# Smt. Urmila Devi v. Rajendra Pal Tayal & Ors

- **Citation:** (2023) 1 ILRA 845
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-15
- **Case number:** First Appeal From Order No. 366 of 2021
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-urmila-devi-v-rajendra-pal-tayal-ors-49194
- **Pages:** 7

## Headnote

C.S.C., Sri Ramesh Upadhyay, Sri A.A.
Khan,
Sri
Mohd.
Saleem
Khan,
Sri
Swetashwa Agarwal

Civil Law - Court Fees Act, 1870 -
Section - 7 (iv)(B), 7 (v)(II): - Appeals -
against impugned direction to pay court fees
ad valorem - original suit - for mandatory
injunction - Appellant terminated the license
of defendant's for running pottery Form over
the
suit
property
-
when
defendant/respondent did not give possession
of suit property - plaintiff claiming relief of
possession - court held that - in the light of
judgment of Apex Court in case of Sant Lal
Jain, the original suit would lie for mandatory
injunction - hence, the impugned direction of
trial court to pay fees under section 7(v)(II) is
liable to set aside - court fees paid by the
plaintiff is correct and proper - Appeal allowed
-
direction
issued
for
conclude
suit
expeditiously accordingly. (Para - 18, 24, 26)

Appeal is allowed. (E-11)

List of Cases cited:

## Text

1 All. Smt. Urmila Devi Vs. Rajendra Pal Tayal & Ors.
845
5
Total annual
income (D)
1,36,800/-
6
Deduction
1/3rd (E)
45,600/-
7
Total income
after
1/3rd
deduction
(D-E= F)
1/3 of 1,36,800/-
=91,200/-
8
Multiplier
(G)

(FxG = H)
91,200 x 11
= 10,03,200/-
9
Compensatio
n (H)
10,03,200/-
10
10
Conventional
Heads (I):
(H + I = J)
(a) Loss of
consortium
(b) Loss of
Estate
(c)
Funeral
Expenses
70,000/-
11
Total
Compensatio
n (H+I =J)
1,003,200/- + 70,000/-
=10,73,200/-
12
Interest
7.50%

VII. Conclusion and Directions:

43. The amount of compensation to
which the claimants have thus been found
entitled
shall
be
deposited
by
the
corporation within three months before the
learned tribunal. Thereafter the learned
tribunal shall release the amount to the
claimants without delay. The amount
already disbursed to the claimants (if any)
shall be duly adjusted.

44. The amount of Rs.25,000/-
deposited by the appellant while instituting
the appeal shall be forthwith remitted to the
learned tribunal. The amount shall be paid
to the claimants as part of the awarded
compensation amount.

45. The first appeal from order and
the cross-objections both are decided as
above.
----------
(2023) 1 ILRA 845
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 366 of 2021

Smt. Urmila Devi ...Appellant
Versus
Rajendra Pal Tayal & Ors.
 ...Opposite Parties

Counsel for the Appellant:
Sri Amitabh Agarwal, Sri Kiran Kumar
Arora, Sri Siddharth Singh

Counsel for the Opposite Parties:
C.S.C., Sri Ramesh Upadhyay, Sri A.A.
Khan,
Sri
Mohd.
Saleem
Khan,
Sri
Swetashwa Agarwal

Civil Law - Court Fees Act, 1870 -
Section - 7 (iv)(B), 7 (v)(II): - Appeals -
against impugned direction to pay court fees
ad valorem - original suit - for mandatory
injunction - Appellant terminated the license
of defendant's for running pottery Form over
the
suit
property
-
when
defendant/respondent did not give possession
of suit property - plaintiff claiming relief of
possession - court held that - in the light of
judgment of Apex Court in case of Sant Lal
Jain, the original suit would lie for mandatory
injunction - hence, the impugned direction of
trial court to pay fees under section 7(v)(II) is
liable to set aside - court fees paid by the
plaintiff is correct and proper - Appeal allowed
-
direction
issued
for
conclude
suit
expeditiously accordingly. (Para - 18, 24, 26)

