BHARAT BHUSHAN GUPTA versus PRATAP NARAIN VERMA & ANR

[2022] 7 S.C.R.

ABHARAT BHUSHAN GUPTA

PRATAP NARAIN VERMA & ANR.

(Civil Appeal No. 4577 of 2022)

BJUNE 16, 2022

[DINESH MAHESHWARI AND VIKRAM NATH, JJ.]

Court Fees Act, 1870: ss. 7(iv)(d), 7(v) – Computation of feespayable in certain suits – Valuation of – On facts, suit for mandatoryand prohibitory injunction and also for damages for use andCoccupation of the suit by appellant against the respondent – Duringthe pendency, an application u/or. 7 r.11 CPC filed by the respondentfor want of pecuniary jurisdiction on the ground that the value ofthe suit property is not taken while computing the court fees –Rejected by the trial court, however, the High Court returned theDplaint for filing the same in the court of appropriate jurisdiction –On appeal, held: Suit for mandatory and prohibitory injunction isnot required to be valued at the market value of the property – It isthe nature of relief claimed in the plaint which is decisive of thequestion of suit valuation– Market value does not become decisiveof suit valuation merely because an immovable property is theEsubject-matter of litigation – Market value of the immovable propertyinvolved in the litigation might have its relevance depending on thenature of relief claimed but, ultimately, the valuation of any particularsuit has to be decided primarily with reference to the relief/reliefsclaimed – On facts, the appellant has valued the reliefs of mandatoryFand prohibitory injunction at the nominal Rs. 250 but, at the sametime, has also valued the suit with reference to the claim of damagesat Rs. 1 lakh and had paid the Court fees accordingly–High Courtrelied only upon the market value of the property to hold thevaluation of the present suit to be arbitrary, which does not standin conformity with law – Thus, the order passed by the High CourtGis set aside.

Allowing the appeal, the Court

HELD: 1.1 The impugned order as passed by the HighCourt with reference to the statement made by the plaintiff in his

cross-examination on the value of the suit property, does notstand in conformity with law and cannot be sustained. [Para7][1169-F-G]

1.2 The nature of the present suit, makes it evident on theface of record that the plaintiff-appellant has sought the reliefs ofmandatory injunction against the defendants for removingthemselves and their belongings from the plot in question, whilealleging that the defendants were in occupation thereof only aslicensees; and were obliged to remove themselves aftertermination of respective licenses. The plaintiff has also prayedfor the relief of perpetual prohibitory injunction that thedefendants may not create any third-party rights in the suitproperty or raise any construction thereon. The plaintiff hasvalued the suit for the purpose of Court fees and jurisdiction atRs. 250 for each of the reliefs for injunction and at Rs. 1 lakh fordamages; and has paid the Court fees accordingly. [Para 9][1170-C-E]

1.3 It remains trite that it is the nature of relief claimed inthe plaint which is decisive of the question of suit valuation. As anecessary corollary, the market value does not become decisiveof suit valuation merely because an immovable property is thesubject-matter of litigation. The market value of the immovableproperty involved in the litigation might have its relevancedepending on the nature of relief claimed but, ultimately, thevaluation of any particular suit has to be decided primarily withreference to the relief/reliefs claimed. [Para 9.1][1170-F]

1.4 So far as the present suit is concerned, the plaintiff hasalleged the defendants to be the licensees and has soughtmandatory injunction obliging them to remove themselves andtheir belongings. With such pleadings, claim of relief of mandatoryinjunction is not unknown to the legal process. [Para 9.2][1170-G-H]

1.5 The discussion as regards maintainability of suit formandatory injunction does not require much elaboration for thesettled position of law as also for the relevant fact that even inthe order impugned, the High Court has not stated anything tothe contrary, so far as the question of maintainability of the suitseeking relief of mandatory injunction is concerned. The High

