ORDER
Shantanu Kemkar, J.
1. By this petition filed under Article 227 of the Constitution of India the petitioner/defendant has challenged the order dated 3-8-2006 passed by the Second Civil Judge Class-II, Katni in Civil Suit No. 143-A/2004.
2. Briefly stated, the respondent/plaintiff filed a suit for mandatory injunction on 7-7-2004 on the basis of a registered release deed dated 12-9-2003 executed by the petitioner/defendant in favour of the plaintiff seeking eviction of defendant from the suit premises and directing her to give vacant possession of it to the plaintiff. As per the plaint averments since the defendant was residing in the suit premises and to arrange for another place for her resident on her request the plaintiff allowed her to stay in the suit premises for short time enabling her time to shift to another accommodation. However, when the defendant even after the demand of the plaintiff declined to vacate the suit premises on unreasonable and false pretext the plaintiff had to file the suit in question.
3. The defendant filed her written statement and also filed an application under Order 7 Rule 11 of the Code of Civil Procedure (for short ‘CPC’) raising a dispute regarding the payment of Court tees. The defendant stated that the plaintiff’s suit is based upon the release deed dated 12-9-2003 (Annexure P-4), in which the value of the suit property is shown to be Rs. 7,85,000/- in the circumstances the plaintiff was required to value her suit at Rs. 7,85,000/- and was required to pay Court fees accordingly. The defendant stated that the plaintiff having not paid the requisite Court fees, the suit filed by her deserves to be dismissed.
4. The aforesaid application filed by the defendant was replied by the plaintiff stating therein that her suit is for mandatory injunction directing the defendant who is in possession of the suit house as a licensee to surrender the possession and as such the suit is properly valued in view of Section 7(iv)(d) of the Court Fees Act, 1870 (for short ‘Act’). The plaintiff further stated that the suit for mandatory injunction directing the defendant licensee to surrender possession is maintainable and falls within the purview of Section 7(iv)(d) of the Act under which the plaintiff is entitled to put her own valuation, in the circumstances it was not necessary for her to pay Court fees on the market value of the property.
5. Having heard the learned Counsel for the parties, I find no merit in this writ petition.
6. As per the plaint averment the plaintiff became owner of the suit property on the basis of release deed dated 12-9-2003 executed in her favour by the petitioner/defendant. The case of the plaintiff is that the defendant was allowed by her to stay in the suit premises for a short duration enabling the defendant to search and shift in another accommodation. Thus, the possession of the defendant was in the capacity of licensee. Since the licensee is neither a trespasser nor a tenant, the present suit would be clearly governed by Section 7(iv)(d) of the Act leaving the plaintiff free to put her own valuation. In this view of the matter the present suit for mandatory injunction which is filed promptly on 7-7-2004 by the plaintiff directing the defendant licensee to surrender and give vacant possession of the suit premises to the plaintiff clearly falls within the purview of Section 7(iv)(d) of the Act enabling the plaintiff to put her own valuation and it is not necessary for her to pay Court fees on the market value of the suit property. [See Milkha Singh and Ors. v. Diana and Ors. AIR 1964 Jammu & Kashmir 99] in which after dealing exhaustively in similar situation the Division Bench has held (1) That a suit for an injunction simpliciter against a licensee whose licence has been terminated is maintainable. (2) That Section 7(iv)(d) of the Court Fees Act clearly applies to such a suit and the plaintiff is given an option of putting any valuation that he likes and the Court fee has to be paid on such valuation. (3) That where a licenser approaches the Court for an injunction within a reasonable time after the licence is terminated, he is entitled to an injunction. On the other hand, if the licenser causes huge delay, the Court may refuse the discretion to grant an injunction on the ground that the licenser had not been diligent and in that case, the licenser will have to bring a suit for possession which will be governed by Section 7(v) of the Court Fees Act.
7. The petitioner/defendant has also raised a ground that even if the Court fees is not required to be paid on the basis of valuation shown in the release deed, the suit is required to be valued reasonably and since that being not done, the plaintiff be directed to value the suit for the purposes of jurisdiction reasonably. I am not inclined to accept this contention firstly on the ground that the petitioner/defendant has not raised this ground in her application filed under Order 7 Rule 11 of the CPC, secondly there is no pleading to show as to how the valuation done by the petitioner is unreasonable. The point having not raised before the Trial Court and there being no opportunity to the plaintiff to deny the same it cannot be allowed to raise for the first time in this writ petition filed under Article 227 of the Constitution of India.
8. In the circumstances, the petition deserves to be and is hereby dismissed. No orders as to the costs.