Appeal is allowed. (E-11)

List of Cases cited:

1. Sri Dori Lal Premi Vs Smt. Vidya Devi, Second
Appeal No. 975 of 2013,
846 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Malik Mohd. Tanveer Vs Uzma Malik & anr.,
dated 18.07.2016,

3. Sudhir Bansal & anr. Vs Girish Bansal, 2015
(5) ADJ 624 (DB),

4. Dinesh Kumar Vs A.D.J. Hardwar, 1996 (1)
AWC 433,

5. Azizur Rahman Vs Salaam Khan & anr. (1995
(3) AWC,

6. Sant Lal Jain Vs Avtar Singh, AIR 1985 SC
857,

7. Islam Ahmad Vs Maqsood & anr., 2007 (8)
ADJ 239.

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
appellant and learned counsel for the
respondents.

2. The present appeal is directed
against the order dated 25.04.2014 passed
by the Additional Civil Judge (S.D.), Court
No.2, Bulandshahar whereby the issue no.7
in Original Suit No.1285 of 2008 instituted
by the plaintiff/appellant has been decided
against the plaintiff/appellant and trial court
has directed the plaintiff/appellant to pay
court fees ad valorem.

3. The plaintiff/appellant has instituted
Original Suit No.1285 of 2008 contending
inter-alia that the suit property has been
purchased by the plaintiff/appellant by
registered sale deed dated 24.08.1966 on
which a pottery business in the name of M/s
Tayal
Pottery
was
run
by
the
plaintiff/appellant and defendant/respondent
no.1 Rajendra Pal Tayal. Subsequently, Tayal
Pottery was dissolved with the consent of the
plaintiff/appellant and defendant/ respondent
Rajendra Pal Tayal (since deceased). It is
further pleaded in the plaint that a loan was
taken from the U.P. Financial Corporation,
Kanpur (hereinafter referred to as 'U.P.F.C.')
by M/s Tayal Pottery which was repaid on
13.06.2007, and after discharge of loan, a
registered re-conveyance deed was prepared
in
favour
of
plaintiff/appellant
and
defendants/ respondents.

4. Further case of the plaintiff/appellant
is that after the loan of U.P.F.C. was
discharged, the defendant being the real
brother
of
the
husband
of
the
plaintiff/appellant carried on the business of
pottery. It is submitted that the possession of
defendants/respondents over the suit property
was that of a licencee. The licence has been
terminated by the plaintiff/appellant by
registered notice dated 16.09.2008, and
defendants/respondents were asked to hand
over the possession of the suit property. The
defendants/respondents
did
not
give
possession of the suit property which gave
the cause of action to the plaintiff/appellant to
institute the present suit.

5. In the aforesaid backdrop, the
following relief has been prayed for by the
plaintiff/appellant:-

"अ- यह ग्रक प्रग्रतवादीगण क द्वारा
आदेशात्मक ग्रनशेिाज्ञा आदेग्रशत ग्रकया जावे ग्रक
वह ग्रनम्न वग्रणित प ट्री का दिल वाग्रदनी क दे
और यग्रद प्रग्रतवादीगण ऐसा ना करे त
प्रग्रतवादीगण के ििे पर द्वारा ग्रसग्रवल क ट्ि
अमीन वाग्रदनी क प ट्री उपर क्त का दिल
ग्रदलाया जावे।

ब- यह ग्रक वाग्रदनी क प्रग्रतवादीगण
से दौराने वाद ग्रनम्न वग्रणित पाट्री के इस्तेमाल की
एवज में 8000/-रूपये माग्रसक प्रग्रतवादीगण से
उपय ग िन ग्रदलाया जावे ग्रजस पर यग्रद
आवश्यक हुआ त
 न्याय शुल्क ग्रनष्पादन के समय ग्रदया जायेगा।
1 All. Smt. Urmila Devi Vs. Rajendra Pal Tayal & Ors.
847

