross-examination of the plaintiff, a
3 The issues have been extracted from the copy of judgment dated 31.08.2021, as placed on
record with an application for permission to file additional documents.
6
question was put to him as regards market value of the suit property at
the time of filing of the suit, which he stated to be around Rs. 1.8 crores.
The said question and its answer read as under: -
“Q. What was the market value of the suit property at the time of
filing of the suit?
A. The approximate value of the suit property was around Rs.
1.8 crores, at the time of filing the suit.”
3.10. After the answer aforesaid, the defendant No. 2 moved an
application under Order VII Rule 11 CPC with the submissions that as per
the admitted value of the property at Rs. 1.8 crores, the suit was not of
the jurisdiction of the Trial Court and hence, the plaint was required to be
rejected. This application was duly contested by the plaintiff and was
rejected with costs by the Trial Court after noticing that the suit had been
valued as per the reliefs claimed in the plaint. The Trial Court observed
and concluded as under: -
“4. For the purpose of deciding an application under Order 7
Rule 11 CPC, only the plaint has to be looked into and the
pleadings of defendant or the evidence led by the parties cannot
be looked into. Further, on consideration of the plaint filed by the
plaintiff, this court is of the view that the same does disclose a
cause of action. Further, the plaint has been properly valued as
per the reliefs claimed in the plaint. Therefore, the application of
defendant no.2 under Order 7 Rule 11 CPC is found to be not
maintainable and the same is dismissed with a cost of Rs.2000/-
to be deposited with the DLSA.”
4. The order aforesaid was challenged by the defendant No. 2 in the High
Court. Long drawn submissions were made by the respective parties
which were dealt with by the High Court in its impugned detailed order
dated 18.03.2019 with extensive extractions from the cited decisions.
7
4.1. The High Court took note of its previous decisions including that in
the case of Mulk Raj Khullar v. Anil Kapur & Ors. in CS (OS) No. 1855
of 2011 decided on 03.10.2013 [reported as (2013) 139 DRJ 303 ] as also
the decision of this Court in the case of Sant Lal Jain v. Avtar Singh :
AIR 1985 SC 857 . The High Court, inter alia, observed that in terms of
the decision in Sant Lal Jain (supra), the suit for mandatory injunction
had not been filed after much delay of termination of alleged licenses.
The High Court also observed that though the contesting defendant had
denied the factum of license but, all such aspects could only be
determined in trial.
4.2. The High Court further proceeded to observe that the facts of the
present case were in pari materia with those of the case of Mulk Raj
Khullar (supra) and as a consequence, the suit for mandatory injunction
had appropriately been instituted, where the plaintiff had the discretion to
value the suit for the purpose of Court fees and jurisdiction. To this extent,
the High Court expressed its disinclination to accept the submissions of
the contesting defendant but, thereafter, took note of the observations in
Mulk Raj Khullar (supra) that there was no argument therein to the effect
that the suit for mandatory injunction was valued in a whimsical manner.
After reproducing such a passage from the cited decision, the High Court
referred to the statement made by the plaintiff about market value of the
suit property being around Rs. 1.8 crores at the time of filing of the suit
and for this reason, the High Court abruptly arrived at the conclusion that
8
the valuation of the suit for the purpose of Court fees and jurisdiction at
Rs. 250 for each of the reliefs of the injunction was wholly arbitrary.
4.3. With the aforementioned discussion and reasoning, the High
Court ordered return of the plaint so as to be filed in an appropriate Court
as per valuation. The relevant passages from the impugned order, as
regards reasoning and conclusion of the High Court, could be usefully
extracted as under: -
“17. However, it cannot be overlooked that the reliance that has
been placed on behalf of the respondent no.1 on the verdict of this
Court in " Mulk Raj Khullar Vs. Anil Kapur & Ors ." (supra) though
in facts virtually in pari materia with the facts of the instant case,
as a consequence of which, presently, the suit would have to be
held to be one filed for a mandatory injunction and appropriately
so instituted and thus, granting a discretion to the respondent no.1
herein to value the suit for the purpose of Court fees and
jurisdiction, yet it cannot be overlooked that in the said verdict
relied upon " Mulk Raj Khullar Vs. Anil Kapur & Ors . " (supra)
itself vide para 30 thereof, it has been observed to the effect: -
“ 30. There is no argument stating that the plaintiff
has not valued the suit for mandatory injunction in
any whimsical manner. I hold that the plaintiff has
properly valued the suit for the purposes of Court
Fee and jurisdiction .”
