Final Order 2

Order Details: Notice of Motion
Pdf Text: N/m No. 2982/22 in Suit No. 1353/2020. 1 Order.
MHCC010097952022
Presented on : 18-08-2022
Registered on : 18-08-2022
Decided on : 20-02-2023
Duration : 0 years, 6 months, 2 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2982 OF 2022
IN
SUIT NO. 1353 OF 2020
Devdutt Kantaprasad Gupta )...Plaintiff
Versus
Dileep Kantaprasad Gupta and others )...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 20th FEBRUARY, 2023.
Shri Jugal Haria, Advocate for defendant no.1.
Shri Ashok M. Saraogi, Advocate for the plaintiff.
Shri Rajiv Hingu, Advocate for defendants no.2 to 6.
None for defendants no.7 to 9.
ORDER
1. Defendant no.1 has taken out the notice of motion for
rejection of the plaint under Order VII Rule 11(b) of the CPC r/w Order
XIV Rule 2 of the CPC. Perused notice of motion, affidavit in reply and
the suit proceeding. Heard learned counsel Shri Jugal Haria for
defendant no.1 and learned counsel Shri Ashok M. Saraogi for the
plaintiff.
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N/m No. 2982/22 in Suit No. 1353/2020. 2 Order.
2. Defendant no.1 has come up with the following case in
affidavit in support :
Defendant No.3 had filed a notice of Motion No.1559/2020
for returning the plaint on account of valuation of the suit property
manifestly being undervalued as well as unreasonable under Order VII
Rule 10 of the CPC and it is pending vide order dated 21/10/2021. The
plaintiff has valued the plaint at Rs.24,00,000/. The Court has also
issued direction from time to time to value the suit properly as per
roznama dated 02/11/2020, 02/12/2020, 24/08/2021 and
01/09/2021. Specific reference is made in the order dated 02/12/2020
directing the plaintiff to explain the market value of the property
especially in reference to the capital value disclosed by the plaintiff of
Rs.13,23,38,760/–. The plaintiff was also directed to file market value
of the suit property as per roznama dated 24/08/2021. On 01/09/2021,
the time was sought by the plaintiff to get valuation of the suit property,
but the correct valuation has not been placed on the record. The
plaintiff has failed to address or comply with the directions issued by
the court. As per order dated the 21/10/2021, the court observed that
the plaintiff is not disclosing the market value of the suit property.
3. The plaintiff filed Chamber Summons No.1792/2021 for an
amendment of the plaint whereby disclosing the area of the suit
property. On bare perusal of alleged area of the suit property set out in
the Schedule of amendment in the said chamber summons, the suit is
manifestly undervalued. Ready Reckoner value of the suit property as
per area described by the plaintiff in the said chamber summons is
computed in excess of Rs.34,00,00,000/. The plaintiff has annexed
computation of ready reckoner value Exh.D with affidavit in support.
Countless chances are given to the plaintiff to correct valuation of the
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N/m No. 2982/22 in Suit No. 1353/2020. 3 Order.
plaint. Plaintiff does not want to correct value of the suit. Therefore, the
plaint may be rejected under Order VII Rule 11(b) of the CPC.
4. The plaintiff filed affidavit in reply in which he has
raised following contentions :
The plaintiff had presented Notice of Motion
No.1797/2020 and thereafter, Chamber Summons No.1792/2021. The
entire proceedings are presently due for hearing. The defendants intent
to delay the hearing of the matter on the merits. Therefore, present
Notice of Motion is filed. By virtue of the present Notice of Motion, an
attempt is being made to direct the Department to value the suit in
accordance with the orders passed by this court depending upon the
area. Accordingly, the said orders have duly been complied with.
Thereafter, the details thereof have been brought before this court.
Present Notice of Motion is devoid of merits and deserves to be
dismissed. The exercise of the valuation of the suit property has already
been done by the court. In view of the said facts, the question of asking
the court to go back the same process does not arise. Contentions
regarding valuation are without any substance. No case is made out by
defendant No.1 to grant any such relief.
