Order 1

Order Details: Notice of Motion
Pdf Text: N/M 801.18 in C.C. in Su 90/18 1/10 Date : 7.12.2018
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CNR No. : MHCC01028472018
NOTICE OF MOTION NO.801/2018
IN
COUNTER CLAIM
IN
SUIT NO.90/2018
Ashok Manibhai Patel ]... Plaintiff/org. defendant
V/s.
Shardaben Purshottam Patel & Anr. ]… Defendants/org. plaintiffs
Adv. Vaid for plaintiffs in suit.
Adv. Bhadang for defendant in suit.
CORAM : HHJ Shri G. R. Agrawal
C. R. No.03
DATE : 7.12.2018
ORDER
(Dictated in open court)
By this notice of motion, the defendants in Counter claim have
prayed for direction to plaintiff to pay appropriate Court fees in
accordance with Section 6 (v) of the Maharashtra Court Fees Act.
(wrongly mentioned as C.P.C.). They have further prayed for rejection
of plaint on failure of the plaintiff to pay the Court fees. The plaintiff
has filed reply to the motion.
2. Heard Ld. Counsel for the parties. Perused the record.
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3. The Ld. Counsel for defendants has urged that the plaintiff in
Counter claim has sought possession of suit premises but he has not paid
Court fees according to the market value of the suit property. He urged
that the plaintiff in Counter claim must pay Court fees as per Section 6
(v) of the Maharashtra Court Fees Act (in short “Court Fees Act”).
4. Per contra, the Ld. Counsel for plaintiff in Counter claim has
submitted that the prayer in the Counter claim does not attract Court
Fees under section 6 (v) of the “Court Fees Act”. He submitted that
there is no prayer for declaration of ownership or for possession in the
suit. He urged that the possession of defendants over the suit premises
is not a “possession” in the eyes of law. He placed reliance on the ruling
of Ram Narain Prasad V/s. Atul Mitra (1994) 4 SCC 349 and
submitted that Court fees has to be computed on the basis of averment
made & relief sought in the plaint and not on the basis of written
statement. He further urged that since the defendants have no
“possession”, there is no question of claiming possession from them. He
submitted that Section 6 (v) of the “Court fees Act” is applicable when
'possession' is claimed and not when 'permanent or mandatory
injunction' is claimed. He also placed reliance on the Full Bench
Judgment of Hon'ble Delhi High Court in the case of i) Smt. Sheila Devi
& Ors. V/s. Shri Kishanlal Kalra 1974 SCC OnLine ii) Southern
Roadways V/s. S. M. Krishnan (1989) 4 HCC 603 and iii) Vakil Jain
V/s. Prakash Jain 2009 SCC OnLine Del 2769.
5. I have considered the submissions of both sides. In order to
appreciate the contentions of both parties, it will be useful to reproduce
the main prayers made in the Counter claim.
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(a) that the original plaintiff (defendant to the Counter claim)
be restrained by an order and perpetual injunction of this
Hon'ble Court and/or their agents and servants and persons
claiming through or under them from entering upon and/or
remaining upon the suit property and/or the building Shivsagar
standing thereon situate at CTS No.3B/294, Malabar &
Cumbala Hill Division, 67/C, Walkeshwar Road, Mumbai – 400
006.
(b) For a mandatory injunction of this Hon'ble Court against
the original plaintiffs to remove themselves together with their
articles, things and belongings from the suit rooms i.e. the
Room no.2 and Room no.5 which is described as the suit
premises in the plaint by the original plaintiffs in the sketch
annexed at Exhibit 'A' to the plaint and/or the said building
Shivsagar standing thereon situate at CTS No.3B/294, Malabar
& Cumballa Hill Division, 67/C, Walkeshwar Road, Mumbai –
400 006 and the suit property forthwith.
6. A bare reading of aforesaid prayers shows that the words used in
the prayers such as “from entering upon and or remaining upon the suit
property” and “to remove themselves together with their articles, things and
belongings from the suit rooms” are for seeking possession of the suit
premises. The prayers have been drafted in such a manner that use of
the words “possession” has been deliberately avoided. It is apparent
that the plaintiff in Counter claim is seeking possession of the suit rooms
from the defendants. There cannot be any other meaning of the words
as used by the plaintiff in the prayers of Counter claim. I have no
hesitation to hold that such prayers have been drafted only with the
intention to avoid payment of Court fees.
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7. The submission of Ld. Counsel for plaintiff in Counter claim that
the defendants are not in legal possession and therefore there is no
question of claiming possession in Counter claim, cannot be accepted
being fallacious. I do not find any substance in the said submission. It
is an admitted position that the defendants are in “physical possession”
of the suit rooms. Whether that “possession” is legal or illegal or
whether it amounts to possession in law, has no relevance for deciding
the issue of valuation of the suit and Court fees.
