Dismissed

Smt. Renu Mishra v. Goldi Pandey and Others

Allahabad HC28 Mar 2024A227/1529/2024

Case brief

AI extract

What is this about?

A High Court Special Bench dismissed a writ petition filed under Article 227 challenging the affirmation of an order requiring the petitioner to pay ad valorem court fee in a suit for mandatory injunction regarding illegal dispossession. The court held the claim was truly for possession.

What did the court decide?

The petition challenging the assessment of court fee and the dismissal of the subsequent appeal was dismissed at the admission stage itself.

Smt. Renu Mishra vs Goldi Pandey and Others — Civil Procedure and Limitation | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:25930

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Court No. - 8

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Case :- MATTERS UNDER ARTICLE 227 No. - 1529 of 2024

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Petitioner :- Smt. Renu Mishra Respondent :- Goldi Pandey And Others Counsel for Petitioner :- S.Mohd Kazim,Pramod Kumar,Syed Jamal Ahmad

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Hon'ble Jaspreet Singh,J.

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Heard learned counsel for the petitioner.

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By means of the instant petition, the petitioner assails the order dated 31.10.2018 passed by Third Additional District Judge, Lucknow in Misc. Appeal No.191/2018 whereby the appeal was dismissed and the order of the trial Court dated 16.09.2016 has been affirmed.

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The controversy arose when the petitioner as plaintiff had filed a suit before the Civil Judge (Senior Division), Lucknow bearing Regular Suit No.823/2013 seeking a decree of permanent injunction. In the said suit, the property was valued at Rs.20.00 lakhs and the relief claimed was that the defendants be restrained from interfering in the peaceful possession or ousting the plaintiff from the house in question.

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During pendency of the suit, the plaintiff filed an application under Order VI Rule 17 CPC amending the plaint and incorporating certain facts including relating to the title of the property claiming on the basis of a Will said to have been executed on 15.02.2012.

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It was further indicated that during pendency of the suit, the defendants have illegally taken the possession of the ground floor portion of the house in question. It is in the aforesaid circumstances that the petitioner sought to amend the plaint incorporating a decree seeking declaration for which

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property in question was valued at Rs.5.00 lakhs. A relief was incorporated seeking a decree in the nature of mandatory injunction commanding the defendants to hand over the peaceful possession of the ground floor portion to the plaintiff and a declaration of title on the basis of a Will dated 15.02.2021 was also sought. Though the said amendment was allowed, however, an objection was raised regarding valuation and payment of Court fee in terms whereof the trial Court by means of the order dated 16.01.2016 overruled the objection raised by the plaintiff and required the plaintiff to amend the plaint as well as to pay necessary Court Fee as determined by the Munsarim inasmuch as it was found that by virtue of mandatory injunction, the petitioner was claiming the possession of the property in question upon which ad valorem Court fee was liable to be paid. This order of the trial Court dated 16.01.2016 was assailed by the petitioner by filing a Misc. Appeal which also by means the order dated 13.10.2018 has been dismissed.

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The submission of the learned counsel for the petitioner is that since the claim was for mandatory injunction, accordingly, in terms of Section 7(iv)A of the Court Fees Act, the maximum Court Fee as prescribed was Rs.500/- and the plaintiff could not be directed to pay the ad valorem Court fee and the two Courts have committed an error by ignoring the said provision.

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Learned counsel for the petitioner further submits that the lower Appellate Court has committed an error in relying upon the decision of the Apex Court in Shailendra Bhardwaj and others v. Chandra Pal and Another, 2013 (1) ARC 319 for the reasons that the said decision rendered by the Apex Court was in respect of a suit for cancellation of an instrument and it did not relate to a suit for injunction and as such the said decision rendered by the two Courts are bad in law.

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The Court has considered the aforesaid submissions and also perused the material on record.

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At the outset, it may be noticed that in the Court Fee Act, a suit for injunction is governed by Section 7(iv)A as amended in the State of U.P.

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Insofar as the relief claimed by the plaintiff for permanent injunction is concerned, he has valued the property at Rs.20.00 lakhs. Despite the amendment, this has not been changed but by virtue of the amendment, the plaintiff introduced a relief indicating that during pendency of the suit the plaintiff was dispossessed from the ground floor portion and thus to get back the possession, the plaintiff seeks mandatory injunction and for that purpose he has valued the property at Rs.5.00 lakhs upon which it is submitted that the maximum Court fee payable is Rs.500/-.

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Insofar as another relief incorporated regarding declaration of his title on the basis of a Will is concerned, the plaintiff has paid a Court Fee of Rs.200/-. An objection which has been raised is in respect of the relief in the nature of mandatory injunction whereby it has been held that the plaintiff in fact is claiming possession disguised as mandatory ingredients upon which he is liable to pay the Court fee ad valorem as provided in the Court Fees Act.

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Learned counsel for the petitioner could not indicate any provision by virtue of which it could be pointed out that if a relief of possession is claimed, the same can be granted through mandatory injunction or the Court fee of Rs.500/- which is maximum as provided in the Act is payable for the relief of possession. A reference has been made by the learned counsel for the petitioner that in a suit for mandatory injunction for getting back possession from a licencee in such a suit the Court fee is payable as per the suit for

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injunction, hence, the same may be made applicable in the instant case also.

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This submission is clearly fallacious inasmuch as the decision of this Court in Ajab Singh v. Shital Puri (deceased by LRs), 1993 SCC OnLine All 26 is apparently not applicable inasmuch as it is only confined to a suit between the licensor and licensee where the possession technically is not handed over to the licencee rather it is only the user which is with the licencee and the said decision is clearly distinguishable and not applicable to the case in hand.

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Here in the instant suit, it was clearly pleaded and incorporated in the plaint that the plaintiff has been illegally dispossessed. That being the situation, the trial Court as well as the lower Appellate Court has rightly concluded that the plaintiff is required to pay the Court fee in accordance with the provisions of the Court Fees Act ad valorem.

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The Court further finds that the petition has been filed with much delay inasmuch as the appeal was dismissed on 31.10.2018. Learned counsel for the petitioner has pointed out that in Paragraphs No.18 to 20, he has indicated the reasons for delay and having noticed the aforesaid, this Court finds that the latches have been inadequately explained.

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Be that as it may both on merits as well as the latches, this Court is not satisfied with the submission of the learned counsel for the petitioner. The petition is thus misconceived and is accordingly dismissed at the admission stage itself.

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Order Date :- 28.03.2024 Rakesh/-

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Digitally signed by :- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench

Smt. Renu Mishra v. Goldi Pandey and Others

Case brief

What is this about?

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Smt. Renu Mishra v. Goldi Pandey and Others

Case brief

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