Gahoi Vaishya Samaj Panchayat vs Ashok Kumar Jain & Anr

On due consideration, I.A. No. 4789/2018, which is an application for preponement is allowed.

With the consent of learned counsel for the parties, heard finally.

The legality and validity of the order dated 19.01.2018, passed by 22nd Civil Judge Class I, Bhopal in RCS-A/700911/2000 is called in question in this

petition under Article 227 of the Constitution of India.

The plaintiff/respondent No.1 filed a suit seeking a decree for eviction under Section 12(1)(k), 12(1)(O) and 12(1)(M) of the M.P. Accommodation

Control Act, 1961, vacant possession, arrears of rent and mesne profit against defendant No.1/petitioner, pleading that the suit property was purchased

by his late father vide registered sale deed dated 05.08.1984 and after his death, the said property was orally partitioned between the family members.

The oral partition was confirmed in C.S. No. 90-A/1987 decided on 23.07.1987. Under the partition, the suit property fell into the share of plaintiff and

defendant No.1/petitioner is his tenant as decided in C.S. No. 50-A/1979 filed by the defendant No.1/ petitioner earlier. By way of amendment dated

28.04.2016, para 5-A was incorporated in the plaint as under :-

“5-A That looking to the defence taken by the defendant No.1, denying the title of the plaintiff and denying the landlord-tenant relationship with the

plaintiff, it is alternatively submitted that even if the plaintiff fails to prove the relationship of landlord and tenant, the defendant No.1 may be

considered the licensee of the plaintiff in respect of the suit property. The occupation of the defendant No.1 in the suit accommodation is of a licensee.

The plaintiff is entitled to a decree for possession against the defendant No.1 as the tenancy/licence stands revoked.â€​

In the facts, a prayer of mandatory injunction directing the petitioner to vacate the suit accommodation was also incorporated and valued the suit for

mandatory injunction at Rs.5,000/- and paid the court fees at the rate of Rs. 600/-.

It is seen that the defendant No.1/petitioner filed an application under Order 7 Rule 11 of the C.P.C. interalia stating that the pleadings pertaining to

the petitioner being licensee has been incorporated by the plaintiff and by way of mandatory injunction, relief of possession has been claimed and the

same has been valued at Rs.5,000/-, which is highly improper as the same is required to be valued at market value of the suit property. It is also stated

that for want of notice under the Transfer of Property Act, the suit is not maintainable.

The trial Court by way of order dated 18.07.2016 rejected the application under Order 7 Rule 11 of C.P.C. holding that the suit is filed under

Accommodation Control Act seeking decree of eviction and accordingly the suit has been valued and the court fees paid was found in accordance

with the law.

Thereafter an application for review was filed on the ground that the learned Court has not considered the ratio laid down in the case of Abdul

Hussain and others Vs. Mansoor Ali and others [2009(4) MPLJ] 672, which is an error apparent on the face of the record and prayed that the earlier

order be recalled and the application under Order 7 Rule 11 of the CPC be allowed.

The learned Court vide impugned order dismissed the application for review, hence this petition for quashing the impugned order dated 19.01.2018 and

to allow the application for review and in the alternative, also to set aside the order dated 18.07.2016

The singular contention of the learned counsel for the petitioner that in view of the amended plaint, plaintiff is required to pay the court fees as per the

market value of the suit property as provided under Section 7(v) of the Court Fees Act. Reliance is placed on the case of Abdul Hussain (supra).

Respondent No.1, on the other hand has supported the impugned order. It is submitted that the learned Court has rightly dismissed the application for

review as there was no error apparent on the face of the record.

The case of Abdul Hussain (supra) is distinguishable and not applicable to the facts of the present case. In Abdul Hussain (supra), the suit for

mandatory injunction to handover the possession was filed by the plaintiff after revocation of the licence of the defendant. In such facts and

circumstances,the Division Bench of this Court relying on Sant Lal Jain Vs. Avtar Singh AIR 1985 SC 857 has held that :-

“Where a licensor approaches the court for an injunction within a reasonable time after the licence is terminated, he is entitled to the mandatory

injunction. If the licensor causes huge delay the court may refuse the discretion to grant an injunction on the ground that the licensor had not been

diligent, in that case the licensor will have to bring a suit for possession which will be governed by Section 7 (v ) of the Court Fees Act. Under Section

7(iv)(d) relief for mandatory injunction can be valued as provided but at the same time in case there is non-diligence Court may ask in the facts of the

case that property should be valued at the market value and can direct correction of the valuation made in the plaint so as to bring it in compass of

Section 7(v) of the Court Fees Act as laid down by the Apex Court in the same suit.â€​

Whereas, in the present case, the plaintiff has come up with the case that defendant No.1/petitioner is his tenant and he is entitled to a decree for

vacant possession. By the subsequent amendment the plaintiff has not sought any additional relief, which he had not already claimed, infact he had

contended that if relationship of landlord and tenant is not established, then in the alternate a decree of possession on the basis of licence be granted in

his favour. By no stretch of imagination, it can be said that the plaintiff is seeking a relief which he had not already claimed. Perusal of of para 5-A

makes it clear that, the plaintiff has only said that the relief already claimed by him, if cannot be awarded in his favour on the facts narrated by him,

the very same relief may be given to him on different facts of the pleadings and on the basis of very same facts, has prayed for a decree of

mandatory injunction and paid the court fees as provided under Section 7(iv)(d) of the Court Fees Act.

Under Order 47 Rule 1 of C.P.C., a judgment/order may be opened to review interalia, if there is a mistake or an error apparent on the face of the

record. An error which is not self evident and has to be detected by the process of reasoning can hardly be said to be an error apparent on the face of

the record. In exercise of jurisdiction under Order 47 Rule 1 C.P.C., it is not permissible for an erroneous decision to be reheard and corrected. It is

settled position of law that a review application has limited purpose and cannot be allowed to be an appeal in disguise. Hence, the trial Court has not

committed any perversity or illegality in dismissing petitioner's application for review, which was filed only on the ground of non-consideration of Abdul

Hussain's case (Supra).

In view of the aforesaid, the petition being meritless is dismissed accordingly. No order as to costs.

Certified copy as per rules.