Order 1

Order Details: Notice of Motion
Pdf Text: :1:
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1779 OF 2018
IN
S.C. SUIT NO. 2069 OF 2017
Shahnaz Ahmed Khakhu Applicant/
Defendant No.1.
Yunus Tar Mohammad Khakhu Plaintiff.
Versus.
Shahnaz Ahmed Khakhu & Anr. Defendants.
Advocate Khan Javed Akhtar for Plaintiff.
Advocate Mustafa Safiyuddin I/b ABH Law LLP for Defendant No.1.
CORAM : Dinesh P. Surana
Court Room No.1
DATED : 02.05.2018.
ORAL ORDER
The present Notice of Motion is taken out by the defendant No.1
for framing preliminary issue regarding pecuniary jurisdiction under
section 9A of Civil Procedure Code.
2. It is contended by the defendant No.1 that value of the suit
properties are more than Rs.7.50 crores. That relief which is claimed by
the plaintiff cannot be susceptible to monetary valuation. Therefore,
this court has no pecuniary jurisdiction to entertain and try the present
suit as value claim by the plaintiff over his 1/3rd share in respect of suit
property is over and above Rs.1 crore.
3. The Notice of Motion is opposed by the plaintiff on the ground
that there is no denial of ownership of rights of the plaintiff in the suit
property. The plaintiff has not sought relief of declaration therefore this
court has jurisdiction to entertain and try the present suit and therefore
-- 1 of 9 --
:2:
the plaintiff has prayed for rejection of Notice of Motion.
4. Heard both sides. Advocate for defendant No.1 contended that
the plaintiff has drafted the suit ingeniously. That, the relief which are
sought by the plaintiff does not fall under section 6(iv) (j) of the
Maharashtra Court Fees Act in short “Act” but falls under section 6(vii)
or 6(v) of the Act and therefore, the value of the suit property and relief
sought, has ousted the pecuniary jurisdiction of this court and therefore
he prayed for framing preliminary issue under section 9A of Civil
Procedure Code.
5. Advocate for defendant No.1 has placed reliance on following
citations.
1) Ramchandra Babaji Thali and Others V/s. Bhaskar Babaji Thali
and Another (2012 (5) Mh.L.J. 327)
2) Ferani Hotels Private Limited. & Anr. V/s. Nusli Neville Wadia &
Ors. (2012 SCC OnLine Bom 1994)
3) Manju Narendra Gupta V/s. Meenakshi Ashok Patil & Others
(2012(1) Mh.L.J. 706)
4) Gulam Mohamed Mohamed Yuns and Another V/s. Lalchand
Chellaram and Others. (1976 SCC OnLine Bom 64)
6. As against this advocate for the plaintiff contended that plaintiff
has sought relief of injunction and not possession or declaration
therefore, relief prayed for by the plaintiff consequently falls under
section 6(iv)(j) of the Maharashtra Court Fees Act. He submitted that
the defendant No.1 has neither filed written statement nor filed reply to
Notice of Motion taken out by the plaintiff for grant of interim relief of
injunction and therefore, there is no plea taken by the defendant No.1
regarding pecuniary jurisdiction and as such, no preliminary issue under
-- 2 of 9 --
:3:
section 9A of Civil Procedure Code can be framed.
7. After hearing rival contentions, I have carefully gone through the
pleadings of the plaintiff. In the suit the plaintiff has contended that he
is 1/3rd joint owners of the suit property i.e., Flat No.3 and Flat No.4
on first floor along with separate outhouse and closed car parking
garage on the ground floor in the building known as Green Land Co
operative Housing Society Limited, 25, Dr. A. Nair Road, Plot No. 129,
Agripada, Mumbai. The plaintiff further contended that he, his deceased
brother i.e. husband of defendant No.1 and defendant No.2 are joint
owners in suit premises. The plaintiff contended that in pursuance to
the Deed of Family Settlement dated 29th July, 2011, it was agreed that
property will remain as joint property of the plaintiff, defendant No.2
and husband of defendant No.1 and they will equally owning,
possessing and enjoying the 1/3rd share therein. It is further contended
by the plaintiff that in the Deed of Family Settlement it was agreed that
no party shall transfer, assign or mortgage or bequeath or otherwise
dispose of undivided share in the suit premises to any third party
without the express consent of the parties. It is contended by the
plaintiff that it was agreed that flat No.3 is occupied by defendant No.1,
flat no.4 is occupied by defendant No.2 and outhouse on the ground
floor is commonly used by the plaintiff and the defendants and closed
car parking garage is in the use of the plaintiff. The plaintiff further
contended that on 27.07.2017, on enquiry being made, the plaintiff
came to know that one Mr. Anwar Motorwala (not party to the present
suit) is in possession of the outhouse. It is further pleaded that on
27.7.2017 when the plaintiff went to flat No.3 he found that Mr. Anwar
Motorwala is in possession of outhouse. It is further pleaded by the
plaintiff that on confrontation it was revealed to him that for monetary
-- 3 of 9 --
:4:
consideration defendant No.1, without consent and knowledge of the
plaintiff and defendant No.2, is creating third party right in suit
outhouse in favour of Anwar Motorwala. That said Anwar Motorwala
started work of addition and alteration of permanent nature in
outhouse situated on the ground floor of suit premises contending that
defendant No.1 is making efforts to sublet and assign or part with the
possession of said outhouse to some one behind back of the plaintiff
and defendant No.2.