ACourt rather placed this aspect of the matter beyond the pale ofdoubt while observing, after its extensive reference to the variousdecisions, that the facts of the present case and that of the caseof Mulk Raj Khullar’s case were in parimateria. To this extent,the consideration of the High Court had been in tune with theapplicable legal principles. However, immediately on the nextBstep, the High Court, with respect, committed serious error byreferring to passage in Mulk Raj Khullar’s case in isolation anddetached from the substance, where the Court had indicated wantof any argument about whimsical valuation. That observation inthe decision of Mulk Raj Khullar’s case came in the context ofCobservations in another decision of Delhi High Court in the caseof Padmavati Mahajan v. Yogender Mahajan & Anr., wherein theCourt had observed that suit for injunction could be valued bythe plaintiff in his/her discretion subject to the condition that suchdiscretion ought not to be whimsical. The use of generalisedexpression “whimsical”, without specifications, has been pickedDup by the High Court in the impugned order and then, the marketvalue of the plot in question, as stated by the plaintiff in his cross-examination, has been taken by the Court to be indicative ofarbitrariness in valuation. With respect, the High Court evenmissed out the relevant statement of law in the very passageEreproduced in Mulk Raj Khullar, wherein it was stated in clearterms that such suit was ‘not required to be valued at the marketvalue of the property’. [Para 9.5][1172-D-H; 1173-A]1.6 The High Court has not even considered the overallcircumstances of the present case where the plaintiff has valuedthe reliefs of mandatory and prohibitory injunction at the nominalFRs. 250 but, at the same time, has also valued the suit withreference to the claim of damages at Rs. 1 lakh and had paid theCourt fees accordingly. It is apparent on the face of the recordthat despite unquestionable principle of law that such suit formandatory and prohibitory injunction is not required to be valuedGat the market value of the property, the High Court relied onlyupon the market value of the property to hold the valuation ofthe present suit to be “arbitrary”. Such conclusion of the HighCourt neither stands in conformity with law nor with the frameand the nature of the present suit. [Para 10][1173-B-D]

1.7 The observations in Commercial Aviation case were,in fact, taken note of by the High Court in the impugned judgmenttoo but they cannot be read to mean that in suit for mandatoryinjunction concerning property and thereby seeking certainmandates over the acts/omissions of the defendant, the suit isrequired to be valued as per the market value of the property.Such proposition, for suit valuation on the market value of theproperty involved, irrespective of the nature of relief claimed, ifaccepted, would render the whole scheme of the Court Fees Actconcerning suit valuation with reference to the nature of reliefgoing haywire. [Para 11.2][1174-G-H; 1175-A]1.8 The submission made on behalf of respondent No. 1concerning want of framing of the necessary issues by the trialcourt despite his prayer does not require much comments. Thisis for the simple reason that irrespective of the issues framed,the respondent No. 1, while contesting the suit, chose to raisethe objection regarding suit valuation and jurisdiction of the trialcourt by way of the application under Order VII Rule 11 CPCduring the course of cross-examination of the plaintiff. Thatapplication was rightly rejected by the trial court. The HighCourt’s decision to the contrary is not being approved by us.That being the position, the contention about want of framing ofissues does not hold water any more. [Para 13][1175-C-E]

1.9 The High Court has totally omitted to consider theapplicable provision of law i.e., Section 7(iv)(d) of the Court FeesAct as also the principles of law stated in the very same decisionbeing referred to and relied upon in the impugned order itself.Thus, the impugned order is set aside and that of the trial courtis 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. ErasmoJack de Sequeira (dead) through LRs. 2012 (5) SCC370 : [2012] 3 SCR 841; Malik Mohd Tanveer v. UzmaMalik & Anr. CM(M) 663 of 205; Commercial Aviation

Aand Travel Company and Ors. v. Vimla Pannalal : 1988(3) SCC 423 : [1988] 1 Suppl. SCR 431; MahantPurshottam Dass & Ors. v. Har Narain & Anr. AIR 1978Delhi 114; Joseph Severance & Ors. v. Benny Mathew& Ors. (2005) 7 SCC 667 : [2005] 3 Suppl. SCR 429;Padmavati Mahajan v. Yogender Mahajan & Anr.B(2008) 152 DLT 363 – referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No.4577of 2022.

From the Judgment and Order dated 18.03.2019 of the High Courtof Delhi at New Delhi in Civil Miscellaneous Main Petition bearing numberCM(M) No.961 of 2018.

Arun Mohan, Sr. Adv., Ruchira Gupta, Divyam Agarwal, AnuragSharma, Rajvansh Singh, Advs. for the Appellant.E

Gopal Jha, Gautam Singh, Shreyash Bhardwaj, Nishant Verma,Advs. for the Respondents.

The Judgment of the Court was delivered by

DINESH MAHESHWARI, J.F

Leave granted.

2. This appeal arises out of suit for mandatory and prohibitoryinjunction as also recovery of damages for use and occupation of thesuit property, as filed by the plaintiff-appellant against the defendants-respondents[1] wherein, an application filed by the contesting defendantG(respondent No.1 herein) under Order VII Rule 11 of the Code of CivilProcedure, 1908[2] during the course of plaintiff’s evidence, for rejection

1 Hereinafter, the parties have also been referred to as ‘the plaintiff’ or ‘the defendantNo. 1’ or ‘the defendant No. 2’, as per their status in the suit.H2 ‘CPC’, for short.

of the plaint for want of pecuniary jurisdiction of the Trial Court, wasconsidered and rejected by the Trial Court on 11.07.2018 but, the HighCourt has taken different view of the matter in its impugned orderdated 18.03.2019 with reference to the statement made by the plaintiffin his cross-examination as regards the value of the suit property; andhas ordered return of the plaint for filing the same in the Court ofappropriate jurisdiction.

