IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2696 of 2009 Date of Decision : December 16, 2009 Ram Gopal ....Petitioner Versus Virender .....Respondent CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Pankaj Maini, Advocate Mr. Pavit Mattewal, Advocate T.P.S. MANN, J. Order dated 28.4.2009 passed by learned Civil Judge (Junior Division), Hisar directing the plaintiff to affix the ad valorem Court fee on his suit for mandatory injunction has been challenged by him in the present revision filed under Article 227 of the Constitution of India. While filing the suit, the plaintiff-petitioner stated that he was owner of residential House No.133/2, Ward No.4, Mohalla Kumharan, Outside Mori Gate, Hisar. He permitted the defendant, who was his son, to reside in the house without payment of any rent on the condition that as and when the plaintiff required the same, the defendant would vacate and deliver its possession to him. The defendant had been occupying the house of the plaintiff as licencee. Later on, the plaintiff cancelled/terminated the licence and required the defendant to vacate Civil Revision No. 2696 of 2009 -2- and deliver the possession of the house to him. As the defendant did not vacate the house, the plaintiff was left with no other option but to file the suit for mandatory injunction. While filing his written statement, the defendant stated that the suit property was joint property belonging to the plaintiff and him, and being co-owner, he was residing in the same. He also took a preliminary objection that the suit was actually a suit for possession and as the suit property was worth more than Rs.4,00,000/-, the plaintiff be directed to deposit Court fee on the said amount for the continuation of the suit. He also filed an application under Order VII Rule 11 read with Section 151 C.P.C. for rejection of the plaint on the aforementioned ground of the plaintiff having not affixed the Court fee upon Rs.4,00,000/- as the suit was practically a suit for possession. The plaintiff submitted his reply mentioning therein that he had filed suit for mandatory injunction, and relief of possession was a consequential one and, therefore, the suit was maintainable as framed. Though the plaintiff/petitioner mentioned in para 1 of the suit that he had purchased the suit property vide registered sale deed No.367 dated 7.7.1938 yet the defendant did not specifically rebut the same. Instead, he came up with the plea that he alongwith the plaintiff and their family members were joint owners of the suit property. The plaintiff had also claimed that he had permitted his son-defendant to reside in the suit property without payment of rent and thus, the Civil Revision No. 2696 of 2009 -3- defendant was staying in the house as a licencee. Once the licence stood revoked as claimed by the plaintiff, the defendant is required to vacate and deliver the possession of the suit property to the plaintiff. It was under these circumstances that the plaintiff had sought the issuance of a mandatory injunction so as to direct the defendant to vacate and deliver the possession of the suit property to him. Apparently, the relief of possession was a consequential one. Therefore, the plaintiff was not required to file a regular suit for possession and pay the Court fee on the market value of the property. Without pleading anything in his written statement as to how he alongwith other family members and the plaintiff were co- owners of the suit property the status of the defendant on the suit property would be that of licencee. This fact has to be considered in the light of specific stand taken by the plaintiff in para 1 of his suit that he had purchased the suit property vide registered sale deed No.367 dated 7.7.1938. The plaintiff filed the suit in the year 2008 claiming himself as owner of the suit property on the basis of sale deed executed in the year 1938. The plaintiff gave his age as 90 years and, therefore, in the year 1938 he must be around 20 years of age. The defendant might not have been born then, and, if born, must be an infant. Under these circumstance, the plea of the defendant that he was co-owner of the suit property is, prima facie, without any substance. In Sohan Singh v. Piara Singh, 2000(3) Punjab Law Civil Revision No. 2696 of 2009 -4- Reporter 255, it was held that it is not necessary on the part of licensor to affix ad valorem Court fee according to the market value of the suit property where permissive possession is established and a decree for mandatory injunction, could always be passed against the licensee. In view of the above, there is no merit in the stand taken by the defendant requiring the plaintiff to affix ad valorem Court fee. Resultantly, the revision is accepted and order dated 28.4.2009 passed by Civil Judge (Junior Division), Hisar directing the plaintiff to attach ad valorem Court fee according to the market value of the suit property is set aside. Keeping in view the action of the defendant in coming up with the frivolous plea of requiring the plaintiff to affix ad valorem Court fee despite the fact that he himself was not a co-owner but a licensee on the suit property and reasserting when he placed on record before the trial Court the Collector's rates showing Rs.7,000/- per yard as the minimum Collector's rate, thinking that it might make the plaintiff, who was his father and who was towards the end of his life span, run away from the litigation, a case is made out for imposing exemplary costs of Rs.10,000/- upon him. Ordered accordingly. ( T.P.S. MANN ) December 16, 2009 JUDGE satish Civil Revision No. 2696 of 2009 -5-