8. The plaintiff has prayed for following relief.
Prayer (a):
That this court may be pleased to pass a permanent order and
injunction against the defendants restraining them, their agents,
servants, representatives and family members from carrying out any
acts of additions, alterations, extensions, repairs, renovation etc. of
structural damaging and wasting nature in the suit premises viz. Flat
No.3 and Flat No.4, first floor, along with outhouse and closed car
parking garage in the building known as Green Land CHS Ltd, 25, Dr.
A. Nair Road, Plot No. 129, Agripada, Mumbai 400 011.
Prayer (c):
That this court may be pleased to pass a permanent order and
injunction against the defendants restraining them, their family
members, servants and agents from letting, under letting, subletting,
giving on leave and license or in any manner parting with the
possession or creating third party rights in the suit premises viz. Flat
No.3 and Flat No.4, first floor, along with outhouse and closed car
parking garage in the building known as Green Land CHS Ltd, 25, Dr.
A. Nair Road, Plot No. 129, Agripada, Mumbai 400 011.
Prayer(e):
That this court may be pleased to pass permanent order and injunction
against the defendant No.1 restraining her agents, servants,
-- 4 of 9 --
:5:
representatives and family members from parking the car in front of the
garage on the ground floor in the building known Green Land Co
operative Housing Society Limited, 25, Dr. A. Nair Road, Plot No. 129,
Agripada, Mumbai 400 011 or in any manner obstructing or causing
impediments in removing or parking his vehicle.
9. The other reliefs which are prayed by the plaintiff are of
temporary nature. In paragraph 19 the plaintiff has valued the relief in
terms of prayer at Rs.1000/ each for prayer clause (a), (c) and (e) u/s.
6(iv) (j) of the Act contending that same are not susceptible to
monetary valuation.
10. For the purpose of deciding the present Notice of Motion, it is
not necessary to go into entire merits and demerits of the matter. What
is required to be seen is whether there is substance in the contention of
defendant No.1 so that preliminary issue under section 9A of CPC can
be framed for adjudication on merits. Therefore, on the basis of said
proposition the pleadings of the plaintiff is required to be taken into
consideration.
11. Section 6 of the Maharashtra Court Fees Act is reproduced
hereinbelow will be relevant for the purpose of deciding the present
Notice of Motion.
Section 6(iv) of the Act is reproduced herein below.
6. The amount of fee payable under this Act in the suits next hereinafter mentioned shall
be computed as follows :
(i) for money ;
(ii) for maintenance ;
(iii) for other movable property having market value ;
(iv) (a) against recovery of any money due as a tax etc. ;
-- 5 of 9 --
:6:
(b) similar claim in respect of movable property ;
(c) for status with monetary attribute ;
(d) for ownership etc. In suits for declaration in respect of ownership, or
nature of tenancy, title, tenure, right, lease, freedom or exemption from, or nonliability
to, attachment with or without sale or other attributes, of immovable property, such as
a declaration that certain land is personal property of the Ruler of any former Indian
State or public trust property or property of any class or community—onefourth of ad
valorem fee leviable for a suit for possession on the basis of title of the subjectmater,
subject to a minimum fee of one hundred rupees :
Provided that if the question is of attachment with or without sale the amount of fee
shall be the ad valorem fee according to the value of the property sought to be protected
from attachment with or without sale or the fee of sixty rupees, whichever is less :
Provided further that, where the defendant is or claims under or through a limited
owner, the amount of fee shall be onethird of such advalorem fee, subject to the
minimum fee specified above :
Provided also that, in any of the cases falling under this clause except its first proviso,
when in addition any consequential relief other than possession is sought the amount of
fee shall be onehalf of ad valorem fee and when the consequential reliefs also sought
include a relief for possession the amount of fee shall be the full ad valorem fee ;
(e) for declaration of easement etc. – ;
(f) for other status without monetary attribute ;
(g) for charge on property ;
(h) for periodical money returns ;
(i) for accounts ;
(j) for other declarations In suits where declaration is sought, with or without
injunction or other consequential relief and the subjectmater in dispute is not
susceptible of monetary evaluation and which are not otherwise provided for by this Act
ad valorem fee payable, as if the amount or value of the subject mater was one thousand
rupees ;
In all suits under clauses (a) to (i), the plaintiff shall state the amount at which he
values the relief sought, with the reasons for the valuation;
12. At the outset, I would like to mention here that the defendant
No.1 has filed reply to Notice of Motion No.3468 of 2017 taken out by