18. In the facts and circumstances of the instant case, the
testimony of the plaintiff has been recorded and the plaintiff has
himself stated to the effect that the market value of the suit
property was around Rs.1.8 crores at the time of the filing of the
suit. It is apparent thus, that the valuation of the suit for the
purpose of Court Fees and jurisdiction at Rs.250 for each of the
reliefs of injunction is wholly arbitrary.
19. In view of the valuation of the property at being thus, at Rs.
1.8 crores as per the testimony of the plaintiff himself, the plaint is
directed to be returned by the learned Trial Court to the plaintiff of
the said suit to be filed before a Court of appropriate jurisdiction.
20. The learned Trial Court that would be seized of the matter
where the plaint is instituted after appropriate valuation within a
period of 30 days from the date of return of the plaint by the
learned Trial Court, shall proceed with the proceedings from the
stage where the proceedings were last fixed before the learned
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Trial Court with all the evidence recorded therein, to be also read
in the case.
21. The petition is disposed of accordingly.”
5. Seeking to challenge the order so passed by the High Court, learned
senior counsel for the appellant has made elaborate submissions as
regards merits of the case while controverting the case of the contesting
defendant-respondent. These submissions concerning merits do not
require any comment herein because, as already noticed, an appeal
against the judgment and decree of the Trial Court is pending; and all the
relevant aspects of merits need to be left open for examination by the
First Appellate Court.
5.1. Learned counsel for the appellant has also made extensive
submissions concerning maintainability of the suit seeking the reliefs of
injunction, particularly in the case of a license. The learned counsel would
argue that there lies difference between a title suit for possession and a
suit for mandatory injunction against a licensee to remove himself and his
belongings from the premises after determination of license. The learned
counsel has particularly referred to the decisions in Maria Margarida
Sequeira Fernandes & Ors. v. Erasmo Jack de Sequeira (dead)
through LRs. : 2012 (5) SCC 370 and Sant Lal Jain (supra). In this
regard too, it is noticed that in the impugned order, the High Court has not
decided the question of maintainability of the suit against the plaintiff-
appellant.
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5.2. As regards valuation, learned counsel for the appellant has
4
referred to Section 7(iv)(d) of the Court-fees Act, 1870 and has submitted
that the relief of mandatory injunction to direct the defendants to remove
the belongings and to vacate the premises after termination of license is
maintainable; and the present suit has, accordingly, been valued for the
purpose of the reliefs of injunction in terms of Section 7(iv)(d) of the Court
Fees Act and is not required to be valued under Section 7 (v) thereof.
That being the position, according to the learned counsel, the present suit
cannot be considered as undervalued; and there is no such requirement
of law for valuation of such a suit for injunction as per the market value of
the property in question. Apart from the decision of this Court in Sant Lal
Jain (supra), the learned counsel has referred to various decisions of
Delhi High Court, including those in the cases of Mulk Raj Khullar
(supra) and Malik Mohd Tanveer v. Uzma Malik & Anr. : CM(M) 663 of
205, decided on 18.07.2016 .
6. Per contra , learned counsel for the defendant-respondent No. 1 has
also attempted to make several submissions in relation to the merits of
the case with reference to the assertions that the contesting defendant is
in an undisputed possession of the suit property for last 30 years. As
observed, these aspects pertaining to the merits of the case are being left
without any comment, for their appropriate consideration by the Court
dealing with the pending appeal against decree.
4 Hereinafter also referred to as ‘the Court Fees Act’.
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6.1. As regards suit valuation, learned counsel would submit that the
impugned order calls for no interference under Article 136 of the
Constitution of India for the reason that the suit property was admittedly
having the market value of more than Rs. 1.8 crores and the pecuniary
jurisdiction of the Senior Civil Judge, Dwarka, New Delhi was only Rs. 3
lakhs and hence, the suit could not have been tried by the said Court.