2.1. It may be observed at the outset that after examining thepetition seeking special leave to appeal in this matter on 26.04.2019, thisCourt, while issuing notice, stayed the operation of the impugned orderof the High Court. It has been pointed out during the course of submissionsthat after the stay order of this Court, the trial of the subject suit proceededfurther and ultimately, the suit was decreed on 31.08.2021; and the appealfiled by the contesting defendant (respondent No. 1 herein) is pending.

3. In the given set of circumstances, we do not propose to dilateon all the factual aspects of the case as the matter is said to be pendingin appeal and all the relevant aspects are required to be left open forexamination by the First Appellate Court. The discussion herein, therefore,is confined only to the correctness and validity of the order passed bythe High Court in regard to the suit valuation and not beyond. Thus, onlya brief reference to the factual aspects, to the extent relevant for thepresent 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 andrecovery of damages. The nature of the suit is specified in the caption ofthe plaint that reads as under: -

“Suit for mandatory injunction directing the Defendant No. 1 toremove himself with all his stuff from one room and open space(shown as ‘A’ and ‘B’ in the map plan) and the Defendant No. 2to remove himself with all his stuff from two rooms (shown as‘C’ and ‘D’ in the map plan) located in Plot No. RZ-28, IndiraPark Extension, Near Hanuman Mandir, Uttam Nagar, New Delhi- 110059 measuring 252 sq. yards, and for permanent prohibitoryinjunction restraining both of them from creating any third partyrights therein or raising any construction thereon, and for paymentof damages with interest and cost.”

A3.2. The plaintiff averred that he was the owner of Plot No. RZ-28, Indira Park Extension, Near Hanuman Mandir, Uttam Nagar, NewDelhi admeasuring 252 sq. yards, for having purchased the same in theyear 1981. The plaintiff further averred that he had raised three-roomstin shed on the said plot in the year 1983-84; that since the plot was lyingunutilised, the defendant No. 1 (respondent No. 2 herein), elder brotherBof the plaintiff, made request for using the plot for storage purposes inconnection with his work as building contractor. Accordingly, thedefendant No. 1 was admitted as gratuitous licensee at will on the plotin question. The plaintiff further averred that in the year 1989-90, thedefendant No. 1 again approached him with request to permit theCdefendant No. 2 (respondent No. 1 herein), who was said to be workingas Munshi with the defendant No. 1, to reside in two rooms of the tinshed, till such time when the plaintiff himself would require the same.The plaintiff alleged that the defendant No. 2 was, accordingly, permittedto reside in two rooms on the plot in question with the understanding thathe would vacate the same as and when asked to do so; and he was alsoDadmitted as gratuitous licensee at will.

3.3. The plaintiff alleged that later on, when he planned to raiseconstruction and asked the defendants to remove themselves and theirbelongings from the plot, they did not do so. The plaintiff further allegedthat the defendant No. 2 himself had built and acquired his own doubleEstorey house opposite to the plot in question and yet did not removehimself with his belongings from the plot in question. It was also averredthat the defendant No. 1 had stopped working as contractor since theyear 2005 and did not require the plot any more but, he also did notremove himself with his building material despite repeated assurances.F3.4. In reference to the above-stated background, the plaintiffaverred that he got served legal notice dated 09.08.2016 terminatinglicenses of the defendants and asking them to remove themselves andalso stated his entitlement to claim damages for unauthorised use andoccupation of the plot in question after expiry of the period of notice.The plaintiff stated his grievance that after service of notice, when heGvisited the plot in question on 25.09.2016, the defendants were foundplanning to raise construction on the plot in question and to create thirdparty rights so as to defeat the legal rights of the plaintiff. Suspectingfoul play by the defendants, the plaintiff filed suit in question for mandatoryand prohibitory injunction against the defendants as also for recovery ofHdamages. The relevant plaint averments concerning cause of action,

jurisdiction of the Trial Court and suit valuation and Court fees, ascontained in paragraphs 10 to 12 of plaint, read as under: -

“10.That cause of action accrued to the Plaintiff against theDefendants on 27.08.2016 with the expiry of the 15 daysnotice period from the date of the receipt thereof, and alsoon 25.09.2016 as stated above.B

11.That this Hon’ble Court has territorial as well as pecuniaryjurisdiction to try the present suit.