the plaintiff for interim relief. As the Hon'ble High Court has made the
Notice of Motion time bound, reply was filed by the defendant No.1
beyond the period contemplated by the Hon'ble High Court. However,
-- 6 of 9 --
:7:
advocate for defendant No.1, as an officer of the court and with full
responsibility, made a statement that the Hon'ble High Court today
itself has ordered to take into consideration reply filed by defendant
No.1 to Notice of Motion No. 3468 of 2017. In the said reply filed by
defendant No.1 to Notice of Motion No 3468 of 2017, in paragraph 3
the defendant no.1 has specifically taken the plea that this court has no
jurisdiction to try, entertain and dispose of the present suit. Though the
statement is bald defendant No.1 has further contended in para 3 that
she is in the process of filing application u/sec. 9A of Civil Procedure
Code. Therefore, irrespective of the fact that written statement is not
filed by the defendant No.1, there is plea raised by defendant No.1 by
way of reply to Notice of Motion and present application for framing
preliminary issue for want of pecuniary jurisdiction of this court to try
and entertain the present suit. As per Section 9A of CPC (Maharashtra
Amendment) on objection to jurisdiction being raised during the
hearing of the application relating to interim relief in the suit, the court
shall proceed to determine at the hearing of such application as to the
jurisdiction as a preliminary issue before granting or setting aside the
order granting the interim relief.
Section 9A is reproduced hereinbelow.
“9A. Where at the hearing of application relating to interim relief in a
suit, objection to jurisdiction is taken, such issue to be decided by the
Court as a preliminary issue – (1) Notwithstanding anything contained in
this Code or any other law for the time being in force, if at the hearing of
any application for granting or setting aside an order granting any
interim relief, whether by way of stay, injunction, appointment of receiver
or otherwise, made in any suit, an objection to the jurisdiction of the
Court to entertain such a suit is taken by any of the parties to the suit,
the Court shall proceed to determine at the hearing of such application
the issue as to the jurisdiction as a preliminary issue before granting or
-- 7 of 9 --
:8:
setting aside the order granting the interim relief. Any such application
shall be heard and disposed of by the Court as expeditiously as possible
and shall not in any case be adjourned to the hearing of the suit.
Therefore, the application filed by defendant No.1 for framing
preliminary issue as to as pecuniary jurisdiction is required to be
decided first.
13. Advocate for defendant No.1 contended that the plaintiff's reliefs
are covered u/sec. 6(vii) and 6(v) of the Act. As against this the
plaintiff in paragraph 19 of the Plaint has valued the suit under section
6(iv) (j) of the Act. As per section 6 (iv) (j) of the Act in a suit for
declaration wherein, irrespective of the fact that injunction or other
consequential relief is sought or not, for the purpose of payment of ad
valorem court fee and thereby for declaration too such suit is required
to be valued for the purpose of payment court fee and valuation for
Rs.1000/. On perusal of the prayers (a), (c) and (e) in the suit it is
apparent that no relief of declaration is sought by the plaintiff. In the
case of Smt. Archarana Daughter of Bhimrao Randaye, V/s. Dr.
Sau. Kavita Wife of Dlip Changole (LEX (BOM) 2017 2 147)
decided on February 28, 2017), cited by the plaintiff, the suit was for
declaration about the plaintiff had legal right to reside in the suit
property and that alleged Will dated 30th December 2004 said to have
been executed by father was in valid. Therefore, the facts of the case
cited supra by the plaintiff will not be applicable to the present set of
facts. Moreover, in the case cited supra, issue under section 9A of CPC
was framed and decided.
14. Having regard to the prayers and reliefs sought by the plaintiff, it
cannot be said that there is no substance in the contention of
-- 8 of 9 --
:9:
defendant No.1 that suit may, for the purpose of valuation and
payment of court fee, falls either in section 6(vii) or (v) of the Act.
Therefore, I am of the view that prima facie it seems that this is a case
where issue u/sec. 9A of CPC is required to be framed. Therefore,
following issue is framed.
“Whether this court has pecuniary jurisdiction to try and
decide the present suit?
If yes? What order?
As such, the Notice of Motion stands disposed off with no orders as to
costs.
(Dinesh. P. Surana)
Judge
City Civil Court,
Gr. Bombay
Dictated on : 02.05.2018.
Transcribed on : 04.05.2018
HHJ signed on : 05.05.2018
CERTIFIED TO BE TRUE & CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER
09.05.2018, 2.50 p.m. Mr.Vishnu S. Shinde
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room No.1) HHJ Shri D.P. Surana (C.R.No.01)
Date of pronouncement of Judgment/ order 02.05.2018.
Judgment/Order signed by the P.O. on 05.05.2018.
Judgment/Order uploaded on 09.05.2018.
-- 9 of 9 --