Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1559/2020 in Suit 1353/2020
NOTICE OF MOTION NO. 1559 OF 2020
IN
S.C. SUIT NO. 1353 OF 2020
CNR NO. : MHCC010046802020
Devdutta Kantaprashad Gupta … Plaintiff
Versus
Dilip Kantaprashad Gupta & Ors. ...Defendants
Appearance:
Adv. Shri. Jugal Haria for Defendant No. 1 to 4 & 6.
Adv. Shri. A.M. Sarogi for Plaintiff.
CORAM : SMT. S.S. NAGUR
JUDGE, (C.R.NO.4)
DATE : 21/10/2021
ORDER
The Notice of Motion is filed by the defendant no. 1 under
Order VII Rule 10 of the Code of Civil Procedure to return the plaint to
file it before proper Court. The valuation of the suit is undervalued.
The suit claim is beyond pecuniary jurisdiction of the Court. The Notice
of Motion is supported by Affidavit of Dileep Gupta. The plaintiff is
seeking declaration of title of a property comprising of a plot of land
bearing CTS No.928 situated at JSS Road, Chira Bazar, Opp.
Kantaprashad Chowk, Mumbai – 400 002 and a building of ground
plus two storey built along with a terrace located at plot of land
bearing no. 573A, 573B, 575A and 575B. This Court has jurisdiction
to dispose of all the suits and other proceedings of a civil nature, not
exceeding Rs.One Crore. The valuation of the suit exceeds beyond
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Rs.One Crore. Therefore, this Court has no pecuniary jurisdiction to
decide the suit. Hence, prayed to allow the Notice of Motion.
2. The defendant filed reply through Affidavit of plaintiff
Devdutta Gupta and denied the contents of the Notice of Motion. The
plaintiff stated that the Notice of Motion is not filed as per the format.
The decision of jurisdiction of the Court will require necessary issue to
be framed and parties to be allowed to adduce evidence. Hence,
prayed to dismiss the Notice of Motion with costs.
3. Heard advocate Shri.Jugal Haria for defendants and
Advocate Shri.A.M. Sarogi for plaintiff. Perused the contents of the
Notice of Motion and the reply supported by Affidavit. I have also gone
through the contents of the plaint.
4. On perusal of order passed by my Predecessor in Exhibit 1
dated 02.11.2020, there was office objection in respect of proper court
fees not affixed and the office was directed to take appropriate steps.
Thereafter, by order dated 02.12.2020 at Exhibit 1, my Predecessor
directed the plaintiff to explain that the market value of the subject
matter does not exceed the pecuniary jurisdiction of the Court and the
Notice of Motion is kept pending. It is also noted in the order that the
suit claim for the relief of declaration is valued for Rs.24,00,000/ and
the document tendered by the plaintiff shows the capital value of the
suit property as Rs. 13,23,28,760/.
5. On perusal of the plaint, the column of Court Fee para no.
32 is corrected as value of Rs.24,00,000/ as per Section 6 (iv)(d) of
the Bombay Court Fees Act. However, the total Court fee affixed by the
plaintiff is Rs. 22,830/ and the suit valued at Rs. 9,00,000/ is shown.
The plaintiff has not affixed court fee on Rs. 24,00,000/ which comes
to Rs. 42,030/.
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6. The plaintiff is seeking declaration of ownership of the suit
property along with building standing thereon. The plaintiff stated that
he and his deceased father are conducting the total business from the
suit property. The plaintiff and his deceased father are joint owners in
respect of entire suit property. In para 10 of the plaint, the plaintiff
stated that after his father expired, none of the defendants have
claimed any rights in respect of the said property as legal heirs.
Therefore, in view of passing of more than 12 years, the plaintiff being
in exclusive use, occupation and possession of the suit property is
owner by way of adverse possession. The relation of defendants with
the plaintiff is of brother and sisters.
7. The plaintiff has filed the description of details of capital
value calculation (Exh.3 annexed to the plaint) of the suit property,
which comes to Rs. 13,23,28,760/. Advocate Shri. Sarogi for plaintiff
argued that it is the assessment which is to be taken into account for
calculation of court fee. Therefore, on the basis of assessment, the
plaintiff has valued the suit property.
8. Advocate for defendant has relied on authorities reported in :
i. Lokesh s/o Ramraoji Navghare & Anr. Vs. Janardhan s/o.