5. The defendants have ignored provisions of Order 41 Rule 1
of the CPC read with Order 12 Rule 14 of the CPC. The CPC by itself in
clear terms shows that it is only after complying with the entire
procedure, all the issues are to be determined and the same are
required to be decided by the court. The defendants have failed and
neglected to file their written statement. The plaintiff made reference of
reported judgment delivered by Honourable Justice Shri Anoop Mohata
and stated that time for filing a written statement is discussed in the
said citation. In the absence of any written statement and the time of
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N/m No. 2982/22 in Suit No. 1353/2020. 4 Order.
which has already expired, it could be said that there are no pleadings
before the court as contemplated under the provisions of law. In the
absence of pleadings, the present suit deserves to be decreed. The
plaintiff prayed for dismissal of the notice of motion.
6. Learned counsel Shri Jugal Haria for defendant no.1 and
learned counsel Shri Ashok Saraogi for the plaintiff advanced
arguments in consonance with their rival contentions in affidavit in
support and affidavit in reply respectively.
REASONS
7. This Court had allowed Chamber Summons No. 1792/2021
on 01/12/2022 and the plaintiff was allowed to carry out amendment
in the plaint by mentioning specific area of the suit premises.
Accordingly, description of the suit premises is given by adding para 32
in the plaint. Valuation of the suit property was shown as
Rs.24,00,000/ on the basis of rent of the suit premises. Rent of the suit
premises was shown as Rs.6,000/ and valuation was calculated by
multiplying the rent amount 150 times. Thereafter, this Court had
directed the plaintiff to place on record details of market value of the
suit premises as per order in roznama dated 02/01/2023. Accordingly,
the plaintiff placed on record Valuation Report (Exh.8) prepared by
Chartered Valuer. In this report, market value of the suit premises is
shown as Rs.14,26,51,740.00. Then, the suit was valued for the purpose
of jurisdiction of this Court on the basis of Gross Rent Multiplier and it
was shown as Rs.96,28,992.45.
8. In the light of above developments in the matter, it is
pertinent to note that the plaintiff has sought relief of declaration of
ownership regarding the suit property. It attracts Section 6(4)(b) of the
Maharashtra Court Fees Act. It prescribes onefourth of advalorem fee
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N/m No. 2982/22 in Suit No. 1353/2020. 5 Order.
leviable for a suit for possession on the basis of title of the subject
matter. It means that value of the subject matter is required to be
considered. As value of the suit property is more than Rs.14,00,00,000/
as per Exh.8, this Court does not have pecuniary jurisdiction to try the
present suit. The plaintiff has undervalued the subject matter of the
suit. As valuation of the subject matter is ousting pecuniary jurisdiction
of this Court, it would be more appropriate to return the plaint to the
plaintiff for presentation to the Court having pecuniary jurisdiction as
per Order VII Rule 10 of the CPC. Therefore, notice of motion can be
allowed with modification in further directions. Hence, I pass the
following order :
ORDER
1. Notice of Motion No. 2982/2022 is made absolute in terms
of prayer clause (a) with modification in further directions.
2. The plaint shall be returned to the plaintiff for
presentation to the competent court having jurisdiction by
paying the court fees as per Section 6(iv)(d) of the
Maharashtra Court Fees Act, 1959 in view of Order VII Rule
10 of the Code of Civil Procedure.
3. Notice of Motion No. 1559/2020 and Notice of Motion No.
1797/2020 are disposed off having become infructuous due
to above directions.
4. Proceedings of Suit No. 1353/2020, N/m No. 1559/2020,
N/m No. 1797/2020 and N/m No. 2982/2022 are closed.
(R.R.BHAGWAT)
Judge, City Civil Court,
(Court Room No.66)
Date : 20/02/2023. Mumbai.
1. Dictated on : 20/02/2023.
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N/m No. 2982/22 in Suit No. 1353/2020. 6 Order.
2. Transcribed on : 21/02/2023.
3. Signed on : 22/02/2023.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22/02/2023. 4.50 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 20/02/2023.
Judgment/Order signed by P.O. on 22/02/2023.
Judgment/Order uploaded on 22/02/2023.
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