स- यह ग्रक वाग्रदनी क प्रग्रतवादीगण
से वाद व्यय ग्रदलाया जावे।

द- यह ग्रक क ई अन्य अऩुत ष
ग्रजसका वाग्रदनी पाने की अग्रिकारी ह ग्रदलाया
जावे।"

6. The trial court framed the issue
with regard to the sufficiency of the court
fee.
According
to
the
defendants/respondents though, the suit has
been instituted for mandatory injunction,
but
essentially
plaintiff/appellant
is
claiming relief of possession. Hence, the
plaintiff/appellant is liable to pay the court
fee ad valorem as provided under Section
7(v)(II) of the Court Fees Act.

7. The trial court after considering the
facts in detail found substance in the
contention of defendants/respondents and
held that as the plaintiff/appellant is
essentially claiming relief of recovery of
possession, therefore, she is liable to pay
court fee ad valorem as per Section 7(v)(II)
of the Court Fees Act, 1887.

8. Challenging the aforesaid order,
learned counsel for the plaintiff/appellant
has contended that the trial court has failed
to appreciate the correct law on the issue
inasmuch as the suit has been instituted by
the plaintiff/appellant for a decree of
mandatory injunction on the ground that
the suit property is in the name of
plaintiff/appellant
and
the
nature
of
possession of the defendants/respondents
over the suit property is of a licencee which
implies
that
the
possession
of
defendants/respondents
over
the
suit
property was only permissive, therefore,
the suit for mandatory injunction is
maintainable, and the plaintiff/appellant is
liable
to
pay
fixed
court
fee
as
contemplated under Section 7(iv-B) of the
Court Fees Act. It is submitted that the trial
court has erroneously held that as the
plaintiff/appellant
under
the
garb
of
mandatory injunction is essentially seeking
relief of possession, therefore, she is liable
to pay court fee ad valorem as provided
under Section 7(v)((II) of the Court Fees
Act. In support of aforesaid contention, he
has placed reliance upon the judgement of
this Court in the case of (Sri Dori Lal
Premi, Advocate Vs. Smt. Vidya Devi)
passed in Second Appeal No.975 of 2013.
He has further placed reliance upon the
judgement of the Delhi High Court in the
case of Malik Mohd. Tanveer Vs. Uzma
Malik and Another decided on 18.07.2016.

9. Per contra, learned counsel for the
respondents would contend that the trial court
has rightly held that the plaintiff/appellant is
liable to pay court fee ad valorem since it is
admitted
on
record
that
defendants/respondents are in possession of
the suit property, and thus, plaintiff/appellant
under the garb of mandatory injunction is
essentially claiming relief of possession.
Thus, it is contended that the trial court has
not committed any illegality in deciding the
issue
of
court
fees
against
the
plaintiff/appellant.
In
support
of
his
contention,
learned
counsel
for
the
respondents has placed reliance upon the
judgements of this Court in the cases of
Sudhir Bansal and Another Vs. Girish
Bansal 2015 (5) ADJ 624(DB), Dinesh
Kumar Vs. A.D.J. Hardwar 1996 (1) AWC
433 & Azizur Rahman Vs. Salaam Khan
and Another 1995 (3) AWC.