12.That the value for the purpose of court fees and jurisdictionis fixed as Rs. 250 for each relief for injunction and as Rs.C1 lac for damages, and court fees worth Rs. 3443.80 isattached.”

3.5.The plaintiff claimed the reliefs in the following terms: -

“It is very humbly prayed before Your Honour to pass decreefor: -

i.mandatory injunction directing the Defendant No. 1 toremove himself with all his stuff from one room and openspace (shown as ‘A’ and ‘B’ in the map plan) located inPlot No. RZ-28, Indira Park Extension, Near HanumanMandir, Uttam Nagar, New Delhi –110059 measuring 252Esq. yards;

ii.mandatory injunction directing the Defendant No. 2 toremove himself with all his stuff from two rooms (shownas ‘C’ and ‘D’ in the map plan) located in Plot No. RZ-28,Indira Park Extension, Near Hanuman Mandir, UttamNagar, New Delhi-110059 measuring 252 sq. yards;

iii.permanent prohibitory injunction restraining the Defendants1 & 2 from creating any third party rights therein or raisingany construction thereon;

iv.recovery of damages to the tune of Rs. 1 lac for the periodGfrom 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 theDefendants;

with interest and cost of litigation.”

A3.6.The defendant No. 2 (respondent No. 1 herein) took up thecontest of the suit with the allegations, inter alia, that the plaintiff washaving no right in the suit property and that the suit was based on falseand fabricated documents; and further that the suit was filed by theplaintiff just to grab the suit property in connivance with his brother, thedefendant No. 1. The defendant No. 2 also alleged that he was in hostileBand undisputed possession of the plot in question.

3.7. The defendant No. 2 further alleged that there was no causeof action to file the suit; and, as regards valuation, the defendant No. 2took the averments to the following effect: -

C“5. That the suit value of the suit property for which the plaintiffhas claiming possession is more than Rs.2.5 Crores, hence thisHon’ble court has no pecuniary jurisdiction to try, entertain andadjudicate the present suit.”

3.8.The following issues were framed on 28.11.2017 in this caseDwhen the parties went to trial[3]: -

“I Whether the suit is maintainable in the present form? OPDII Whether the plaintiff is entitled to decree of mandatory injunctionagainst defendant no. 1, as prayed for in prayer clause (i)? OPP

III Whether the plaintiff is entitled to decree of mandatoryEinjunction against defendant no. 2, as prayed for in prayer clause(ii)? OPP

IV Whether the plaintiff is entitled to decree of permanentinjunction against defendant no. 1, as prayed for in prayer clause(iii)? OPPFV Whether the plaintiff is entitled to decree of recovery ofdamages alongwith cost of litigation, as prayed for in prayer clause(iv) & (v)? OPP

VI Relief.”G3.8.1. We may, in the passing, also point out that at the late stagein the suit, the defendant No. 2 also moved an application under OrderXIV Rule 5 CPC, seeking orders for framing additional issues. This

3 The issues have been extracted from the copy of judgment dated 31.08.2021, as placedHon record with an application for permission to file additional documents.

application was dismissed by the Trial Court by separate order dated31.08.2021.

3.9. Reverting to the proceedings leading to the present appeal, itis noticed that on 20.03.2018, during the cross-examination of the plaintiff,a question was put to him as regards market value of the suit property atthe 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 offiling 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 anapplication under Order VII Rule 11 CPC with the submissions that asper the admitted value of the property at Rs. 1.8 crores, the suit was notof the jurisdiction of the Trial Court and hence, the plaint was required tobe rejected. This application was duly contested by the plaintiff and wasrejected with costs by the Trial Court after noticing that the suit hadbeen valued as per the reliefs claimed in the plaint. The Trial Courtobserved and concluded as under: -

“4. For the purpose of deciding an application under Order 7 Rule11 CPC, only the plaint has to be looked into and the pleadings ofdefendant or the evidence led by the parties cannot be lookedinto. Further, on consideration of the plaint filed by the plaintiff,this court is of the view that the same does disclose cause ofaction. Further, the plaint has been properly valued as per thereliefs claimed in the plaint. Therefore, the application of defendantno.2 under Order 7 Rule 11 CPC is found to be not maintainableand the same is dismissed with cost of Rs.2000/- to be depositedwith the DLSA.”

4. The order aforesaid was challenged by the defendant No. 2 inthe High Court. Long drawn submissions were made by the respectiveparties which were dealt with by the High Court in its impugned detailedorder dated 18.03.2019 with extensive extractions from the citeddecisions.

