Bharat Bhushan Gupta vs Pratap Narain Verma & Anr.

1.2 The nature of the present suit, 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. [Para 9][1170C-E]

1.3 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. [Para 9.1][1170-F]

1.4 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. With such pleadings, claim of relief of mandatory injunction is not unknown to the legal process. [Para 9.2][1170G-H]

1.5 The 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’s case were in parimateria. 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 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 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., 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 crossexamination, 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’. [Para 9.5][1172-D-H; 1173-A]

1.6 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 required to be valued at the market value of the property, the High Court 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. [Para 10][1173-B-D] & ANR.

1.7 The observations in Commercial Aviation case 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 with reference to the nature of relief going haywire. [Para 11.2][1174-G-H; 1175-A]

1.8 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. [Para 13][1175-C-E]

1.9 The High Court has totally omitted to consider 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 is set aside and that of the trial court is restored. [Paras 14, 15][1175-E-G]

Mulk Raj Khullar v. Anil Kapur & Ors. in CS (OS) No. 1855 of 2011 (2013) 139 DRJ 303; Sant Lal Jain v. Avtar Singh AIR 1985 SC 857 : [1985] 3 SCR 184; Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack de Sequeira (dead) through LRs. 2012 (5) SCC

370 : [2012] 3 SCR 841; Malik Mohd Tanveer v. Uzma Malik & Anr. CM(M) 663 of 205; Commercial Aviation and Travel Company and Ors. v. Vimla Pannalal : 1988

(3) SCC 423 : [1988] 1 Suppl. SCR 431; Mahant

Purshottam Dass & Ors. v. Har Narain & Anr. AIR 1978 Delhi 114; Joseph Severance & Ors. v. Benny Mathew & Ors. (2005) 7 SCC 667 : [2005] 3 Suppl. SCR 429; Padmavati Mahajan v. Yogender Mahajan & Anr.

(2008) 152 DLT 363 – referred to.