6.2. According to the learned counsel, the suit having not been
properly valued, the plaint has rightly been ordered to be returned for
presentation in the appropriate Court after proper valuation. Learned
counsel has referred to the decision of this Court in the case of
Commercial Aviation and Travel Company and Ors. v. Vimla
Pannalal : 1988 (3) SCC 423 to submit that there cannot be any arbitrary
valuation even in terms of Section 7(iv)(d) of the Court Fees Act. It has
also been submitted that for construing the plaint, substance thereof has
to be examined, as observed by the Full Bench of Delhi High Court in the
| Purshottam Dass & Ors. v. Har Narain & Anr. | : AIR |
|---|
| 6.3. | | Learned counsel for the respondent No. 1 would submit that in the |
|---|
present case, the plaintiff is, in fact, seeking possession of the suit
property in the garb of mandatory injunction; that the respondent No. 1
was in undisputed possession of the suit property for more than 12 years;
and that the ownership of the appellant and the relationship of licensor
and licensee has never been accepted by the contesting defendant.
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Thus, according to the learned counsel, the present suit for mandatory
injunction is not maintainable and in the garb of mandatory injunction, the
appellant is seeking recovery of possession whereas such a relief is
beyond the jurisdiction of the Trial Court. It has also been urged that
despite objection by the respondent No. 1, the Trial Court did not frame
the issue on the point of jurisdiction and even the prayer for framing of
additional issue was erroneously rejected.
| 7. | | Having given thoughtful consideration to the rival submissions and |
|---|
having examined the material placed on record with reference to the law
applicable, we are clearly of the view that the impugned order dated
18.03.2019, as passed by the High Court with reference to the statement
made by the plaintiff in his cross-examination on the value of the suit
property, does not stand in conformity with law and cannot be sustained .
| 8. | | While dealing with the rival submissions, it would be relevant to take |
|---|
note of the provisions as contained in Section 7(iv)(d) of the Court Fees
Act, which would read as under: -
| “ | 7. | Computation of fees payable in certain suits | | | | . - The amount |
|---|
| of fee payable under this Act in the suits next hereinafter | | | | | | |
| mentioned shall be computed as follows: - | | | | | | |
| ……… | | | | | | |
| (iv) In suits- | | | | | | |
| …. | | | | | | |
| for an injunction | | | . – (d) to obtain an injunction, | | | |
| ….. | | | | | | |
| according to the amount at which the relief sought is valued in the | | | | | | |
| plaint or memorandum of appeal; | | | | | | |
| In all such suits the plaintiff shall state the amount at which he | | | | | | |
| values the relief sought;” | | | | | | |
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9. The nature of the present suit, as noticed hereinabove, makes it
evident on the face of record that the plaintiff-appellant 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 damages; and has paid
the Court fees accordingly.
9.1. 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.
9.2. 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
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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 (supra) as under: -
“ 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 it
can be a suit under Section 6 of the Specific Relief Act to recover
possession.”
9.3. Further in the case of Sant Lal Jain (supra), this Court referred to
5
a decision of the Jammu & Kashmir High Court with approval and held
as under: -
“…In Milka Singh v. Diana AIR 1964 J & K 99 , it has been
observed that the principle that once a licencee always a licensee
would apply to all kinds of licenses 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 S. 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
5 In the case of Milka Singh v. Diana : AIR 1964 J & K 99 .
15
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.”
9.4. In fact, in the case of Mulk Raj Khullar (supra) as referred by the
High Court in its impugned order, the aforesaid decision in Sant Lal Jain
as also another decision in the case of Joseph Severance & Ors. v.
| Benny Mathew & Ors.: | (2005) 7 SCC 667 | were taken note of and the |
|---|
High Court concluded as follows: -
| “16. The legal position that follows is that where a suit is filed with | | |
|---|
| promptitude against a licensee whose license is terminated, a Suit | | |
| for mandatory injunction is maintainable…..” | | |
| 9.5. | | The aforesaid discussion as regards maintainability of suit for |
|---|
mandatory injunction does not require much elaboration for the settled
position of law as also for the relevant fact that even in the order
impugned, the High Court has not stated anything to the contrary, so far
as the question of maintainability of the suit seeking relief of mandatory
injunction is concerned. The High Court rather placed this aspect of the
matter beyond the pale of doubt while observing, after its extensive
reference to the various decisions, that the facts of the present case and
that of the case of Mulk Raj Khullar (supra) were in pari materia. To this
extent, the consideration of the High Court had been in tune with the
applicable legal principles. However, immediately on the next step, the
High Court, with respect, committed serious error by referring to a
16
passage in Mulk Raj Khullar’s case in isolation and detached from the
substance, where the Court had indicated want of any argument about
whimsical valuation. That observation in paragraph 30 in the decision of
Mulk Raj Khullar’s case came in the context of observations in another
decision of Delhi High Court in the case of Padmavati Mahajan v.
