ASPINWALL AND CO LTD Vs. SOUDAMINI AMMA

JUDGEMENT

(1.) The question that arises for consideration in this Civil Revision Petition is one of court fee. The facts are simple and they lie within a short compass. The plaint schedule property, 35 cents in extent, situated within the Calicut Corporation belonging to the plaintiff-Company, was originally given on licence to Messrs. Dhanalakshmi Corporation as per an indenture dated 22-2-1966 for storing timber logs. The 2nd defendant was an agent of the said Corporation and he was practically in charge of the activities of the Corporation in the plaint schedule properties. According to the plaintiff, the Dhanalakshmi Corporation left the plaint schedule property on 31-3-1971 and the plaintiff continued to be in exclusive possession of the property. Thereupon, the 1st defendant through the 2nd defendant, who is her husband and duly constituted power of attorney holder, entered into an agreement with the plaintiff to allow the defendants to use the plaint schedule property as a licensee for stacking timber under certain conditions which were subsequently reduced to writing. It is the case of the plaintiff that under the agreement the plaintiff shall have the right to enter upon the premises. The agreement was for one year from 1st April 1971 to 31st March 1972. The case of the plaintiff is that on the expiry of the period of agreement on 31-3-1972 the plaintiff wanted the defendants to vacate the premises within a reasonable time and, according to the plaintiff, the 2nd defendant promised to vacate the premises within one month after the expiry of the licence as there were a number of timber logs remaining in the property and they had to be removed also.

(2.) As the defendants did not vacate the premises this suit for a mandatory injunction was filed. The defendants in their written statement also raised a contention that the court fee paid is not correct. An issue on the question of court fee was framed and that was preliminarily heard by the learned Munsiff. The learned Munsiff came to the conclusion that the court fee paid is not correct on the ground that the suit is one for recovery of possession also and in that case the plaintiff has to pay court fee under S.30 of the Kerala Court fees and Suits Valuation Act, 1960. Accordingly, the plaintiff was directed to file a fresh valuation statement, to amend the plaint and to pay the proper court fee. It is against the said order of the learned Munsiff dated 28-3-1973 that the plaintiff has come up in revision.

(3.) Before us the contention of the counsel for the revision petitioner is that the learned Munsiff ought to have found that the owner of an immovable property on termination of a licence can maintain a suit against his licensee for mandatory injunction directing him to vacate the property without praying for possession since the possession of the licensee cannot in the eye of law exclude the possession of the owner.