Hasan Ali Vs. Akbari Begum @ Akbari Hajjan - Court Judgment

J.P. Singh, J.

1. This Civil Revision Petition under Section 115 of the Code of Civil Procedure is directed against order dated 18.10.2004 passed by the Civil Judge, Delhi.

2. I have heard Mr. V.L.Madan, Advocate learned Counsel for the petitioner and Mr. Subodh K. Pathak, Advocate learned Counsel for the respondent on the point of admission and have gone through the impugned order and copies of the documents filed with the petition.

3. Briefly the facts are that the respondent-plaintiff (hereinafter referred to as the plaintiff) purchased a property situated at Joga Bai extension by means of GPA, agreement to sell, etc. The plaintiff was residing in Meerut and never personally occupied the said property. It is the case of the plaintiff that she permitted her younger brother (petitioner-defendant, hereinafter referred to as the defendant), who was in financial difficulties, to use the said property as a licensee. The defendant after taking permissive possession started a milk dairy. Later on she wanted to sell the property. The defendant then became dishonest and wanted to grab her property. She terminated the license but the defendant refused to quit. To get back the possession a suit for mandatory injunction and occupation charges was filed. The prayer clause is as under:

It is, thereforee most respectfully prayed:

1. To this Hon'ble Court that kindly pass a decree of Mandatory Injunction directing thereby the defendant to remove all the belongings and articles of Milk Diary and business work from the suit premises and handover the physical vacant possession to the plaintiff.

2. This Hon'ble Court may also ordered (sic) to pay the occupation charges at the rate of Rs. 6,500/- per month since the date of issuing the notice till the handing over of the physical possession of the plaintiff and total occupation charges become Rs. 19,500/- till July, 2003. Further occupation charges till the date of handing over the possession.

3. That this Hon'ble Court kindly further directed (sic) to the defendant not to sale, transfer dispose of the suit property in any other person till the pendency of the suit (sic).

4. Any other relief which this Hon'ble Court may deem fit and proper be also passed in favor of the plaintiff and against the defendant, in the interest of justice.

4. The defendant filed written statement raising preliminary objections about the maintainability of the suit, pecuniary jurisdiction of the court and has alleged that he is in possession of the suit property in his own rights. A preliminary issue was framed as under:

Whether the suit of the plaintiff is maintainable in the present form OPP.

5. The learned civil judge held the suit to be maintainable. Hence this petition.

6. Learned Counsel for the petitioner has submitted that admittedly the petitioner-defendant was in exclusive possession of the suit property, thereforee, only a suit for possession was maintainable and not a suit for mandatory injunction and that the judgments cited at the Bar had not been properly interpreted and applied by the learned civil judge. Learned Counsel has submitted that the substance of the plaint ought to have been seen and not the prayer only.

7. As against this learned Counsel for the plaintiff has submitted that the defendant is real younger brother of the plaintiff. He was passing through pitiable financial crisis and had no source of livelihood. Being elder sister the plaintiff allowed him to run a milk dairy in her land so that he could pass his difficult days. This happened in the year 1997. The possession was permissive and no license fee was charged but in due course the defendant's intentions changed and he wanted to usurp her property. He also fabricated some documents and procured electricity connection in his own name without disclosing this to the plaintiff. In the year 2003 the respondent-plaintiff wanted to sell the property because she was in dire need of money and had also received earnest money in the presence of the defendant. The defendant was a witness to the said deed. The defendant had assured her that he would vacate the land but instead he filed a suit for perpetual injunction against the plaintiff on the allegation that he himself was the rightful owner. The said suit is still pending. In these facts and circumstances she terminated his license. thereforee a suit for mandatory injunction for directing the defendant to remove his belongings and handing over the peaceful possession was maintainable.

8. Learned Counsel for the petitioner has vehemently argued that that the learned Civil Judge has wrongly interpreted the following judgments:

(i) Jugal Kishore v. Des Raj Seth reported in 4 (DLT) 1961 571 (FB). In this full bench judgment it was held that while determining the nature of the suit and the relief claimed the plaint has to be read and construed as a whole and its substance should be the guiding factor and not merely the title or the prayer in which the words mandatory injunction might have been used. The facts of the said case are that there was a contract between the parties. It was a business transaction and some consideration as license fee was charged every month. Due to some dispute the license was revoked vide notice and the possession was demanded. Since the possession was not given a suit for mandatory injunction was filed for directing the defendant to vacate the premises and restore the equipment to the plaintiff. The full bench opined that the court has to look and see in each particular case as to what is the real nature of the relief claimed and it is for that purpose that the allegations contained in the plaint as a whole have to be examined. Merely because the expression mandatory injunction is used in the prayer clause cannot always be conclusive against the prayer contemplating a decree for possession and if reading the plaint as a whole it becomes clear that the plaintiff is seeking possession of the property, then it would be open for the court to hold the suit to be one for possession and the suit before the court was found to be for possession and not merely for mandatory injunction. The next question decided by the court was about the value of the suit for the purposes of court fee and jurisdiction, Both the learned Counsel then agreed to fix the value at Rs. 10,000/-. After that the matter was remanded back to the trial court for proceeding in accordance with law. After reading other judgments, I will examine the applicability of this judgment in the present case.

