A K GHOSH Vs. DHRUV KUMAR

JUDGEMENT

(1.) The petitioner has assailed order dated 1-10-2004 passed by IIIrd Civil Judge, Class-I, Jabalpur in Civil Suit No. 649-A/2003, by which an application filed by the defendants under Order 7, Rule 11 read with section 151, Civil Procedure Code, dated 28-2-2004 was disposed of by the trial Court with a direction to the petitioner/plaintiff to value the suit in accordance with section 8 of the Suits Valuation Act, 1887 for pecuniary jurisdiction and also to make payment of adequate Court-fees on the plaint.

(2.) The trial Court found that the dispute is in respect of encroachment over 265 sq.ft. land on which defendants had constructed a wall. The plaintiff was not in possession of the property, but sought a decree of declaration and mandatory injunction. The plaintiff though valued the suit for Rs. 39,750/-, but had not paid ad-valorem Court-fees. The trial Court also found that the relief of mandatory injunction was consequential in nature and cannot be granted until and unless suit for declaration is decreed. Holding present suit under section 7(iv)(c) of the Court Fees Act, 1870, the plaintiff was directed to value the suit and to pay adequate Court-fees.

(3.) This order has been assailed by the petitioner on the ground that in fact the relief of mandatory injunction was not consequential in nature, but is an independent relief. He has drawn attention of the Court towards various paragraphs of the plaint and submitted that the suit for declaration and mandatory injunction was valued separately and fixed Court-fees was rightly paid by the plaintiff. The petitioner placed reliance to the judgment of this Court in Waman Vishwanath Dhote vs. Bahvantrao and others, 1949 AIR(Nag) 347, Smt. Sabina alias Farida vs. Mohd. Abdul Wasit, 1997 1 MPLJ 554, M. P. State Electricity Board and another vs. Kamla Sharma and others, 2003 4 MPLJ 233 and submitted that this petition may be allowed.