SARUP SINGH MAN Vs. DARYODHAN SINGH

JUDGEMENT

(1.) Shri Sarup Singh defendant has approached this Court on second appeal challenging the judgment and decree of the learned Senior Subordinate Judge dismissing his appeal and affirming the judgment and decree of the trial Court in favour of Shri Daryaodhan Singh plaintiff granting a mandatory injunction and directing the defendant to quit and vacate the workshop in dispute.

(2.) The principal, as indeed the only, challenge canvassed before me on second appeal relates to the frame of the suit which is the subject-matter of issue No. 2 which reads as under :-

(3.) On appeal from the final decree, the learned counsel for the defendant-appellant challenged the decision of the trial Court on issue No. 4 by submitting that from a reading of the plaint, it appeared that the plaintiff's suit was one for possession, although the prayer was for the relief by way of mandatory injunction. On this submission, it was argued that the plaint should have been valued for purpose of court-fee and jurisdiction as a suit for possession and appropriate court-fee paid on the basis. In support of this submission a recent decision of this Court in Jugal Kishore v. Des Raj Seth, 1968 4 DLT 571, was cited. The lower Appellate Court did not agree with this submission on the view that the defendant had not taken up that plea in the present case. His plea in the written statement, on the contrary, was that the suit was for madatory injunction, but was not maintainable in that form and that it should be a suit for possession. The argument that in case the suit be one for mandatory injunction, then such a relief was not available to the plaintiff, was negatived with the observation that the defendant-appellant had not been able to cite any decision in support of his submission. The view taken by the trial court was upheld on the authority of the decisions in the cases of Tej Bhan Khanna and Prabirendra Nath. In addition, a decision of the Punjab High Court in Pooran Chand v. Malik Mukhbain Singh,1963 PunLR 490, was also relied upon for the same view.