1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 312/2002 (Kashinath Mhatarji Ghule & another VERSUS Govind Gopala Shimbre (dead) through L.R.'s 1) Narayan & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri P.B. Patil, counsel for the appellants. Shri Akash Gupta, counsel for the respondents. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 26, 2008. Heard the learned counsel for the parties. The plaintiff is the original defendant. A suit was filed by the plaintiff on a plea that the plaintiff was the owner of the suit property and the defendant was a licensee thereof. It was pleaded by the plaintiff that though the plaintiff had asked the defendant to vacate the suit premises, the defendant did not accede to the requests, and hence, the suit was filed. The plaintiff, therefore, sought a relief of mandatory injunction directing the defendant to remove himself from the suit premises. The defendant denied the claim of the plaintiff and pleaded that he was not a licensee in the suit property but, was a tenant thereof. According to the defendant, the plaintiff could 2 not have instituted the suit without seeking the permission of the rent controller. The trial and the appellate Court, on a consideration of the evidence tendered by the parties on record, recorded a concurrent finding of fact that the plaintiff had succeeded in proving that the defendant was a licensee and the defendant had failed to prove that he was a tenant in the suit premises. The Courts, therefore, decreed the suit of the plaintiff. Since the findings recorded by both the Courts are pure findings of fact and do not give rise to any substantial questions of law, the second appeal is liable to be dismissed. However, before dismissing the same, it was noticed by the Court that the plaintiff had, in effect, sought the possession of the suit property by seeking a relief of mandatory injunction directing the defendant to remove himself from the premises. Since the plaintiff was seeking a relief of possession in the garb of a prayer for mandatory injunction only, both the Courts ought to have considered that the relief could not be granted to the plaintiff in the absence of payment of Court Fee by treating the suit for mandatory injunction as a suit for possession of the property. The relief of mandatory injunction cannot be denied to the 3 plaintiff merely because the plaintiff has not prayed for possession as the plaintiff had indirectly prayed for possession of the suit property by seeking the aforesaid relief of mandatory injunction. However, the plaintiff could not have sought the relief of possession by depicting that the suit was merely for a relief of mandatory injunction though a relief of possession was indirectly sought with paying the necessary Court fees. Having so noticed, on 20.06.2008, this Court asked the counsel for the respondent to seek instructions from the respondent as to whether he is ready to pay the Court Fee on the suit property treating the suit as a suit for possession. Today,Shri Gupta, the learned counsel for the respondent, submits that his client is present in the Court and he is ready and willing to deposit the Court Fees in the trial Court after the same is determined by the trial Court. In this view of the matter, the decree granted in favour of the respondent to take effect only after the respondent deposits the Court Fee by treating the suit for mandatory injunction as a suit for possession of the property. The counsel for the respondent submits that the necessary Court Fees would be paid within a period of two months from today. 4 The appeal is dismissed only in the aforesaid terms and disposed of. JUDGE APTE