4.1. The High Court took note of its previous decisions includingthat in the case of Mulk Raj Khullar v. Anil Kapur & Ors. in CS (OS)

ANo. 1855 of 2011 decided on 03.10.2013 [reported as (2013) 139 DRJ303] 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, observedthat in terms of the decision in Sant Lal Jain (supra), the suit formandatory injunction had not been filed after much delay of terminationof alleged licenses. The High Court also observed that though theBcontesting defendant had denied the factum of license but, all such aspectscould only be determined in trial.4.2. The High Court further proceeded to observe that the factsof the present case were in pari materia with those of the case ofMulk Raj Khullar (supra) and as consequence, the suit for mandatoryCinjunction had appropriately been instituted, where the plaintiff had thediscretion to value the suit for the purpose of Court fees and jurisdiction.To this extent, the High Court expressed its disinclination to accept thesubmissions of the contesting defendant but, thereafter, took note of theobservations in Mulk Raj Khullar (supra) that there was no argumentDtherein to the effect that the suit for mandatory injunction was valued ina whimsical manner. After reproducing such passage from the citeddecision, the High Court referred to the statement made by the plaintiffabout market value of the suit property being around Rs. 1.8 crores atthe time of filing of the suit and for this reason, the High Court abruptlyarrived at the conclusion that the valuation of the suit for the purpose ofECourt fees and jurisdiction at Rs. 250 for each of the reliefs of theinjunction was wholly arbitrary.

4.3. With the aforementioned discussion and reasoning, the HighCourt ordered return of the plaint so as to be filed in an appropriateCourt as per valuation. The relevant passages from the impugned order,Fas regards reasoning and conclusion of the High Court, could be usefullyextracted as under: -

“17. However, it cannot be overlooked that the reliance that hasbeen placed on behalf of the respondent no.1 on the verdict ofthis Court in “Mulk Raj Khullar Vs. Anil Kapur & Ors.” (supra)Gthough in facts virtually in pari materia with the facts of the instantcase, as consequence of which, presently, the suit would haveto be held to be one filed for mandatory injunction andappropriately so instituted and thus, granting discretion to therespondent no.1 herein to value the suit for the purpose of CourtHfees 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 theeffect: -

“30. There is no argument stating that the plaintiff hasnot valued the suit for mandatory injunction in anywhimsical manner. I hold that the plaintiff has properlyvalued the suit for the purposes of Court Fee andjurisdiction.”

18. In the facts and circumstances of the instant case, the testimonyof the plaintiff has been recorded and the plaintiff has himselfstated to the effect that the market value of the suit property wasaround Rs.1.8 crores at the time of the filing of the suit. It isapparent thus, that the valuation of the suit for the purpose ofCourt Fees and jurisdiction at Rs.250 for each of the reliefs ofinjunction 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 isdirected to be returned by the learned Trial Court to the plaintiffof the said suit to be filed before Court of appropriate jurisdiction.

20. The learned Trial Court that would be seized of the matterwhere the plaint is instituted after appropriate valuation within aperiod of 30 days from the date of return of the plaint by thelearned Trial Court, shall proceed with the proceedings from thestage where the proceedings were last fixed before the learnedTrial Court with all the evidence recorded therein, to be also readin 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 submissionsas regards merits of the case while controverting the case of thecontesting defendant-respondent. These submissions concerning meritsdo not require any comment herein because, as already noticed, an appealagainst the judgment and decree of the Trial Court is pending; and all therelevant aspects of merits need to be left open for examination by theFirst Appellate Court.

5.1. Learned counsel for the appellant has also made extensivesubmissions concerning maintainability of the suit seeking the reliefs of

