Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 42318 in Suit No.375909
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.423 OF 2018
IN
SUMMARY SUIT NO. 3759 OF 2009
HIGH COURT SUIT NO.1527 OF 2009
(CNR NO.MHCC010016752018)
Matubai Pitamber Bhugwanji Trust and Others ….Plaintiffs
versus
Mr. Raju Suryakant Kapadia and Others ... Defendants
Appearance:
Shri. Ravindra Kachare, Advocate for plaintiff.
Shri. M.N.Shah, Advocate for defendant Nos. 4 & 5.
Shri. Waghale, Advocate for defendant 3(a), (b) & (c)
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 12/02/2019
ORAL ORDER
1) Notice of Motion is filed by the defendant to hold
inquiry as to the valuation of the suit under provisions of Court
Fees Act, 1959 and to return the plaint under Order 7 Rule 10 of
C.P.C. As the valuation of the suit beyond the pecuniary
jurisdiction of the Hon'ble Court. The Notice of Motion is
supported by affidavit Mr. Manoj H. Thakar and Bharat H.
Thakkar. They on oath deposed that plaintiff has filed suit for
declaration that Deed of Appointment of Trust dated 10/06/82,
Deeds of Conveyance dated 17/06/82, 21/01/84 and 20/12/91
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are null and void and not binding upon plaintiff and for perpetual
injunction against defendant Nos.3A to 5 from collecting rent,
accepting surrender of tenancy, creating fresh tenancy etc. The
plaintiff has valued the suit for court fee and jurisdiction for
Rs.24,600/ under the provision of Section 6(iv) (j) of Bombay
Court Fees Act and has paid Rs.943/ court fee as stated in para
37 of the plaint. The witness of the plaintiff PW1 in the cross
examination on 19/08/17 admitted that the value of the suit
property in year 2009 was Rs.3 Lacs. Therefore, this court has no
jurisdiction to decide suit. Hence, prayed to allow the Notice of
Motion.
2) The plaintiff filed reply and objected on the ground
that the Notice of Motion is not tenable. The plaintiff has
specifically denied contents of Notice of Motion and contents of
affidavit in support of Notice of Motion in toto. The plaintiff has
prayed proper court fee and has valued the suit as per Section 6
(iv) (j) of Bombay Court Fees Act. Hence, prayed to dismiss the
Notice of Motion.
3) Heard advocate Shri. Ravindra Kachare, Advocate
for plaintiff, Advocate Shri. M.N.Shah for defendant Nos. 4 & 5
and advocate Waghale for defendant 3(a), (b) & (c). Perused the
Notice of Motion supported by affidavit and reply of plaintiff
supported by affidavit. I have also gone through contents of
plaint. Advocate for defendant has relied on authorities reported
in,
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(a) “1998 (2) ALL MR 313, M/s. Parekh Market
Premises Coop. Society Ltd. Vs. M/s. Padmanabh
Builders & Ors.”, that the valuation of the suit for
the purposes of court fees has to be left to the
discretion of the plaintiff. It is only in cases where the
suit has been grossly undervalued that the court can
examine the valuation and reverse the same. The
question of jurisdiction has to be decided on the basis
of averements in the plaintiff. The provision of Section
6 (iv) (j) will apply only when three conditions are
satisfied (I) the suit is for declaration, (ii) the subject
matter in dispute is not susceptible of monetary
evaluation, (iii) the suit is not otherwise provided for
by the Act. Section 6 (iv) (j) is a residuary provision to
provide a national valuation for the purpose of the Act
when the case of the plaintiff is not covered by any
other provision of the Act.
(b) “AIR 1973 Supreme Court 2384 (V60 C414),
Shamsher Singh, Appellant Vs. Rajinder Prashad
& Ors, Respondents”, that court fee payable on
plaintiff is certainly to be decided on the basis of the
allegations and the prayer in the plaint. Mere
astuteness in drafting the plaint will not be allowed to
stand in the way of the court looking at the substance
of the relief asked for.
(c) “AIR 1950 ALL 415, Arjun Singh Vs. Sahu
Maharaj Narain.” that in case the suit is decreed,
then the ultimate result will be delivery of possession.
Hence, the plaintiff should have valued the suit U/s. 6
(iv) (ha) of Bombay Court Fees Act. In the facts of the
above case was for specific performance of contract.
The suit was decreed. The Deed of Conveyance was
executed in execution. Therefore, the possession of
premises was sought. In the decree there was no order
for possession. In these facts the Hon'ble High Court
held that the nature of relief granted by the decree in a
suit for specific performance of a contract for sale is
such that everything which is necessary for the
contract to be specifically performed should be held to
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be compromised in it.
4) The plaintiff in para No.37 has specifically stated
that,
The plaintiff value this suit for the purpose of
court fees and jurisdiction U/s.6 (iv) (j) of
Bombay Court Fees Act at Rs.2,46,001/ for prayer
clause a,b,c,d and pays the court fees Rs.9,430/
accordingly and for injunction Rs.200/ each on
prayer e & f consolidated court fees paid
Rs.9630/.
5) The plaintiff in para No.25 has specifically pleaded
that,
The plaintiffs state that the title of defendants is
void ab initio as the title of the person from whom
they have purchased the suit property was not
clear. The plaintiffs therefore, state that the
present defendants have no right to collect the
rent from the tenants and/or to accept the
surrender of the tenancies and to create fresh
tenancies in the said building. It is therefore,
necessary in the interest of the justice to restrain
the defendants from creating, accepting tenancies
and from collecting rent from the tenants of the
said building.”
6) The plaintiff is seeking declaration of the documents
as null and void and not binding on plaintiffs. The defendant has
filed this Notice of Motion only on the ground that the witness of
the plaintiff in his cross examination admitted that value of the
suit property in year 2009 was more than Rs. 3 Lacs. Value of the
property in year 2009 on the basis of the market value. The
nature of relief which plaintiff is seeking is in respect of all the
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documents which is found abinitio. Therefore, the contention of
the advocate for defendant that Section 6(iv) (h) (a) is not
applicable. The suit is not for cancellation but it is for declaration
that on the date of its execution itself the documents were vital.
Therefore, Section 6(iv) (j) is applicable for declaration wherein
the plaintiff is taken the value of the consideration paid for
execution of the Deed.
7) Considering the nature of relief prayed by the
plaintiff that the documents executed are not binding on them
being found abinitio. Section 6(iv) (h) (a) of Bombay Court
Fees Act not applicable and accordingly Section 6 (iv) (j) the
plaintiff in para 37 has specifically valued the suit for the
payment of court fee and jurisdiction. The Notice of Motion is not
tenable. Hence, pass following order:
ORDER
1) Notice of Motion No.423/18 is rejected.
2) No order as to costs.
(S.S. Nagur)
Date : 12/02/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 12/02/2019
Transcribed on : 28/02/2019
Signed on : 28/02/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
01.03.2019 & 10.44 a.m. : Mrs. S.A. Shekade (LG)
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 12.02.2019
Order
Judgment/Order signed by the P.O. on : 28.02.2019
Judgment/Order uploaded on : 01.03.2019
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