10. I have considered the rival
submissions of the parties and perused the
record.

11. The suit has been instituted by the
plaintiff/appellant on the ground that the
848 INDIAN LAW REPORTS ALLAHABAD SERIES
suit property has been purchased in the
name of the plaintiff/appellant by registered
sale deed dated 24.08.1966. On the suit
property, a business in the name of M/s
Tayal Pottery was being run jointly by the
plaintiff/appellant
and
defendant/
respondent. A loan was taken by them in
the name of Tayal Pottery from the U.P.F.C.
which was repaid by them on 13.06.2007.
Thereafter, with the consent of the
plaintiff/appellant,
the
defendants/
respondents continued with the pottery
business over the suit property. According
to the plaint case, the possession of
defendants/respondents
over
the
suit
property was only permissive and the status
of the defendants/respondents was that of a
licencee.
The
plaintiff/appellant
by
registered
notice
dated
16.09.2008
terminated the licence of the defendants/
respondents.
As
the
defendants/
respondents
did
not
hand
over
the
possession of the suit property to the
plaintiff/appellant, a suit has been instituted
by the plaintiff/appellant for the relief
quoted above.

12. Though, relief of mandatory
injunction has been claimed by the
plaintiff/appellant, because of the admitted
facts on record that defendants/respondents
are in possession of the suit property, the
suit is essentially for possession.

13. Now the question which arises for
consideration is as to whether in the facts
of the present case, the plaintiff/appellant is
entitled to pay a fixed court fee as provided
under Section 7(iv-B) of the Court Fees Act
or ad valorem as provided under Section
7(v)(II) of the Court Fees Act.

14. To appreciate the said issue, the
first
question
which
arises
for
determination in the instant case is whether
the suit of the plaintiff/appellant for
mandatory injunction would lie or not, or
the only remedy for the plaintiff/appellant
is to seek a decree of possession. In this
regard, it would be apt to refer to the
judgement of the Apex Court in the case of
Sant Lal Jain Vs. Avtar Singh reported in
AIR 1985 SC 857.

15. In the said case, the identical
controversy came up for consideration
before the Apex Court and the Apex Court
considered the effect of Section 55 of the
old Specific Relief Act, 1877 which has
been incorporated in the new Specific
Relief Act, 1963 as Section 39 read with
Section 41.

16. The Apex Court held that where
a licence has been terminated and the
licensor wants the possession of the suit
property, a suit for mandatory injunction
would lie with the only rider that to seek
relief
of
mandatory
injunction,
the
plaintiff has to approach the court without
any delay and the reasonable time for
instituting a suit for mandatory injunction
would be three years from the date of
cause of action. However, if the plaintiff
after terminating the licence remains
dormant about his right and does not
approach the court for his right, and three
years period has elapsed from the date of
termination of the licence, then, the
plaintiff has to institute a suit for
recovery of possession and suit for
mandatory injunction would not lie.

17. This Court also in the case of Sri
Dori Lal Premi (supra) by placing reliance
upon the judgement of Apex Court in the
case of Sant Lal Jain (supra) as well as the
judgement of this Court in the case of
Islam Ahmad Vs. Maqsood and Another
2007 (8) ADJ 239 held as follows:-
1 All. Smt. Urmila Devi Vs. Rajendra Pal Tayal & Ors.
849

"In
view
of
the
aforesaid
authority it is apparent that the licensor
has both the remedies of a suit for
mandatory injunction or for recovery of
possession. If he brings the suit within three
years he can do so by a suit of mandatory
injunction and in case it is filed beyond
three years, the suit may simplicitor be for
recovery of possession. However, the
licensor, who has validly determined the
licence, cannot be denied possession over
the property no matter in what form the
prayer is made in the suit. The justice
oriented approach demands to avoid
technicalities and to advance substantive
justice. Therefore, it would not be proper to
deny the relief of possession to the plaintiff
respondent when he is entitled to it in law
merely the for reason the relief is not
properly worded and the court fee has not
been paid.

The only difference between a suit
for mandatory injunction for a direction of
possession and in a suit for recovery of
possession would be of the court fees
inasmuch as in a suit for mandatory
injunction fixed court fees is payable
whereas in a suit for recovery of possession
ad valorem court fees would be payable.

The counsel for the plaintiff
respondent agrees for payment of ad
valorem
court
fee
on
the
suit
for
possession.