Ainjunction, particularly in the case of license. The learned counsel wouldargue that there lies difference between title suit for possession and asuit for mandatory injunction against licensee to remove himself andhis belongings from the premises after determination of license. Thelearned counsel has particularly referred to the decisions in MariaMargarida Sequeira Fernandes & Ors. v. Erasmo Jack de SequeiraB(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 Courthas not decided the question of maintainability of the suit against theplaintiff-appellant.5.2. As regards valuation, learned counsel for the appellant hasCreferred to Section 7(iv)(d) of the Court-fees Act, 1870[4] and has submittedthat the relief of mandatory injunction to direct the defendants to removethe belongings and to vacate the premises after termination of license ismaintainable; and the present suit has, accordingly, been valued for thepurpose of the reliefs of injunction in terms of Section 7(iv)(d) of theDCourt Fees Act and is not required to be valued under Section 7 (v)thereof. That being the position, according to the learned counsel, thepresent suit cannot be considered as undervalued; and there is no suchrequirement of law for valuation of such suit for injunction as per themarket value of the property in question. Apart from the decision of thisCourt in Sant Lal Jain (supra), the learned counsel has referred toEvarious decisions of Delhi High Court, including those in the cases ofMulk 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 meritsFof the case with reference to the assertions that the contesting defendantis in an undisputed possession of the suit property for last 30 years. Asobserved, these aspects pertaining to the merits of the case are beingleft without any comment, for their appropriate consideration by the Courtdealing with the pending appeal against decree.G6.1. As regards suit valuation, learned counsel would submit thatthe impugned order calls for no interference under Article 136 of theConstitution of India for the reason that the suit property was admittedlyhaving 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 beenproperly valued, the plaint has rightly been ordered to be returned forpresentation in the appropriate Court after proper valuation. Learnedcounsel has referred to the decision of this Court in the case ofCommercial Aviation and Travel Company and Ors. v. VimlaPannalal: 1988 (3) SCC 423 to submit that there cannot be any arbitraryvaluation even in terms of Section 7(iv)(d) of the Court Fees Act. It hasalso been submitted that for construing the plaint, substance thereof hasto be examined, as observed by the Full Bench of Delhi High Court inthe case of Mahant Purshottam Dass & Ors. v. Har Narain & Anr.:AIR 1978 Delhi 114.

6.3. Learned counsel for the respondent No. 1 would submit thatin the present case, the plaintiff is, in fact, seeking possession of the suitproperty in the garb of mandatory injunction; that the respondent No. 1was in undisputed possession of the suit property for more than 12 years;and that the ownership of the appellant and the relationship of licensorand licensee has never been accepted by the contesting defendant. Thus,according to the learned counsel, the present suit for mandatory injunctionis not maintainable and in the garb of mandatory injunction, the appellantis seeking recovery of possession whereas such relief is beyond thejurisdiction of the Trial Court. It has also been urged that despite objectionby the respondent No. 1, the Trial Court did not frame the issue on thepoint of jurisdiction and even the prayer for framing of additional issuewas erroneously rejected.

7. Having given thoughtful consideration to the rival submissionsand having examined the material placed on record with reference tothe law applicable, we are clearly of the view that the impugned orderdated 18.03.2019, as passed by the High Court with reference to thestatement made by the plaintiff in his cross-examination on the value ofthe suit property, does not stand in conformity with law and cannot besustained.

8. While dealing with the rival submissions, it would be relevant totake note of the provisions as contained in Section 7(iv)(d) of the CourtFees Act, which would read as under: -

“7. Computation of fees payable in certain suits. - The amountof fee payable under this Act in the suits next hereinaftermentioned 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 theplaint or memorandum of appeal;

In all such suits the plaintiff shall state the amount at which hevalues the relief sought;”

9. The nature of the present suit, as noticed hereinabove, makes itevident on the face of record that the plaintiff-appellant has sought thereliefs of mandatory injunction against the defendants for removingthemselves and their belongings from the plot in question, while allegingthat the defendants were in occupation thereof only as licensees; andDwere obliged to remove themselves after termination of respectivelicenses. The plaintiff has also prayed for the relief of perpetualprohibitory injunction that the defendants may not create any third-partyrights in the suit property or raise any construction thereon. The plaintiffhas 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;Eand has paid the Court fees accordingly.9.1. It remains trite that it is the nature of relief claimed in theplaint which is decisive of the question of suit valuation. As necessarycorollary, the market value does not become decisive of suit valuationmerely because an immovable property is the subject-matter of litigation.FThe market value of the immovable property involved in the litigationmight have its relevance depending on the nature of relief claimed but,ultimately, the valuation of any particular suit has to be decided primarilywith reference to the relief/reliefs claimed.

9.2. So far as the present suit is concerned, the plaintiff has allegedGthe defendants to be the licensees and has sought mandatory injunctionobliging them to remove themselves and their belongings. Not much ofdiscussion is required to find that with such pleadings, claim of relief ofmandatory injunction is not unknown to the legal process. For readyreference, we may refer to the relevant passage from the decision inHMaria Margarida Sequeira Fernandes (supra) as under: -

“65. suit can be filed by the title-holder for recovery of possessionor it can be one for ejectment of an ex-lessee or for mandatoryinjunction requiring person to remove himself or it can be suitunder Section 6 of the Specific Relief Act to recover possession.”