Haribhau Bhisikar & Anr. : 2014 (5) Mh.L.J. 789
That in the plaint valuation clause cannot be vague. It must reflect as
to how the suit is valued under the Suits Valuation Act and Rules
framed thereunder for the purpose of jurisdiction of the Court.
ii. Jagdish Rai & Ors. Vs. Smt. Sant Kaur : 1975 SCC OnLine Del 130
That under Order 7 Rule 11(b), the Court is empowered to reject the
plaint if it is undervalued and the plaintiff on being required to
correct the valuation within a given time fails to do so.
iii. Devendra Singh Vs. Bhole Ram : 1990 SCC OnLine All 571
Where the valuation of the suit for purposes of jurisdiction is
contested, the value must be determined by the Court and where the
valuation can be ascertained correctly, the plaintiff cannot be
allowed to put an arbitrary value upon his claim nor can he be
allowed to overvalue or undervalue his claim with a view to choose
his forum.
iv. Meenakshisundaram Chettiar Vs. Venkatachalam Chettiar :
(1980) 1 SCC 616
The facts of the case is in respect of accounts of transaction with the
respondent. The plaintiff is required to state the amount at which he
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value the relief sought.
9. On the other hand, Advocate Shri. Sarogi for plaintiff has
relied on authority reported in :
Anandrao Vithoba Pawar Vs. Mumbai Building Repair &
Reconstruction Board & Ors. in Writ Petition No. 9357 of 2013
(BHC) vide order dated 19.10.2013.
That application to seek relief cannot be entertained. The different
types of applications prescribed under Bombay City Civil Court Act
in the form of Notice of Motion, Chamber Summons etc. are to be
filed supported by affidavit of the party making the application.
10. The plaintiff in the plaint has not shown the area of the
suit property. The plaintiff in para 32 of the plaint not described how
he arrived at amount of Rs.24,00,000/. The plaintiff is seeking
declaration that he is the owner of the suit property, therefore Section
6(iv)(d) will be applicable. The plaintiff has to pay the court fee as per
Section 6(iv)(d) of the Bombay Court Fees Act. The plaintiff has to
value the suit property, so as to pay the proper court fee and will also
decide the pecuniary jurisdiction of the Court to try the suit. My
Predecessor had already held that the valuation of the suit as disclosed
by the plaintiff in documents produced by him shows as
Rs.13,23,28,760/.
11. The plaintiff was called upon to explain that the market
value of the subject matter does not exceed pecuniary jurisdiction of
the Court. Advocate Shri. Sarogi for plaintiff stated that it is the
assessment of the land which has to be considered. However, plaintiff
is seeking declaration of the suit property which is land along with the
building structure in the city. Therefore, it will be the market value of
the suit property which is to be considered for calculation of court fee.
The plaintiff conveniently has failed to disclose the area of the suit
property, so as to avoid to pay the court fee. The plaintiff has not
affixed the court fee, after he has shown the valuation of the suit
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property as Rs.24,00,000/ without giving details.
12. I have gone through the above authorities. In the present
facts, the plaintiff is seeking declaration of ownership hence has to
value the suit property to decide the jurisdiction and pay proper court
fee.
13. The plaintiff is not disclosing the market value of the suit
property nor he has stated the area of the suit property. Therefore, the
plaintiff is to be called upon to disclose the area of the suit property
and an inquiry under Section 8 of the Bombay Court Fee Act is
required to come to the conclusion about the value of the suit and the
court fee to be paid by the plaintiff. In case plaintiff fails to disclose the
area of the suit property, the plaintiff will have to face the
consequences of dismissal of the suit. Hence, pass following order:
ORDER
1. The plaintiff is directed to disclose the area of the
suit property along with building structure thereon
within one month failing which, the suit will have to
be dismissed.
2. The Notice of Motion is kept pending for above
compliance.
(SMT. S.S.NAGUR)
Judge
Dt.: 21/10/2021 City Civil Court,
Gr. Mumbai
Declared on : 21/10/2021
Dictated on : 20/10/2021
Typed on : 20/10/2021
Checked & Signed on : 21/10/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
22/10/2021 3.45 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
21/10/2021
Judgment/order signed by P.O on 21/10/2021
Judgment/order uploaded on 22/10/2021
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