Robust Tyres Pvt. Ltd. vs State Bank of India

S.P. Goyal, J.—The petitioner entered into an agreement with the respondents whereby the building belonging to the former was given on lease to the latter on a monthly rent of Rs. 28,000/ - and odd. The respondents took possession of the demised premises in pursuance of that agreement and started paying the rent regularly. As the lease was for a period of 10 years it could only be effected by a registered deed in view of the provisions of S. 107 of the Transfer of Property Act. The petitioner, therefore, called upon the respondents to execute the deed. Some dispute arose between the parties regarding the execution of the lease deed such as to who would bear the stamp duty etc. So the petitioner filed the present suit for a mandatory injunction that the respondents be directed to execute the lease deed in accordance with the agreement between the parties and paid court fee of Rs. 14/ - thereon. The defendants took a preliminary objection that the suit was not properly valued for the purpose of court fee and jurisdiction which formed the subject matter of issue No. 2. The trial court treating that issue as preliminary one upheld the plea of the defendants and directed the plaintiff to amend the plaint so as to convert it into a suit for specific performance and pay the court fee there on accordingly. Aggrieved thereby the plaintiff has come up in this revision.

It is well settled that the court can go behind the plaint to find out the real nature of the relief claimed by the plaintiff and that the liability to pay the court fee cannot be avoided by any device of disguising the real relief. The relief claimed in the plaint is that a decree for mandatory injunction be passed directing the defendants to prepare and execute a lease deed in accordance with the agreement between the parties. On a plain reading of this clause it is evident that the real relief claimed is of specific performance of the agreement between the parties and claim for mandatory injunction is only a camouflage to disguise the real nature of the relief. Moreover, the provisions of Section 41(h) of the Specific Relief Act, 1963 debars the grant of injunction if there is any efficacious remedy which can be claimed by any other mode of proceeding except in case of breach of trust. So no suit for mandatory injunction would be competent and the only relief which could possibly be granted to the plaintiff would be of performance of the contract between the parties. Thus it was not necessary for the trial court to issue the direction to the plaintiff to amend the plaint so as to convert it into a suit for specific performance. Instead it was open to the trial court to hold that the real relief claimed is for specific performance of contract between the parties and requires the plaintiff to pay court fee thereon.

The Learned Counsel for the petitioner, however, contended that a separate issue has been framed as to whether the suit is competent in the present form or not and without the decision of that issue, it would not be open to this Court to make any observation in this regard or to direct the payment of the additional court fee on the ground that the suit was, in fact, for specific performance of the contract. As both the issues were interconnected, it would have been better if the trial court had disposed them of together. But for that reason it cannot be said that no observation regarding the maintainability of the suit can be made while disposing of the issue relating to the valuation of the suit for the purposes of court fee and jurisdiction. If it becomes necessary to determine the real nature of the relief and while doing so some observation has to be made as to the form of the suit, it would certainly be open to the court to do so. The contention raised, therefore, has no merit.

For the reasons recorded above, the direction issued to the plaintiff by the trial court is set aside and the plaintiff is directed to make good the deficiency in the court fee paid taking the suit to be one for specific performance. On the request of the Learned Counsel for the petitioner he is allowed three months time to make good the deficiency in the court fee paid. No costs.