9.3. Further in the case of Sant Lal Jain (supra), this Court referredto decision of the Jammu & Kashmir High Court[5] with approval andheld as under: -

“…In Milka Singh v. Diana AIR 1964 J & K 99, it has beenobserved that the principle that once licencee always licenseewould apply to all kinds of licenses and that it cannot be said thatthe moment the licence is terminated, the licensee’s possessionbecomes that of trespasser. In that case, one of us (MurtazaFazal Ali, J. as he then was) speaking for the Division Bench hasobserved:

“After the termination of the licence, the licensee is under aclear obligation to surrender his possession to the owner and ifhe fails to do so, we do not see any reason why the licenseecannot be compelled to discharge this obligation by way of amandatory injunction under S. 55 of the Specific Relief Act.We might further mention that even under the English Law asuit for injunction to evict licensee has always been held tobe maintainable.

…where licenser approaches the court for an injunction withina reasonable time after the licence is terminated, he is entitledto an injunction. On the other hand, if the licenser causes hugedelay, the court may refuse the discretion to grant an injunctionon the ground that the licenser had not been diligent and in thatcase, the licenser will have to bring suit for possession whichwill 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 appellanthad come to the Court with the suit for mandatory injunction afterany considerable delay which will disentitle him to the discretionaryrelief. Even if there was some delay, we think that in case ofthis kind attempt should be made to avoid multiplicity of suits andthe licensor should not be driven to file another round of suit withall the attendant delay, trouble and expense. The suit is in effect

5 In the case of Milka Singh v. Diana : AIR 1964 J & K 99

Aone for possession though couched in the form of suit formandatory injunction as what would be given to the plaintiff incase he succeeds is possession of the property to which he maybe found to be entitled. Therefore, we are of the opinion that theappellant should not be denied relief merely because he hadcouched the plaint in the form of suit for mandatory injunction.”B

9.4. In fact, in the case of Mulk Raj Khullar (supra) as referredby the High Court in its impugned order, the aforesaid decision in SantLal Jain as also another decision in the case of Joseph Severance &Ors. v. Benny Mathew & Ors.: (2005) 7 SCC 667 were taken noteof and the High Court concluded as follows: -C“16. The legal position that follows is that where suit is filedwith promptitude against licensee whose license is terminated,

Suit for mandatory injunction is maintainable…..”

9.5. The aforesaid discussion as regards maintainability of suit forDmandatory injunction does not require much elaboration for the settledposition 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 thequestion of maintainability of the suit seeking relief of mandatoryinjunction is concerned. The High Court rather placed this aspect of thematter beyond the pale of doubt while observing, after its extensiveEreference to the various decisions, that the facts of the present case andthat of the case of Mulk Raj Khullar (supra) were inpari materia. Tothis extent, the consideration of the High Court had been in tune with theapplicable legal principles. However, immediately on the next step, theHigh Court, with respect, committed serious error by referring to aFpassage in Mulk Raj Khullar’s case in isolation and detached from thesubstance, where the Court had indicated want of any argument aboutwhimsical valuation. That observation in paragraph 30 in the decision ofMulk Raj Khullar’s case came in the context of observations in anotherdecision of Delhi High Court in the case of Padmavati Mahajan v.Yogender Mahajan & Anr.: (2008) 152 DLT 363, wherein the CourtGhad observed that suit for injunction could be valued by the plaintiff inhis/her discretion subject to the condition that such discretion ought notto be whimsical. The use of generalised expression “whimsical”, withoutspecifications, has been picked up by the High Court in the impugnedorder and then, the market value of the plot in question, as stated by theHplaintiff in his cross-examination, has been taken by the Court to be

indicative of arbitrariness in valuation. With respect, the High Court evenmissed out the relevant statement of law in the very passage reproducedin Mulk Raj Khullar, wherein it was stated in clear terms that such suitwas ‘not required to be valued at the market value of the property’.