8. In Notice of motion no.4489/2017, the original plaintiff had
sought injunction to restrain the defendant from removing the plaintiffs
from the suit premises forcibly. Said motion was rejected by this Court
by order dated 2.5.2018 on the ground that the possession of the
plaintiffs in the suit premises cannot be protected by interim order and
that they have no primafacie material to show their legal right over suit
premises. The reliance placed by Ld. Counsel for present plaintiff on the
said order is totally misplaced. This Court has not given any finding in
the said order that the original plaintiffs are not in possession of suit
premises. For the purpose of deciding the prayer for temporary
injunction, this Court has observed that the original plaintiffs have not
made out primafacie case to show their legal right in the suit premises.
The said order has no relevance to decide the present motion.
9. It is well settled that Court has to see the substance of the plaint
and not to go by the mere form. In the instant case, the substance of the
plaint is that the plaintiff in counter claim wants removal of the
defendants which amounts to eviction and actual possession of the suit
premises. It is not the case of plaintiff that the defendants commit
sporadic acts of trespass. It is an admitted position that the defendants
are residing in the suit premises since decades.
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10. The issue involved in present motion is squarely covered by the
Judgment in the case of Lakhiram Ramdas V/s. Vidyut Cable, 1965
BOM. LR 604 : 1965 MhLJ 940. In said case, the Division Bench of
Hon'ble Bombay High Court was considering the reference made by
Hon'ble Single Bench “Whether the Ld. Judge was right in directing the
plaintiff to deposit the Court fees”. In that case, it was a suit by licensor
against licensee for declaration of termination of relationship and two
other reliefs. The prayers made in the said suit are identical to the
prayers made in the present counter claim. The Hon'ble High Court
observed thus :
“ 5. As we stated above, the plaintiff has asked for three reliefs :
The first is a declaration of the relationship and of the fact that
that relationship has come to an end and the two other reliefs are
a mandatory injunction for their removal from the premises
and a preventive injunction restraining them from reentering
or interfering with the plaintiff's possession. It is undoubtedly
true, as has been often said, that no person is bound to so adjust
his affairs as to pay the maximum taxes. Nonetheless, it is the duty
of the Court to see that by clever wording of documents, legitimate
duties are not avoided. In Burjor Pestonji v. Nariman Minoo
(1952) 55 Bom. L.R. 418, Chagla C.J. said (p. 424):
...if in substance the plaintiff was not in possession, at the date of
the institution of the suit, he cannot convert a suit for possession
into a suit for a declaration and injunction merely by giving to the
plaint the necessary form and inserting in it the necessary
averments.
In Radhabai Vasudeo v. Nandlal (1956) 59 Bom. L.R. 127,
Mr. Justice Tendolkar following this decision emphasized that
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the Court has to discover the true nature of the plaint. In
that case, the learned Judge construed the reliefs asked for,
which were practically the same as now asked for, to mean
possession. He said:
“The plaintiff cannot by merely so drafting his prayer as to exclude
or include reliefs which can or cannot be granted by a Court,
confer on the Court jurisdiction to try the suit. It is necessary to
consider what the cause of action in the plaint is and what is the
substantive relief which the plaintiff will be entitled to if he
succeeds in the suit in order to determine whether the Court has
jurisdiction, irrespective of what prayers the draftsman has
thought fit to put in the plaint. ”
In our view the principles are well settled and do not admit of
doubt. The Court has to see the substance of the plaint and not to
go by the mere form. Now, the substance of the plaint though
cleverly drafted is that the defendants should remove
themselves from the premises and should not thereafter
interfere with the plaintiff's possession either by entering or
interfering with the same. This is merely putting in a very
ingenious form the substantive prayer for possession and
cannot be regarded as merely a prayer for injunction. The
plaintiff being out of possession can only ask for possession
and his being in constructive possession as a landlord or a
mortgagor or an owner, where a trespasser is squatting on his
property cannot avail. What, in effect, he wanted was removal of
the defendants which amounts to eviction and actual possession
which the defendants were not to be allowed to disturb. Mr.
Motwani contended that a suit for injunction against a licensee,
who is in exclusive possession, can lie and he relies upon Bai
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Shirinbai Rahim v. Narayandas (1952) 55 Bom. L.R. 481
decided by S.T. Desai J. sitting singly, where the learned Judge
said (p. 484):
“In a suit against a trespasser, and a licensee in occupation of the
premises after the expiration of the period of the grant is no
different than a trespasser in unlawful occupation, the proper
relief to be asked for is by way of an injunction.”
