HON’BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This revision petition is directed against a part of the order dated 26.07.2010 of the Administrative Civil Judge (ACJ) whereby he dismissed the application of the respondent/defendant under Order 7 Rule 11 CPC and simultaneously directed the petitioner/plaintiff to amend the suit as per Section 7 (v) (e) of the Court Fee Act and to value the suit on the basis of the market value of the suit premises.
2. The petitioner has filed a suit for mandatory and permanent injunction against the respondent seeking possession of one room in flat No. 40, Meena Apartment, 78, I.P.Extension, Patparganj, Delhi (hereinafter referred to as the ‘suit premises’). Both the plaintiff and the defendant are the brothers and living in the suit premises. The plaintiff/petitioner had filed the suit on the averments that the defendant was a licensee in respect of a room in the suit premises. It was further averred that the respondent was allowed to use the drawing room, dining room, kitchen and common bathroom with his family members and the father.
3. An application under Order 7 Rule 11 CPC was filed by the respondent alleging that the suit premises was purchased from the joint family resources and he being the original nominee in the Society’s records, there was no question of his being a licensee in respect of a room therein, which he was occupying and using in his independent right. It was also alleged that the plaintiff was wanting partition in the joint family property and has no cause of action to file the suit against him. It was further submitted that the plaintiff had not correctly valued the suit premises for the purpose of court fees and jurisdiction. It was submitted that the suit being undervalued was liable to be rejected under Order 7 Rule 11 CPC.
4. The learned ACJ vide impugned order while disposing the application of the respondent/defendant under Order 7 Rule 11 CPC directed the petitioner/plaintiff to amend the plaint appropriately and value the suit on the basis of market value of the suit property.
5. It is this part of the impugned order whereby the petitioner has been directed to amend the plaint and value the suit on the basis of the market value of the property, that has been assailed by the petitioner. The respondent defendant whose application under Order 7 Rule 11 CPC was disposed seems to be satisfied with the impugned order.
6. The first and foremost question for consideration would be as to whether the respondent could be said to be the licensee of the petitioner in respect of one room in the suit premises. There is no dispute that both the parties are real brothers. It is also admitted case that in addition to the aforesaid room, the respondent is also using other portions of the suit premises including drawing room, dining room, kitchen and common bathroom etc. It has also been the case of the respondent/defendant that he was the original nominee in respect of the flat in the Society’s records. The plea of the petitioner that the respondent was licensee, has been specifically and categorically denied by the respondent, who has maintained the suit premises to be a joint family property and he being in occupation thereof in his independent right. The provisions relating to suits for mandatory injunctions are contained in Section 39 of the Specific Relief Act, which reads thus:
“39. Mandatory injunctions.- When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts”.
7. It is settled law that relief by way of mandatory injunction is discretionary. The court is required to weigh the amount of substantial mischief done or threatened to the plaintiff and compare it with that of the defendant in the event of grant of injunction. For invoking discretion of mandatory injunction, the court has prima facie to satisfy that there was likelihood of breach of an obligation by the defendant and it is necessary to compel the performance of certain acts by the defendant. In the instant case, in view of the averments of both the parties as regard to their interest in the suit premises, it was too early to conclude that the petitioner was right in saying that the respondent was his licensee in respect of a room in the suit premises. Thus, apparently, what the petitioner was seeking by way of suit was not only mandatory injunction simpliciter, but something more than that. It was in fact, the relief of recovery of possession and declaration, which he seems to be seeking in the suit for mandatory injunction. The relief of recovery of possession and declaration being substantive reliefs, cannot be considered surplage in the suit for mandatory injunction. To the same extent is the decision of Division Bench of this court in Ashok Chaudhary Vs. Dr. (Mrs.) Inderjit Sandhu, 1998 IV AD (Delhi) 917. It is not that the suit for mandatory injunction as filed by the plaintiff was not maintainable but, as noted above it was not a simpliciter suit of mandatory injunction against the licensee, but it had the elements of substantive reliefs of possession and declaration. Thus, the provisions of Section 7 (v) (e) of the Court Fee Act would be attracted and the suit was required to be valued properly at the market value of the property. I do not see any infirmity or illegality in the impugned order directing the petitioner to amend the plaint and value the suit on the basis of market value of the property. The petition has no merit and is hereby dismissed.
M.L. MEHTA, J.
JULY 11, 2012 akb