1 210 ao.178.04 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 178 OF 2004 T.A. Johnny. ... Appellant Versus Mohammed Sahid Khan and others. ... Respondents ----- Mr. A.P.Khandani i/b Mr.Rajan K. Kakkara for the Appellant. None for the Respondents. ----- CORAM : A.S.OKA, J. DATE : 28 th March, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the Appellant. None appears for the Respondents. 2 The Appellant is the original plaintiff. By the impugned order, the learned Judge of the City Civil Court held that the City Civil Court does not have pecuniary jurisdiction to try and entertain the suit and the plaint was ordered to be returned to the Appellant – plaintiff. 2 210 ao.178.04 3 The suit is filed for specific performance of the alleged agreement for sale in respect of the suit room. The first prayer in the plaint is for declaration that the agreement is valid and subsisting. The second prayer is for passing decree for specific performance. The third prayer is in the alternative to the second prayer. The said prayer is for passing a decree for refund consideration / damages in the sum of Rs. 28,000/- together with interest, in the event second prayer for specific performance is not granted. The fourth prayer is a consequential prayer to the third prayer. The fifth prayer is in the alternative to the third prayer. It is for a direction to sell the suit room and for payment of a sum of Rs. 28,000/- with interest to the Appellant from the proceeds of the sale. 4 The learned trial Judge by the impugned order held that the valuation ought to have been made at an amount exceeding a sum of Rs. 50,000/-. The learned Judge held that the City Civil Court had no pecuniary jurisdiction to entertain the suit. 3 210 ao.178.04 5 After having heard the learned counsel appearing for the Appellant and after perusing the plaint, I find that the impugned order is completely erroneous. The suit was essentially for specific performance of the contract. According to the case of the Appellant, the agreed consideration was Rs.28,000/-. The said prayer for specific performance will be governed by Section 6 (xi) (a) of the Bombay Court Fees Act, 1959. The learned Judge found that the prayers (a) and (b) were rightly valued at Rs.28,000/-. The learned Judge held that the valuation of prayers (c) and (d) ought to have been made at Rs.28,000/- and the prayer clause (e) was ancilliary to prayers (a), (b) and (c). The learned Judge held that prayer (f) for injunction ought to have been valued at Rs. 600/-. Thus, what is held is that prayers (c) and (d) are in the alternative to prayers (a) and (b). The prayers (c) and (d) are the prayers in the alternative for passing money decree in the sum of Rs.28,000/-. Therefore, the suit was required to be valued on the basis of the higher of the two alternative claims. In the present case, the valuation of the alternative claims has been made at Rs.28,000/-. Thus, the valuation of the suit for the purposes of jurisdiction and Court Fees will be at Rs. 4 210 ao.178.04 28,000/- plus Rs.600/-. In the circumstances, the learned trial Judge committed gross error by holding that City Civil Court does not have pecuniary jurisdiction to entertain the suit. The valuation of the suit will be Rs.28,600/- which is less than Rs.50,000/- which is the outer limit of the pecuniary jurisdiction of the said Court. 6 Hence, the appeal must succeed and I pass the following order: i. The impugned order is quashed and set aside and the trial Court is directed to proceed with the suit in accordance with law ; ii. The appeal is allowed on above terms with no order as to costs ; iii. Hearing of the suit is expedited ; iv. Civil Application No. 236 of 2004 does not survive and the same is disposed of. [ A.S.OKA, J ]