A similar controversy has arisen
before me in the case of Islam Ahmad Vs.
Maqsood Ahmed and another 2007 (8) ADJ
239 and it was held that even though the
relief claimed by the party was not properly
drafted and was coughed in a language as
if it was a suit for mandatory injunction but
as in effect the relief claimed is of
possession, the party claiming possession if
legally entitled to the same cannot be
denied the benefit of it subject to payment
of court fees for the said relief. The court
fees was permitted to be made good as nonpayment of the same was held to be an
irregularity which was of a curable nature.

There are ample precedence
where proper court fees was not paid but
the court while deciding the appeal finally
and granting the relief directed payment of
the requisite court fee as a condition for
implementation of the decree."

18. In the present case, according to
the
plaint
case,
the
licence
of
defendants/respondents was terminated by
the plaintiff/appellant by registered notice
dated 16.09.2008 and the suit had been
instituted on 22.10.2008. Therefore, the
plaintiff/appellant has acted promptly in
instituting
the
suit,
and
thus,
the
controversy in hand is covered by the
judgement of Apex Court in the case of
Sant Lal Jain (supra), and the suit for
mandatory injunction would lie.

19. It is pertinent to note that in
considering the issue of court fees, only
plaint averments have to be seen. In this
regard, it would be apt to reproduce
paragraph 9 of the judgement of the Delhi
High Court in the case of Malik Mohd.
Tanveer (supra):-

"9. I may note that the settled
legal position is that for deciding the
question relating to the amount of Court
Fees payable on a plaint, the averments in
the plaint have to be looked into. This court
in
the
case
of
Oriental
Trading
Corporation vs. Punjab Skin Trading Co.,
relying upon the Full Bench of the Circuit
Bench of the Punjab High Court at Delhi in
Jai Krishna Dass vs. Babu Ram, 1967 Plrd
52 stated as follows:-

"(1)....it was settled law that for
deciding the question relating to the
amount of court fee payable on a plaint, not
850 INDIAN LAW REPORTS ALLAHABAD SERIES
only have the averments in the plaint alone
to be taken into account but the said
allegations are to be assumed to be correct
and the decision can neither depend on the
maintainability of the suit as framed nor
upon the assumption that the court must
somehow spell out of the plaint such a
claim which is ultimately capable of being
decreed and the Court has to take the plaint
as it is without omitting anything material
and without reading in it by implication
what is not stated therein."

20. Now coming to the judgement
relied upon by the learned counsel for the
respondents in the case of Sudhir Bansal
(supra).
This
Court
finds
that
the
judgement of this Court in the case of
Sudhir Bansal (supra) is not applicable in
the case in hand as the facts in these cases
are different.

21. In the said case, the suit property
was sold by the original owner to the
plaintiff, and possession of the defendant in
the suit vis-a-vis the original owner was
that of the licencee. After the purchase of
the property by the plaintiff, he instituted a
suit for mandatory injunction and paid the
court fee as provided under Section 7(iv-B)
of the Court Fees Act. The trial court found
that plaintiff was liable to pay the court fee
ad valorem. The matter came up before this
Court in appeal. This Court in appeal
considering the effect of Section 59 of the
Indian Easement Act, 1882 held that as the
plaintiff had got the property from the
original licensor by transfer, the licence
granted in favour of the defendant ceased to
exist and there was no relationship of
licensor
and
licencee
between
plaintiff/appellant
and
defendant/
respondent. In the said case, this Court
found that as there was no relationship of
licensor and licencee between subsequent
purchaser i.e. plaintiff and the defendant,
therefore, plaintiff has to claim a relief of
possession for which the court fee as
provided under Section 7(v)(II) of the
Court Fees Act is to be paid.

