CR No.5618 of 2005

1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

Civil Revision No.5618 of 2005

Date of Decision: 15.09.2006

Jagdish

...Petitioner

Vs.

Brij Lal

...Respondent

CORAM

Hon'ble Mr.Justice Vinod K.Sharma

Present:

Mr.Rajinder Goel, Advocate,

for the petitioner.

Vinod K.Sharma, J. (Oral)

This revision petition has been filed against the order dated

27.9.2005 passed by the learned Additional District Judge, Kaithal directing

the parties to fix advalorem court fee as the suit was for possession and

relief of mandatory injunction could not be granted in the suit.

Learned counsel for the petitioner placed reliance on the

judgment of Hon'ble High Court of Rajasthan in Puran Mal Modi Vs.

Rajasthan Investors Pvt. Ltd. 2005 (2) RCR (Civil) 490 to contend that

after revocation of licence an owner is entitled to seek possession by way of

mandatory injunction and the court fee would be as required in the case of

suit for mandatory injunction. Paras No.7and 8 of the said judgment read as

under:-

CR No.5618 of 2005

2

“7.

Since the Hon'ble Supreme Court has very categorically

held that suit for mandatory injunction was maintainable, as

such, as to what is the Court fee to be paid will also be

covered by the nature of the suit which is in the instant case a

suit for mandatory injunction, and as such, the court fee

which has been paid treating the suit as a suit for mandatory

injunction is in accordance with law and no fault can be

found with same. It may also be stated here that question

relating to insufficiency of the court fee cannot be allowed to

be raised by the defendant which is settled proposition of law

as laid down by their Lordships of the Supreme Court in Sri

Rathpavarmaraja v. Smt.Vimla reported in AIR 1961 SC

1299 and by the learned Single Judge of this Court in the

case of Khema and others Vs. Shri Bhagwan and others

reported in 1994 (2) RLW 14.

8.

It may also be stated here that the learned counsel for

the respondent has also cited the case of Prabirendra Nath

Nanday and another V. Narendra Nath Nanday reported

in AIR 1958 Calcutta 179 where learned Single Judge of

Calcutta High Court has held that a suit by owner against

licence for mandatory injunction directing him to vacate

premises on termination of licence is maintaiable. A similar

view has been taken by Allahabad High Court in the case of

Ajab Singh V. Shital Puri (deceased by Lrs) reported in

AIR 1993 Allahabad 138 wherein the Allahabad High Court

has held that after the termination of the licence, a suit by the

CR No.5618 of 2005

3

owner for restoration of possession was maintainable and the

Court fee to be paid would be that which is applicable to a

suit for injunction and not one which is applicable in the case

for suit for possession. The learned Judge of the Allahabad

High Court in Ajab Singh's case supra relied upon the

judgment of their Lordships in the case of Sant Lal (supra).”

In view of the law laid down in the above authority, this

revision petition is allowed and the impugned order is set aside.

(Vinod K.Sharma)

15.09.2006

Judge

rp