HARISH CHAND Vs. SOM NATH

JUDGEMENT

(1.) BY filing this revision petition under Article 227 of the Constitution of India, defendant no.2 Harish Chand has assailed order dated 24.08.2012 (Annexure P-1) passed by learned trial court, thereby dismissing application (Annexure P-4) moved by defendants no.1 and 2 (petitioner and proforma respondent no.2) under Order 7 Rule 11 of the Code of Civil Procedure (in short ­ CPC) for rejection of plaint due to non-payment of ad valorem court fee.

(2.) RESPONDENT no.1 ­ plaintiff has filed suit vide plaint (Annexure P-2) for possession of the disputed property by mandatory injunction alleging that defendants were licensees under the plaintiff and their license stood terminated. The plaintiff also sought mesne profits from the date of filing of suit onwards. Defendants no.1 and 2, in their application (Annexure P-4), alleged that since the plaintiff is claiming possession of the suit property and mesne profits, the plaintiff is liable to pay ad valorem court fee on market value of the suit property. The aforesaid application was resisted by the plaintiff by filing reply (Annexure P-5) alleging that suit for mandatory injunction is maintainable against the licensee, and therefore, plaintiff is not liable to pay ad valorem court fee.

(3.) PLAINTIFF 's version is that defendants were licensees in the suit property under the plaintiff and their license stands terminated. Consequently, the plaintiff is entitled to seek relief of mandatory injunction against the defendants and is, therefore, not required to pay ad valorem court fee on market value of the suit property, which is payable in a simple suit for possession of the suit property. As regards mesne profits, the plaintiff has not claimed any amount of mesne profits for the period prior to filing of the suit. The plaintiff has claimed mesne profits since the date of filing of suit, for which separate court fee is not payable.