Suit for mandatory injunction vis-a-vis suit for possession with reference to court-fee.

It has often been seen that a suit for mandatory injunction is filed in trial courts in India praying relief of eviction of the defendant and handing over of possession to plaintiff instead of a suit for possession. The difference between the two is crucial to be understood as there is a massive difference in the court fees payable in case of the two suits. Let’s check it out.If the suit is one for mandatory injunction, the court fee payable is as per Section 7 (iv) (d) of the Court-Fees Act, 1870, which is upon the valuation of relief as done in the plaint. On the other hand, in suit for possession, the court fee has to be as per the Section 7 (v) of the Act which is ad valorem i.e. as per value of subject matter of the suit i.e. the property in question. The difference can be huge in case the value of immovable property is large which is practically in every case, especially in urban courts.

In this article, we will analyse the two scenarios i.e. suit for mandatory injunction and suit for possession with respect to eviction of occupants of premises owned by plaintiffs. Let me first crystallise the law in one statement and then I can cite a few cases to buttress the view.

The weight of judgments, including few of Supreme Court, appears to suggest that when the relationship between plaintiff and defendant is that of a licensor and licensee, the latter can be sought to be evicted through a suit for mandatory injunction and thus has to pay lesser court-fee. However, courts can refuse to grant injunction in cases where the plaintiff appears to have approached the trial court with huge and unexplained delay. However, when the relationship between plaintiff and defendant is not based on license but is something else, for instance tenancy, then the suit for mandatory injunction would ordinarily not lie. The reason appears to be engrained in the jurisprudential concept of possession and the fundamental difference between license and lease. In the latter case, the lessee or tenant gets a right of possession (could be exclusive) over the property as per the terms of the lease. However, in the former case of license, the occupant does not get any right of possession over the property but his occupation is wholly dependent upon the will of the licensor. Thus, it can be said that possession in case of a lease becomes “settled” as against a license.

Despite my aforesaid understanding of the situation, the fact remains that there is not really a line clearly drawn between the two kinds of cases and one can find judgments covering both scenarios.

Now, let’s see a few cases covering the situation aforesaid.

In Sant Lal Jain v. Avtar Singh,  the Supreme Court held that once a licensee is always a licensee and therefore, mandatory injunction can be obtained against him by the licensor. In the said case, the trial court had refused injunction on the ground that the suit for same was not maintainable as defendant was plaintiff’s tenant. However, first appellate court held that suit was maintainable and that defendant was actually a licensee and therefore mandatory injunction could be granted. High Court, in second appeal, reversed the said view. Supreme Court concurred with first appellate court and held that the relationship was a mere license and that eviction by way of mandatory injunction was in order. It is to be noted that the property in question under possession of licensee was adjacent to the main property in possession of the plaintiff/licensor.

  In Sunil Sharma & Anr. v. Uma Sharma, the Delhi High Court applied the ratio of the aforesaid case and held that suit for injunction would lie against step-son by the step-mother as the permission to reside is a mere license revocable at will of the plaintiff. Therefore, court fee payable would be as per relief of injunction and not possession.

Similar are the judgments of the Delhi High Court in certain other cases. In most of such cases, the relationship between the parties is either based on marriage or blood. However, in one particular case, the Delhi High Court’s Division Bench takes a contrary view to hold that court fee on relief of possession would have to be paid as relief sought was delivery of possession to the plaintiff and because the plaintiff was out of the possession of the suit property. The said judgment may not be good law as it does not consider the judgment of the Supreme Court in Sant Lal Jain’s case.

Hope that was an interesting read. Let me know if you have another insight into the topic.

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