| Yogender Mahajan & Anr. | : (2008) 152 DLT 363, | wherein the Court had |
|---|
observed that a suit for injunction could be valued by the plaintiff in
his/her discretion subject to the condition that such discretion ought not to
be whimsical. The use of generalised expression “whimsical”, without
specifications, has been picked up by the High Court in the impugned
order and then, the market value of the plot in question, as stated by the
plaintiff in his cross-examination, has been taken by the Court to be
indicative of arbitrariness in valuation. With respect, the High Court even
missed out the relevant statement of law in the very passage reproduced
in Mulk Raj Khullar, wherein it was stated in clear terms that such a suit
was ‘ not required to be valued at the market value of the property’ .
10. The High Court has not even considered the overall
circumstances of the present case where the plaintiff has valued the
reliefs of mandatory and prohibitory injunction at the nominal Rs. 250 but,
at the same time, has also valued the suit with reference to the claim of
damages at Rs. 1 lakh and had paid the Court fees accordingly. It is
apparent on the face of the record that despite unquestionable principle of
law that such a suit for mandatory and prohibitory injunction is not
17
required to be valued at the market value of the property, the High Court
has relied only upon the market value of the property to hold the valuation
of the present suit to be “arbitrary”. Such a conclusion of the High Court
neither stands in conformity with law nor with the frame and the nature of
the present suit.
11. The decision in the case of Commercial Aviation (supra) does
not further the cause of the respondent No. 1 in any manner whatsoever.
The said decision related with a suit for rendition of accounts, which is
one of the species of the suits envisaged by clause (iv) of Section 7 of the
Court Fees Act. Even in that context, this Court, inter alia, observed that
the plaintiff’s assessment in such a plaint about the amount due to his
share was a guesswork in the absence of any cogent material and would
not constitute objective standard of valuation. This Court explained the
principles governing the valuation of the suits falling under Section 7(iv) of
the Court Fees Act in the following terms:
“ 7. So far as suits coming under Section 7( iv ) of the Court Fees
Act are concerned, the legislature has left the question of valuation
of the relief sought in the plaint or memorandum of appeal to the
plaintiff. The reason is obvious. The suits which are mentioned
under Section 7( iv ) are of such nature that it is difficult to lay down
any standard of valuation. Indeed, the legislature has not laid
down any standard of valuation in the Court Fees Act. Under
Section 9 of the Suits Valuation Act, the High Court may, with the
previous sanction of the State Government, frame rules for the
valuation of suits referred to in Section 7( iv ) of the Court Fees Act.