(ii) Sham Lal v. Ramesh Kumar reported in 1971 RLR (N) 65. Brief facts in this case are that appellant was a Railway employee. He gave one room of his allotted house to a neighbour because the said neighbour needed a room for birth of a child to his wife. The defendant did not handover possession. While observing that for determining the question of court fee only the plaint should be looked into and citing the judgment Jugal Kishore v. Des Raj Seth (Supra) relied upon by the respondents, the High Court finally opined that in such circumstances a suit for mandatory injunction directing a licensee defendant to vacate the premises is maintainable and the suit was found to be properly valued and framed. This judgment rather goes against the petitioner-defendant.

(iii) Punjab Exchange v. Rajdhani Grains Ltd. reported in 1975 RLR 485. In the said matter also a suit for mandatory injunction was filed for taking possession of a property. It was a transaction between two companies and document was stated to be a license deed. license fee was regularly paid. On dispute license was revoked. The trial court framed a preliminary issue on maintainability. Relying upon the full Bench judgment in Jugal Kishore (Supra) and after examining the plaint it was found that the suit was for possession and the plaintiff was directed to properly value the suit for the purposes of court fee and jurisdiction. The Civil Revision filed by the plaintiff was dismissed. However permission to amend the plaint was granted.

(iv) Shyam Lal v. Sohan Lal reported in 0044/1979 . In the said matter also the main question was about the revocation of license and prayer for mandatory injunction for vacating the house. After carefully reading /the plaint and revocation of license, it was opined that the claim in substance was for possession and the valuation for the purposes of court fee was governed by Section 7(v) of the Court Fee Act and the plaintiff could not put his own valuation. The High Court opined that the learned munsif had not exercised his jurisdiction illegally or with material irregularity when he directed the plaintiff to pay ad valorem court fee, on the market value of the house in dispute. The revision petition was dismissed.

9. All these judgments including the first cited above, in my view, show that if on facts and circumstances of a given case the suit is found to be for possession then a plaint for grant of mandatory injunction can be allowed to be amended, and payment of court fee can be ordered.

10. As against the above judgments the following judgments have been cited:

(i) Delhi Gate Service Private Limited v. Caltex (India) Ltd. New Delhi reported in (Delhi Bench). Briefly the facts in the said matter are that appellant company (Delhi Gate Service) entered into a petrol dealers agreement with Caltex company. There was a second agreement under which Caltex company agreed to supply equipment to the Delhi Gate Service company at a nominal rent of Re.1/- per month. Then there was a third agreement. The gist of all these agreements was that Delhi Gate Service company was required to sell only such quantities of petroleum products as were supplied to them by the Caltex company and the agreements were terminable by either party on giving one months notice. There was yet a fourth agreement called Service Station Agreement in which Delhi Gate Service company was described as a licensee under the Caltex company and entitled only to temporary use of the service station in common with the Caltex company during the continuance of the petrol dealers agreement. Delhi Gate Service company was to remain in sole possession of the property during the continuance of petrol dealers agreement but this was not to be construed as creating any right, interest or tenancy in favor of Delhi Gate Service company and it was only to remain as a licensee. Some license fee was settled depending upon sale of the products.

Caltex company terminated the dealership and sought immediate possession of the equipment and the premises. Delhi Gate Service company instituted a suit for declaration inter alias for restraining Caltex company from forcibly evicting Delhi Gate Service company. Caltex company also filed a suit for mandatory injunction directing the Delhi Gate Service company to vacate the premises. On the suit of Delhi Gate Service company the following issues were framed:

1. Whether the termination of the two agreements in dispute is illegal, wanton and arbitrary etc. as alleged and if so to what effect?

2. If issue No. 1 is proved, whether the defendant is entitled to the relief claimed and can the relief claimed be specifically enforced?

