Mandatory injunction requests are unsustainable when a recovery suit is more appropriate.

VIKRAM AGGARWAL, J (ORAL)

By way of the instant revision petition, the petitioners assail order dated 07.02.2023 passed by the Court of Addl. Civil Judge (Sr. Divn.), Siwani, District Bhiwani, vide which the application under Order 7 Rule 11 of the Code of Civil Procedure , 1908 (for short the “CPC”) was partly allowed, directing respondent No.1-plaintiff to pay ad valorem Court fee on the amount of Rs.77000/-.

2. The grievance is that the plaint should have been rejected since a suit for recovery was only maintainable and a suit for mandatory injunction was barred in terms of the provisions of Section 41(h) of the Specific Relief Act , 1963.

3. A suit (Annexure P-1) for mandatory injunction was instituted by respondent No.1-plaintiff (Hardeep Singh) seeking a direction to the defendants to pay the case fee of Rs.77000/-.

4. An application under Order 7 Rule 11 CPC was moved for rejection of plaint on the ground that a suit for mandatory injunction was not available and the efficacious remedy was to file a suit for recovery.

5. The application was opposed by way of reply (Annexure P-3).

6. Vide the impugned order dated 07.02.2023, the application for rejection of plaint was partly allowed and respondent No.1-plaintiff was called upon to pay ad valorem Court fee on the amount of Rs.77000/-, failing which the plaint would be rejected.

7. I have heard learned counsel for the parties.

8. The sole contention of learned counsel for the petitioners is that the suit for mandatory injunction was not maintainable and a suit for recovery should have been filed. He places reliance upon a judgment of a coordinate Bench in Spectrum Life Medical Device Private Limited vs. Emc Super Specialty Hospital Private Limited and others , 2019(3) PLR 353.

9. Per contra, learned counsel for the respondents have submitted that there is no illegality in the impugned order and that once the Court fee had been ordered to be paid, there would be no purpose to file a suit for recovery.

10. In the case of Spectrum Life Medical Device Pvt. Ltd. (supra), a coordinate Bench observed that the suit for mandatory injunction appeared to have been filed only with a view to avoid payment of Court fee and, therefore, a suit for recovery should have been filed by affixing the ad valorem Court fee.

11. This judgment would not come to the aid of the petitioners since in the present case, while dealing with the application for rejection of plaint, the trial Court has already ordered payment of ad valorem Court fee.

12. That being so, no interference is called for in the said order.

Accordingly, the revision petition being devoid of merit is dismissed.