22. In the case of Dinesh Kumar
(supra), this Court was considering a case
where suit property was auctioned and the
bid
of
the
petitioner
was
highest,
consequently, he was given suit property
under the terms of the agreement. The
petitioner paid certain installments and
thereafter,
he
stopped
payment
of
installments, and recovery was effected
against him by the respondent/state which
was challenged by the petitioner in the suit.
The petitioner in the said case prayed for
relief of injunction and paid a fixed court
fee of Rs.500/-. The trial court held that the
petitioner was liable to pay the court fee on
the full amount which is sought to be
recovered from him. The finding of the trial
court was affirmed by the appellate court as
well as by this Court in the writ petition.
So, the facts of the said case were different
from the facts of the present case as in that
case court was considering a case where the
plaintiff has challenged the recovery of
money which according to him was being
recovered from him illegally which is not
so in the present case.

23. In the case of Azizur Rahman
(supra), this Court recorded a specific
finding in paragraph 5 that relief is for
recovery of possession of the house which
was valued at Rs.4 lac, consequently, the
Court held that court fee is payable on that
amount. Accordingly, this Court upheld the
order of the trial court.

24. Thus, for the reasons given above,
this Court is of the view that the trial court
has acted illegally in holding that the
1 All. Shri Krishna Prasad Tiwari & Ors. Vs. Pramod Kumar Yadav & Ors.
851
plaintiff/appellant is liable to pay court fees
under Section 7(v)(II) of the Court Fees
Act. Consequently, the order of the trial
court is set aside. It is further held that the
fixed
court
fee
paid
by
the
plaintiff/appellant is correct and proper in
the present case.

25. Accordingly, the appeal is allowed
with no order as to costs.

26. The trial court is further directed
to
conclude
the
suit
expeditiously,
preferably within one year from the date of
production of the certified copy of this
order.
In
case
any
adjournment
is
inevitable, the authority concerned may
grant the same by imposing a heavy cost
which may not be less than Rs.5,000/-.
----------
(2023) 1 ILRA 851
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 481 of 2020

Shri Krishna Prasad Tiwari & Ors.
 ...Appellants
Versus
Pramod Kumar Yadav & Ors.
 ...Opposite Parties

Counsel for the Appellants:
Sri Ram Singh, Sri Amit Kumar Singh

Counsel for the Opposite Parties:
Sri Arvind Kumar, Sri Arun Kumar Shukla

Civil Law - Motor Vehicles Act, 1988 -
Sections 166 & 168: - Claimant's Appeal - for
enhancement award - Accident took placed due
to rash and negligent driving of driver of
offending bus who hit the motorcycle of
deceased - Contributory negligence - Evaluation
of evidence - this court finds that finding of
Tribunal in respect of the deceased in the
accident is perverse and against the evidence on
record - thus, court held that, accident was the
result of sole negligence of driver of offending
vehicle - and - in the light of judgment of
Hon'ble Apex Court rendered in case of Magma
General Insurance Co., the court directed to
Tribunal to recomputed the compensation by
treating the income of the deceased as Rs.
6000/- in place of Rs. 3000/- per month - along
with 6 % simple interest upon enhance amount
of compensation - appeal is partly allowed,
directions for payment, accordingly. (Para -7, 8,
9, 11)

Appeal is partly allowed. (E-11)

List of Cases cited:

1. Magma General Insurance Co. Ltd. Vs Nanu
Ram Alias Chuhru Ram & ors. (2018 vol. 18 SCC
130.

2. Sudhir Kumar Rana Vs Surinder singh & ors.
(2008 Vol. 2 TAC 769 SC).

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Ram Singh, learned
counsel for the claimants/appellants and Sri
Arun Kumar Shukla, learned counsel for
the respondents.

2. The claimants/appellants being
dissatisfied
with
the
quantum
of
compensation have preferred the present
appeal with a prayer for enhancement of
compensation.

3.

Learned
counsel
for
the
claimants/appellants has contended that
finding of the Tribunal that since the
deceased was not having a valid driving
licence to drive the motorcycle, therefore,
there was some negligence of the deceased
in the accident is perverse and against the
record inasmuch as there was no evidence