Although the Punjab High Court has framed rules under Section 9
of the Suits Valuation Act which are applicable to the Union
Territory of Delhi, such rules do not lay down any standard of
valuation with regard to suits coming under Section 7( iv ) of the
Court Fees Act. It has already been noticed that under Rule 4( i ) of
the Punjab High Court Rules, the value of suit for accounts for
purposes of court fee will be as determined by the Court Fees Act,
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which means that the valuation of the relief will have to be made
by the plaintiff under Section 7( iv )( f ) of the Court Fees Act. ”
11.1. The observations occurring in paragraph 13 of the said decision,
which are sought to be relied upon by the contesting respondent, read as
under: -
| “ | 13. | | But, there may be cases under Section 7( | | | | | | | iv | ) where certain | | | | | | |
|---|
| positive objective standard may be available for the purpose of | | | | | | | | | | | | | | | | | |
| determination of the valuation of the relief. If there be materials or | | | | | | | | | | | | | | | | | |
| objective standards for the valuation of the relief, and yet the | | | | | | | | | | | | | | | | | |
| plaintiff ignores the same and puts an arbitrary valuation, the | | | | | | | | | | | | | | | | | |
| court, in our opinion, is entitled to interfere under Order VII, Rule | | | | | | | | | | | | | | | | | |
| 11( | | b | ) of the Code of Civil Procedure, for the court will be in a | | | | | | | | | | | | | | |
| position to determine the correct valuation with reference to the | | | | | | | | | | | | | | | | | |
| objective standards or materials available to it. In | | | | | | | | | | | | | Urmilabala | | | | |
| Biswas | | | | , v. | | Binapani Biswas | | [AIR 1938 Cal 161: 42 CWN 192: 177 | | | | | | | | | |
| 1C 893] a suit was instituted for declaration of title to provident | | | | | | | | | | | | | | | | | |
| fund money amounting to a definite sum with a prayer for | | | | | | | | | | | | | | | | | |
| injunction restraining the defendant from withdrawing the said | | | | | | | | | | | | | | | | | |
| money. It was held that there was no real distinction between the | | | | | | | | | | | | | | | | | |
| right to recover money and the right to that money itself, and that | | | | | | | | | | | | | | | | | |
| the relief should have been valued at the provident fund amount to | | | | | | | | | | | | | | | | | |
| which title was claimed by the plaintiff. Thus, it appears that | | | | | | | | | | | | | | | | | |
| although in that case the suit was one under Section 7( | | | | | | | | | | | | | | iv | ) ( | c | ) of |
| the Court Fees Act, there was an objective standard which would | | | | | | | | | | | | | | | | | |
| enable the plaintiff and the court too to value the relief correctly | | | | | | | | | | | | | | | | | |
| and, in such a case, the court would be competent to direct the | | | | | | | | | | | | | | | | | |
| plaintiff to value the relief accordingly. | | | | | | | | | ” | | | | | | | | |
11.2. These observations were, in fact, taken note of by the High Court
in the impugned judgment too but they cannot be read to mean that in a
suit for mandatory injunction concerning a property and thereby seeking
certain mandates over the acts/omissions of the defendant, the suit is
required to be valued as per the market value of the property. Such a
proposition, for suit valuation on the market value of the property
involved, irrespective of the nature of relief claimed, if accepted, would
render the whole scheme of the Court Fees Act concerning suit valuation
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with reference to the nature of relief going haywire. This argument is
required to be rejected.
12. The decision of the Full Bench of Delhi High Court in the case of
Mahant Purushottam Dass (supra) has also been unnecessarily cited.
The suit therein was for declaration and perpetual injunction where the
Court found that the plaintiff could not have asked for the relief of
injunction without seeking declaration and the suit, on its nature, was held
to be governed by clause (v) of the Section 7 of the Court Fees Act. The
said decision has no relevance or application to the present case.
13. Before concluding, we may also observe that the submission
made on behalf of respondent No. 1 concerning want of framing of the
necessary issues by the Trial Court despite his prayer does not require
much comments. This is for the simple reason that irrespective of the
issues framed, the respondent No. 1, while contesting the suit, chose to
raise the objection regarding suit valuation and jurisdiction of the Trial
Court by way of the application under Order VII Rule 11 CPC during the
course of cross-examination of the plaintiff. That application was rightly
rejected by the Trial Court. The High Court’s decision to the contrary is
not being approved by us. That being the position, the contention about
want of framing of issues does not hold water any more.
14. For what has been discussed hereinabove, we may simply put the
upshot in other words that the High Court has totally omitted to consider
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the applicable provision of law i.e., Section 7(iv)(d) of the Court Fees Act
as also the principles of law stated in the very same decision being
referred to and relied upon in the impugned order itself. Thus, the
impugned order deserves to be set aside.
15. Accordingly, and in view of the above, this appeal succeeds and is
allowed; the impugned order dated 18.03.2019 is set aside and that of the
Trial Court dated 11.07.2018 is restored. Needless to observe that we
have not made any observations relating to the merits of the case, which
shall remain open for examination in pending appeal before the First
Appellate Court.
15.1. There shall be no order as to costs of this appeal.
……………………………J.
(DINESH MAHESHWARI)
……………………………J.
(VIKRAM NATH)
NEW DELHI;
JUNE 16, 2022.
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