10. The High Court has not even considered the overallcircumstances of the present case where the plaintiff has valued thereliefs of mandatory and prohibitory injunction at the nominal Rs. 250but, at the same time, has also valued the suit with reference to the claimof damages at Rs. 1 lakh and had paid the Court fees accordingly. It isapparent on the face of the record that despite unquestionable principleof law that such suit for mandatory and prohibitory injunction is notrequired to be valued at the market value of the property, the High Courthas relied only upon the market value of the property to hold the valuationof the present suit to be “arbitrary”. Such conclusion of the High Courtneither stands in conformity with law nor with the frame and the natureof 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 mannerwhatsoever. The said decision related with suit for rendition of accounts,which is one of the species of the suits envisaged by clause (iv) ofSection 7 of the Court Fees Act. Even in that context, this Court,interalia, observed that the plaintiff’s assessment in such plaint aboutthe amount due to his share was guesswork in the absence of anycogent material and would not constitute objective standard of valuation.This Court explained the principles governing the valuation of the suitsfalling 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 FeesAct are concerned, the legislature has left the question of valuationof the relief sought in the plaint or memorandum of appeal to theplaintiff. The reason is obvious. The suits which are mentionedunder Section 7(iv) are of such nature that it is difficult to laydown any standard of valuation. Indeed, the legislature has notlaid down any standard of valuation in the Court Fees Act. UnderSection 9 of the Suits Valuation Act, the High Court may, with theprevious sanction of the State Government, frame rules for thevaluation of suits referred to in Section 7(iv) of the Court FeesAct. Although the Punjab High Court has framed rules underSection 9 of the Suits Valuation Act which are applicable to the

1174SUPREME COURT REPORTS

AUnion Territory of Delhi, such rules do not lay down any standardof valuation with regard to suits coming under Section 7(iv) of theCourt Fees Act. It has already been noticed that under Rule 4(i) ofthe Punjab High Court Rules, the value of suit for accounts forpurposes of court fee will be as determined by the Court Fees Act,which means that the valuation of the relief will have to be made byBthe plaintiff under Section 7(iv)(f) of the Court Fees Act.”11.1. The observations occurring in paragraph 13 of the saiddecision, 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 certainCpositive objective standard may be available for the purpose ofdetermination of the valuation of the relief. If there be materialsor objective standards for the valuation of the relief, and yet theplaintiff ignores the same and puts an arbitrary valuation, the court,in our opinion, is entitled to interfere under Order VII, Rule 11(b)Dof the Code of Civil Procedure, for the court will be in positionto determine the correct valuation with reference to the objectivestandards or materials available to it. In Urmilabala Biswas,v. Binapani Biswas [AIR 1938 Cal 161: 42 CWN 192: 177 1C893] suit was instituted for declaration of title to provident fundmoney amounting to definite sum with prayer for injunctionErestraining the defendant from withdrawing the said money. Itwas held that there was no real distinction between the right torecover money and the right to that money itself, and that therelief should have been valued at the provident fund amount towhich title was claimed by the plaintiff. Thus, it appears thatFalthough in that case the suit was one under Section 7(iv) (c) ofthe Court Fees Act, there was an objective standard which wouldenable the plaintiff and the court too to value the relief correctlyand, in such case, the court would be competent to direct theplaintiff to value the relief accordingly.”

11.2. These observations were, in fact, taken note of by the HighGCourt in the impugned judgment too but they cannot be read to meanthat in suit for mandatory injunction concerning property and therebyseeking certain mandates over the acts/omissions of the defendant, thesuit is required to be valued as per the market value of the property.Such proposition, for suit valuation on the market value of the propertyHinvolved, irrespective of the nature of relief claimed, if accepted, would

render the whole scheme of the Court Fees Act concerning suit valuationwith reference to the nature of relief going haywire. This argument isrequired to be rejected.

12. The decision of the Full Bench of Delhi High Court in thecase of Mahant Purushottam Dass (supra) has also been unnecessarilycited. The suit therein was for declaration and perpetual injunction wherethe Court found that the plaintiff could not have asked for the relief ofinjunction without seeking declaration and the suit, on its nature, washeld 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 submissionmade on behalf of respondent No. 1 concerning want of framing of thenecessary issues by the Trial Court despite his prayer does not requiremuch comments. This is for the simple reason that irrespective of theissues framed, the respondent No. 1, while contesting the suit, chose toraise the objection regarding suit valuation and jurisdiction of the TrialCourt by way of the application under Order VII Rule 11 CPC duringthe course of cross-examination of the plaintiff. That application wasrightly rejected by the Trial Court. The High Court’s decision to thecontrary is not being approved by us. That being the position, thecontention about want of framing of issues does not hold water anymore.

14. For what has been discussed hereinabove, we may simply putthe upshot in other words that the High Court has totally omitted toconsider the applicable provision of law i.e., Section 7(iv)(d) of the CourtFees Act as also the principles of law stated in the very same decisionbeing referred to and relied upon in the impugned order itself. Thus, theimpugned order deserves to be set aside.

15. Accordingly, and in view of the above, this appeal succeedsand is allowed; the impugned order dated 18.03.2019 is set aside andthat of the Trial Court dated 11.07.2018 is restored. Needless to observethat we have not made any observations relating to the merits of thecase, which shall remain open for examination in pending appeal beforethe First Appellate Court.

15.1. There shall be no order as to costs of this appeal.