3. Whether the plaintiffs are tenants in the suit premises?

4. Whether the plea taken up in issue No. 3 is open to the plaintiffs?

5. If issues Nos. 3 and 4 are proved, whether the plaintiffs are liable to be dispossessed forcibly?

6. Relief.

On the suit filed by the Caltex company the following issues were framed:

1. Whether this suit has been instituted properly?

2. Whether the defendants are licensees of the plaintiffs in the suit premises.

All the essential points were decided by the lower court in favor of Caltex company. The suit filed by the Caltex company was decreed while that of Delhi Gate company was dismissed. The relevant point of controversy (which has arisen in the present suit also, before this Court) was whether a suit for possession should have been filed instead of a suit for mandatory injunction under Section 55 of the Specific Relief Act. The Punjab High Court (Delhi Bench) referred to the judgment titled Prabirendra Nath v. Narendra Nath reported in : AIR1958Cal179 in which the owner had allowed his nephew to occupy a portion of his house as a licensee and when he refused to quit, the legal heirs of the licensorbrought a suit for mandatory injunction to get back the premises and ultimately succeeded. Relying upon the said judgment the Punjab High Court (Delhi Bench) finally held that both the suits were rightly decided by the courts below i.e. in favor of Caltex company for mandatory injunction and against Delhi Gate Service company.

(ii) E.P. George v.Thomas John reported in AIR 1984 Ker 224. Brief facts in the said case are that plaintiff had allowed the defendant to use one room for consideration of Rs. 550/- per month or 6 per cent of the total business turnover whichever was higher. The disputes arose and the said agreement was terminated. A suit for mandatory injunction was filed for directing the defendant to remove his articles and prohibitory injunction for restraining him from entering the said room. The trial court passed a decree directing the defendant to remove his articles. The defendant filed appeal. The first appellate court opined that defendant was in exclusive possession. The matter came up before the High Court and was referred to the Division Bench in view of the earlier contradictory judgments. The DB after examining the definition of licensee opined that where a licensorapproaches the court for an injunction within a reasonable time after the license is terminated he is entitled to an injunction (mandatory) and the appeal of the defendant-licensee was dismissed.

(iii) Sant Lal Jain v. Avtar Singh reported in 2004 RLR 464. The Supreme Court opined that the relief could not be denied merely because plaintiff had couched the plaint in the form of a suit for mandatory injunction. The facts in the said case in brief are that the plaintiff took a plot of land on lease from the owner and gave the said land and a shed over it to the defendant on a license for one year. The license was terminated but the defendant did not handover possession. So the plaintiff filed a suit for mandatory inunction. The defendant alleged that there was a relationship of landlord and tenant, thereforee, suit for mandatory injunction was not maintainable. The trial court decided the matter in favor of the defendant. The Additional District Judge on appeal held that there was relationship of licensorand licensee. Ultimately the matter reached the supreme court. The Supreme Court opined that the defendant had become a licensee under the lessee of the property. The license was revoked before institution of the suit for mandatory injunction and the suit was filed without unreasonable delay after termination of the license. thereforee, Section 7(v) of the Court Fee Act was not attracted and since the relief for grant of injunction was discretionary and even if there was some delay, attempt should be made to avoid multiplicity of the suits and the licensorshould not be driven to another round of litigation with all the attendant delay, trouble and expense. The suit is in effect was one for possession though couched in the form of mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found entitled. thereforee, the suit for mandatory injunction was held to be in order. The appeal of the licensorwas allowed with cost throughout. The licensee was directed to deliver the possession of the property to the licensor.

11. As regards the facts and circumstances of the case before this Court the same can be summed up as under:

The plaintiff is elder sister of the defendant. She had a plot of land. Her younger brother the defendant was having hard times. Apparently out of love and affection she bestowed mercy on her brother. She allowed him to run a milk- diary from the said plot of land. No rent or licensee fee was ever charged. It prima facie appears to be a permissive possession to help a brother in crisis. After about 6 years she needed money and wanted to sell the said land. In the sale agreement, the defendant was a witness and had assured the plaintiff that he would quit the plot, but then had second thoughts and refused to give back the plot of land to his sister, rather claimed to be owner. thereforee, his license was terminated vide notice dated 2.5.2003. The suit was filed on 2.8.2003, i.e., soon after the notice. On the basis of the written statement a preliminary issue about maintainability of the suit was framed and the suit for mandatory injunction was found to be maintainable.

12. In the above mentioned facts and circumstances, I am of the opinion that the judgments relied upon by the learned Counsel for the respondent-licensor are applicable and those cited by the learned Counsel for the petitioner-defendant are not attracted in this case. The impugned order, in my opinion, is well reasoned. There is no illegality, or gross irregularity or error in the exercise of jurisdiction in the impugned order so as to call for interference under Section 115 of the Code of Civil Procedure. The petition is, thereforee, dismissed.

13. Nothing said herein will tantamount to expression of opinion on the merits of the case.