The owner of an immovable property can, on the termination of a
licence, maintain a suit against his licensee for a mandatory
injunction directing him to vacate the property.
“...In some cases the Court may find that the prayer clause is
cleverly worded as in the present case but in effect it amounts
to a prayer for possession, in which case it is its duty to see
that the requisite courtfees are paid, and if not, to call upon
the plaintiff under the CourtFees Act to pay the courtfees.. .”
“...In our view, whether it falls a little short or not is not of much
importance. We are concerned with the substance of the plaint
and since we come to the conclusion that in substance he
asks for possession, he must pay the courtfees as on a suit
for possession...” (Emphasis added).
11. The ratio of aforesaid ruling squarely applies to the present case.
Even prayer clauses quoted herein above are identical to the prayers
made by the present plaintiff in the counter claim. Even though the
parties in the said case were licensor and licensee, the ratio laid down
above is not restricted to the cases of Licensor or licensee. The Hon'ble
Bombay High Court has considered all the aspects in respect of such
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prayers made in the plaint and the substance of such suit.
12. The aforesaid ratio is followed in the subsequent Judgment of
Hon'ble Bombay High Court in the case of Aninha D'costa V/s.
Parvatibai Thaku, 1965 MhLJ 140 and it was observed thus :
“..His first contention is that the suit for injunction as prayed for
by the plaintiff is not maintainable as inasmuch has the
defendants was in exclusive possession of the premises and the
plaintiff remedy was therefore to ask to plaints possession of the
property. In this contention he is supported by a judgment of the
Division Bench of this court (in which I was a member) I the case
of the Lakhiram v. Vidyut Cable and the Rubber Industries, 65
Bom LR 604. But in the that case we also pointed out that the
court would be entitled to contour the plaint and if on a
conclusion of the that was really intended the plaint was
claim to possession, then the suit ought not to be dismissed
only on the ground the court fee had been paid as on an
injunctions. In view of this judgment of Naik j. Constructed
the plaint was and directed the plaintiff to pay the court
fee which she would have been bound to pay as on a suit for
possession on the basis of the valve of the property affixed by
him.” (emphasis added)
13. Coming to the rulings cited by the Ld. Counsel for present
plaintiff in the case of Ramnarayan (Supra), the Hon'ble Apex Court
was dealing with the case where “relief of eviction” was sought in the
plaint. It is observed in paragraph no.9 that the suit could only be
valued as an eviction suit, regardless of the fact that the first respondent
had denied the appellant's title to the suit property. It was held that the
plaint was correctly valued as per the prayer made therein. The facts of
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said case have no parallel to the facts of present case. Therefore,
reliance placed upon said ruling is totally misplaced.
14. In the case of Sheila Devi (Supra), the Full Bench of Hon'ble
Delhi High Court has considered section 7(iv) of the Court Fees Act and
held that said provision gives right to the plaintiff to value his relief in
suit and Court has no power to interfere with the plaintiff's valuation.
Thus, what was under consideration in that case was Section 7 of the
Court Fees Act. However, it is necessary to note that at page no.501, the
Hon'ble Bombay High Court has observed that it would be for the Trial
Judge to go into the question as regards the correctness of the valuation
in the three suits in the light of the opinion on the two questions
referred to the Full Bench. I find that the questions before the Hon'ble
Full Bench were different from the question before this Court.
15. In the case of Southern Roadways (Supra), it was a contract
between Company and it's agent for carrying on it's business. It was
held that the agent acquires no interest in the principal's property and
after termination of the agency an agent cannot interfere with the
business of principal on the ground of his possessory title to the
premises. The fact situation in the said ruling is totally different from
the present case. Hence it is not applicable to the present case.
16. In the facts and circumstances and considering the prayers made
in the Counter claim, I find that the plaintiff is liable to pay court fees as
per the market value of the suit property. Hence, the notice of motion
deserves to be allowed partly. Hence, following order.
ORDER
1. Notice of motion no.801/2018 is partly allowed.
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2. The plaintiff in counter claim is directed to pay Court fees
in accordance with section 6(v) of the Maharashtra Court
Fees Act within 10 weeks.
(G. R. Agrawal)
Judge
City Civil Court,
Date : 7.12.2018 Gr. Bombay.
Dictated on : 7.12.2018
Transcribed : 11.12.2018
Signed on : 11.12.2018
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
12.12.2018 at 2.00 pm (Mrs. S. W. Tuscano)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
room no.)
HHJ Shri G. R. Agrawal, C.R.
No.3
Date of Pronouncement of
JUDGMENT/ORDER
7.12.2018
JUDGMENT/ORDER signed by
P.O. on
11.12.2018
JUDGMENT/ORDER uploaded
on
12.12.2018
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