1 AO-568-03.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi APPEAL FROM ORDER NO. 568 OF 2003 IN L.C. SUIT NO. 6540 OF 1993 1. Mrs. Sabrinna Alex D'Cunha ) residing at Ravi Kiran Manish Nagar, ) Kalwa (west), District Thane. ) 2. Celine Ozi D'Cunha, residing at ) A/1, Parswanath Apartment, Desai & ) Seth Nagar, S.V.Road, Borivali (West) Mumbai 400 092. )..Appellants (Orig. Plaintiffs) Vs. 1. Mr. Rock N.Tixeira (Deleted, expired) residing at Rock House, Koliveri ) Village, Kalina Santacruz (East), ) Bombay 400 055. ) 2. Raymond R. Tixeira, ) 3. Maxie R.Tixeira, Nos. 2 & 3 ) having their adress at Rock House, ) Kolivery Village,Kalina ) Santacruz (East), Mumbai 400 055. ) 4. Municipal Corporation of Gr.Bombay) (Dismissed) a statutory Corporation ) established under the Bombay ) Municipal Corporation Act, 1888, ) having their had office at ) Mahapalika Marg, Fort, ) Mumbai 400 001. ).. Respondents (Org. defendants) 2 AO-568-03.sxw Vs. Mr. Rock N. Tixeira & Ors. ... Respondents (Orig. Defendants) Mr. Clive D'Souza,Advocate, for the appellants. Mr.Rahul Gaonkar,Advocate for the respondent No.2. Smt. K.K.Soraan, Advocate, for the respondent No.4. CORAM: J.H.BHATIA,J. DATE : 6th June, 2011. JUDGMENT: 1. This Appeal has been field against the judgment and order passed by the learned Judge, City Civil Court, Bombay, on 5.2.2003 directing return of the plaint in Suit No.6540 of 1993 to the plaintiffs/appellants for presentation before the proper Court on the ground that the suit was not valued properly and the value of the property may be more than the pecuniary jurisdiction of the City Civil Court, Bombay. 2. The plaintiffs filed the said suit claiming share in the suit property admeasuring 1467 sq. mtrs. with a structure of 300 sq. ft. situated at Kalina, Santacruz (East), Bombay. The plaintiffs tentatively valued their share at Rs. 25,000/- and stated that after valuation if the value of the property is found to be more, they would be paying necessary Court fee. As at the time of filing the suit, defendant No.1, who was father of the plaintiffs Nos. 1 and 2 and defendant Nos. 3 AO-568-03.sxw 2 and 3 was alive, therefore, the plaintiffs had claimed 40% share. During the pendency of the suit, the father died. It appears that the trial Court framed several issues and the defendants were called upon to lead evidence on all the issues. The trial Court, after hearing the evidence of the parties, came to conclusion that the plaintiffs are entitled to 50% share in the property and they are entitled to get possession of the same. However, in respect of issue No.1 pertaining to the valuation of the property and the pecuniary jurisdiction of the Court, the learned Judge came to the conclusion that the value of the property must be more than Rs. 50,000/- which is the pecuniary jurisdiction of the City Civil Court. In view of this, the learned Judge inspite of giving findings on almost all the issues in favour of the plaintiffs, directed that the plaint be returned to the plaintiffs for presentation before the proper Court. That order is challenged in the present Appeal. 3. On perusal of the impugned judgment and order, it appears that the defendant No.2 had filed one valuation report dated 15.8.1995 from one HM Panchal & Associates, but as no oral evidence was led nor the document was admitted, the valuation report was not proved and thus, the defendant had failed to prove that the valuation of the property was Rs.12 lakh as per the valuation report. At the same time, the plaintiffs had also not led any evidence to show what 4 AO-568-03.sxw would be the correct valuation of the property and their share. It appears that merely because the property is situated at Kalina, which is a part of the Bombay Suburban District, the Court came to conclusion that the valuation must be more than Rs.50,000/- and therefore beyond the pecuniary jurisdiction of the City Civil Court. In my opinion, it would not be proper to come to such conclusion. The Court should have come to specific finding about the valuation of the property. That would help to find out whether the value of share of the plaintiffs was Rs. 50,000/- or more and if it was more, how much Court fee the plaintiffs would be required to pay. 4. In view of these circumstances, some evidence is necessary about valuation. With consent of the learned Counsel for both the parties, the Appeal stands disposed of with the following directinos :- The Suit No.6540 of 1993 is hereby remanded back to the trial Court with directions that both the parties be given an opportunity to lead evidence about the valuation of the property and the value of the share of the plaintiffs in the said property. After hearing evidence, the trial court shall give finding only on issue No.1 pertaining to the valuation. In case, the trial Court comes to conclusion that the suit is within the pecuniary jurisdiction and it is properly valued, the trial 5 AO-568-03.sxw Court shall pass decree accordingly on the basis of findings on other issues, whjich are already recorded. In case the Court comes to conclusion that the suit is not properly valued, it shall give direction for return of the plaint. The trial Court shall dispose of the matter within six months. Appeal stands disposed of accordingly. (J.H.BHATIA,J.)