Final Order 1

Order Details: Chamber summons
Pdf Text: ..1.. C.S.1330-2019 in Suit 677-2016
IN THE BOMBAY CITY CIVIL COURT FOR GREATER
MUMBAI
CHAMBER SUMMONS NO. 1330 OF 2019
(CNR NO.MHCC01-007419-2019 )
IN
S. C. SUIT NO.677 OF 2016
Mr. Gilder Anthony D’silva ] .. Plaintiff
Versus
1. Mrs. Monica Julies Kinny ]
2. Mrs. Stella Joseph Falcon, ]
3. Mrs. Ursula Felix Rodrigues, ]
4. Mr. John David Gonsalves (Banzo) ]
5. Mrs. Teresa Molbina Gonsalves, ]
6. Mrs. Sandra Eskina D’Penha ] .. Defendants.
Appearances :-
Ld. Adv. Ganesh Mirashigaonkar for Plaintiff.
Ld. Adv. Vaishali Ugade for defendant Nos. 1,3,5 and 6.
Ld. Adv. Pareira for defendant No.4.
CORAM : H. H. J. Nazera Sadique Shaikh
COURT ROOM NO.03
DATE : 29/11/2023.
ORDER
The present chamber summons is taken out by the plaintiff
seeking permission to deposit court fees for the amended prayer in the
suit.
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2. As per the plaintiff, plaintiff has carried out amendment in
the suit vide Chamber Summons No.1083 of 2018 and plot of land
having CTS No.211, 211/1, 211/2, 211/3 incorporated in the plaint. In
view of the amendment, the plaintiff has also amended the prayer
clause ‘Ia’ for the purpose of court fees. The plaintiff valued the suit at
Rs.2,50,000/- and undertakes to pay court fees for his half share as per
the provisions of section 6(iv)(d) of the Bombay Court Fees Act.
3. As per the plaintiff, defendant No.4 has valued the said
land CTS No. 211, 211/1, 211/2, 211/3 at Rs.5,00,000/- in the
Probate Petition before the Hon’ble High Court. Hence, the plaintiff is
seeking permission to deposit court fees accordingly.
4. The defendant No.4, defendant Nos. 1 to 3, 5 and 6 have
resisted the chamber summons by filing reply.
5. As per the defendant No.4 the chamber summons is not
tenable and barred by limitation. As per the defendant No.4, he has
taken objection in the written statement and to fill the lacunae, this
chamber summons is taken out which deserves to be dismissed with
compensatory costs.
6. The defendant No.4 admits that at the time of filing
Probate Petition he has valued the suit property at Rs.5,00,000/- for
payment of court fees, however since then the value of the property is
increased and is more than rupees one crore. The plaintiff is being
aware of the property being developed and therefore the present market
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value is more than rupees one crore. Hence the chamber summons
sought to be dismissed.
7. The defendant Nos. 1to 3, 5 and 6 submitted that on the
proper valuation of the suit it will go beyond pecuniary jurisdiction of
this court. The plaintiff has deposited the court fees when the Chamber
Summons No.1083 of 2018 was valued. As per these defendants, the
suit is under valued and the market value of the suit property is more
that rupees one crore.
8. Heard learned Advocate for the plaintiffs and learned
Advocates for respective defendants. Perused the record.
9. Suit is for declaration, injunction and partition. The
plaintiff moved this chamber summons after finding out one more
property in the said CTS No. 211, 211/1, 211/2, 211/3. The chamber
summons of plaintiff was allowed and accordingly plaint is amended.
As per the plaintiff, from the written statement it is learnt that the
building is now constructed and therefore chamber summons were
taken out to add the society as party and the society is made party as
defendant No.7 in the said suit.
10. Plaintiff took me to the prayer which is at amended in the
plaint about adding the suit properties. In view of the said amendment
in the prayer clause court fee is required to be paid. The plaintiff has
valued the said property at Rs.5,00,000/- and he is seeking half share
therefore he has valued the suit at Rs.2,50,000/-.
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11. As per the learned Counsel for the defendant No.4 plaintiff
has produced the Municipal Assessment Tax record but the property is
valued for more than rupees one crore fifty lakhs. The learned Counsel
for defendant No.1 to 3, 5 and 6 relied upon the case of
Sadhu Mahadu
Jagdale V/s Tatya Sadhu Jagdale and others [AIR 1973 BOMBAY 91], in
which it is held that in a suit for partition and separate possession of a
share in joint family property which includes agricultural land also does
not become a suit for possession to be governed by paragraph (V) even
though explanation to paragraph (VII) of section-6 of Bombay Court
Fees Act, provides that for purpose of court-fees the land is to be valued
as if the suit is for possession.
12. I have carefully perused the cited case and the plaint with
the amended relief. The contention of the defendants about the
objection taken in written statement etc. does not survive as already the
chamber summons of plaintiff is allowed and subsequent amendment is
carried out by the plaintiff. In view of the amended relief which sought
by the plaintiff, he is required to deposit court-fees. As per the plaintiff,
he is ready to deposit the court-fees in view of the valuation done by the
defendant No.4 in the Probate Petition. The plaintiff is relying on the
Probate Petition, however the same is of the year 2012, whereas the
value of the additional properties would have increased. Therefore, the
plaintiff is required to deposit the court-fees as per the market value of
the ready recknor. With this, I proceed to pass the following order;
ORDER
1. Chamber Summons No. 1330 of 2019 is allowed.
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2. Plaintiff is permitted to deposit Court fees relating to prayer clause
“Ia” of the plaint in respect of the suit land having CTS No.211, 211/1,
211/2, 211/3, as per the market value of the property.
3. The plaintiff shall file the valuation of the additional suit property
within six weeks and deposit the Court fees accordingly.
4. No order as to costs.
5. Chamber Summons No. 1330 of 2019 is disposed of accordingly.
(Order dictated & pronounced in open Court)
( Nazera S. Shaikh )
Judge, City Civil Court,
Dated : 29/11/2023 Gr. Mumbai C.R. No.03,
Dictated on : 29/11/2023
Typed on : 30/11/2023
Signed on : 30/11/2023
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“Certified to be true and correct copy of the original signed order”.
30/11/2023
at about p.m.
(Dastagir Babalal Mulla)
Stenographer Grade-I (Gazetted)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Nazera S. Shaikh
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of
Order
: 29/11/2023
Order signed by Hon'ble Judge
on
: 30/11/2023
Order uploaded on : 30/11/2023
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