1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CIVIL REVISION APPLICATION NO. 4/2010 Sharad Natthuji Hnge and others vs. Vinod Ramchandra Wankhede and others =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-== Mr. P.P.Kotwal, Counsel for Petitioner C ORAM : K.U.CHANDIWAL, J. DATED : 8th JUNE, 2010. Heard. 2) In spite of service, the respondents or the counsel absent. 3) R.C.S. No. 34/2005 is filed by the respondents seeking declaration, partition and separate possession, permanent injunction by valuing the suit at Rs.1000 + 817 + 1000, making the total at Rs.2817/- and thereon paid the court fees. 4) The case of the plaintiff before the learned C.J.J.D. Hinganghat, as spelt out in the plaint is that, the plaintiffs are the sons of defendant no.1 while defendant no.2 is the brother of defendant no.1 and naturally the uncle of the plaintiffs. The defendant nos. 3 to 5 2 (present appellants) are the intending purchasers of the ancestral property and of Hindu Joint Family property from defendant nos. 1 and 2. 5) The learned counsel for the appellants submits, since there operates an agreement in favour of the present appellant, the valuation should have been in terms of the value involved in the agreement and could not be in terms of Section 6(v) as has been done. The counsel assailed, the valuation should have been in terms of Section 6 (iv)(ha) of Bombay Court Fees Act, 1959. 6) In order to stress point addressed by the learned counsel, reliance is placed to the case in the matter of Abdul Gaffar vs. Niranjan Kumar and others AIR 2005 BOM 259, wherein the learned Single Judge found that the defendant no.1 in the said case was the party having executed agreement of development in favour of defendant no.3 and also authorized defendant no. 3 to nominate buyers and agreed to execute sale deeds in their favour and plaintiff thereafter filed suit for declaration, seeking avoidance of contract of sale and development. The observations of the learned Judge was, the suit could be in terms of Section 6 (iv)(ha) of the Bombay Court Fees Act. This was accepted by this Court. The factual matrix as could be seen, the plaintiff 3 was party to the transaction of agreement to the development of sale. No such eventuality surfaced in the present case. 7) The reliance of learned counsel in the matter of Berner Shipping Inc and another vs. Mrs. Kala Ramchandra and others AIR 2002 BOM 432 relates to the relief of avoidance of the contract by the plaintiff. It was to avoid the monetary loss and this Court found that it was capable of being valued in terms of preventing monetary loss being substantive relief, directed the ad-volerum court fee. No such eventuality could be emerge in the factual matrix of the present case. 8) By filing written statement below Exh.13, the maintainability of the suit on the ground of valuation was challenged by the present appellant. Consequently preliminary issue was formulated by the learned Judge as to whether defendant nos. 3 to 5 proved that this Court has no jurisdiction to entertain and try the present suit and the learned Judge has observed against the defendant nos. 3 to 5. Consequently the present CRA by the aggrieved defendant nos. 3 to 5. 9) While reading to the pleadings, the over all effect will have to be considered, the segregation of other 4 paragraph in advancing of contention of defendant is not to be encouraged. The main relief is of the partition of 1/6 share of the plaintiffs. Admittedly the plaintiffs are not the parties to the so called agreement of sale executed either by the father or the uncle. The relief being of partition, substantial in its nature, any agreement by the defendant nos. 1 and 2 would naturally be not binding to the share of the plaintiffs. It is not expected by the plaintiff that they should seek cancellation of the agreement of sale or thereupon pay for loss or prevention of monitory loss. It is settled law, the question of Court fee has to be considered in the light of the allegations made in the plaint and its decision should not be influenced either by pleadings in the written statement. The material allegations as reflected hereinabove relates particularly to claim of partition. The cause of action of which the reference is given in paragraph 11 of the plaint, also demonstrate that notice was issued to the defendants (appellants) and the cause for filing the suit was from execution of agreement of sale, which was avoidance of share of the plaintiffs in the field. 10) In the light of the nature of relief claimed by the plaintiffs, seeking 1/6th share in the suit filed and the ancillary relief for declaration being seeking avoidance of the agreement of sale, the observations of 5 the learned Judge about the payment of proper court fee by the plaintiff does not call for any interference. 11) Taking stock of the entire events, in the light of the pleadings, the objection raised by the appellants (defendant nos. 3 to 5) was correctly negatived by the learned Judge and by rejecting application Exh.5. The C.R.A. does not demonstrate any illegality or irregularity in handling the matter. Consequently no merits in the matter. It is dismissed. No costs. (K.U.Chandiwal) JUDGE. Rvjalit