TH MILKA SINGH Vs. TH DINA

JUDGEMENT

(1.) THIS is an application against an order passed by the City Judge Jammu dated 5 -7 -1963 in a suit brought by the plaintiffs for a mandatory injunction directing the defendants to vacate the premises. According to the plaintiffs they were the owners of the house in question and had allowed the defendants to occupy the house for a period of 5 to 6 months in the year 2004. Thereafter, they gave a notice dated 1 -9 -1962 terminating the license and directing the defendants to surrender possession to the owners. A preliminary issue was raised on the question as to how the suit should be valued and the amount of the court fees to be paid on the plaint. The trial court held that the suit was in effect a suit for possession from the defendants and hence a suit for injunction would not lie to eject a licensee. The trial court directed the plaintiffs to amend their plaint and pay court fees in accordance with Section 7(v) of the Court Fees Act. The revision/ was heard by a Single Judge but in view of the substantial question of law involved in it, the case -bas been referred to us.

(2.) LEARNED counsel for the petitioners has -submitted that the present suit for a mandatory injunction directing the defendants licensee to surrender possession was maintainable and such a. suit fell clearly within the purview of Section 7(vi)(d) of the Court Fees Act under which the plaintiff could put his own valuation and it was not necessary to pay court fees on the market value of the property. In support of his argument the learned counsel has relied upon a decision of the Calcutta High Court reported in Prabirendra Nath v. Nanmdra Nath AIR 1958 Cal 179 and a decision of the Punjab High Court reported in Delhi Gate Service Private Ltd. v. M/s Caltex (India) Ltd., New Delhi, AIR 1962 Punj 370. On the other hand learned counsel for the other side has relied upon a Full Bench decision of the Patna High Court reported in Jagdish Chandra Ghose v, Basant Kumar Bose; AIR 1963 Pat 308, another Full Bench decision of the Calcutta High Court reported in Sisir Kumar Dutta v. Sushil Kumar Bose, AIR 1961 Cal 229, and a Division Bench decision or the Bombay High Court reported in Ratilal v. Chandulal, AIR 1947 Bom. 482.

(3.) THE question involved in the present case does not appear to be free from difficulty and as an authoritative pronouncement is necessary by this court, we have to consider "this question in all its comprehensive aspects. It is well settled that the question of court fees to be paid by plaintiff on his plaint must necessarily depend the construction of the plaint in each case, perusal of the plaint in the instant case clearly shows that the plaintiffs had asked for a mandatory injunction against the defendants for vacating the premises on the ground that he was a licensee and his license had been terminated by a valid notice. If the present suit for injunction is maintainable then there can be, no doubt, that court fees will have to be paid under Section 7(iv)(d) of the Court Fees Act which allows the plaintiff to fix any valuation he likes. The matter was considered by a number of High Courts in India and some of the High Courts have held that a suit for possession of the property from a licensee would be a suit for possession and would be covered by Section 7(v) under which the court fees will have to be paid on the subject matter or the market value of the property. In my opinion, before deciding the question as to under which clause the present suit would fall it will be necessary to determine the real status of a licensee. It is well settled that a licensee has no interest in the land and his possession is purely permissive. As early as 1673 Vaughan C.J. in Thomas v. Sorrell, 1673 Vaugh 330 described the status of a licensee thus;