TEJ BHAN KHANNA Vs. GHIAS ALI

JUDGEMENT

(1.) This appeal arises in the following circumstances . The appellant who was a plaintiff in the Court of first instance, instituted asuit for mandatory injunction directing the defendants to vacate the property in question or in the alternative; for their ejectment from the above property and for a decree for Rs. 590.00 on account of licence-fee, rent and damages for use and occupation. Value for purposes of jurisdiction and court-fee was fixed in two counts. For relief of mandatory injunction directing the defendants to vacate the property, the value was fixed at Rs. 200.00 For the purpose of ejectment, value was fixed at Rs. 240.00 which was stated to be one year's rent.

(2.) In the written statement, a number of preliminary objections were raised apart from the defence on the merits. The suit was pleaded not to be maintainable in the present form and value for purposes of court-fee and jurisdiction was also questioned. These preliminary pleas gave rise to two preliminary issues. On the question of maintainability of the suit in the present form, the decision was given in favour of the plaintiff. It was observed that a suit for mandatory injunction in the circumstances of the present case was maintainable. Reliance for this view was placed on Messrs. Delhi Gate Service Private Ltd. v. Messrs. Caltex {India) Ltd.. and P. N. Nandny v. N- .V. Nunday". On the question of valuation, however, the Court gave the decision against the plaintiff by relying on Sisir Kumar Dutta v Susil Kumar Dutta". according to which the suit has to be valued for purposes of court-fee in accordance with section 7 (v) of the Court Fees Act. The plaint was in the circumstances returned to the plaintiff for proper amendment.

(3.) The second appeal in this Court was dismissed in default on 2nd December, 1965 but was restored by me on 29th April, 1966 on payment of Rs. 50.00 as costs which were paid and deposited in Court.