gst 1 cra205.10.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. CIVIL REVISION APPLICATION NO. 205 OF 2010. Bhushan Karia & Ors. .. ..... .... .... ..Applicants. V/s Sou.Sunanda Pandurang Wanjale & Ors. .... .... ..Respondents. Mr.Y.S.Jahagirdar, Sr. Counsel with Mr.S.S.Kanetkar, Adv. For the applicants. Mr.Sushil Nimbkar, Adv. For the R.Nos. 1 to 46. CORAM: B.R. GAVAI, J. 9th March, 2011 PC: Rule. Rule made returnable forthwith. Heard by consent of parties. Shri Prashant More appears for respondent Nos.48, 49,50,51 & 53. 1. Since vide order dated 29.9.2010 this Court (Bhatia, J.) has already passed an order that since unserved respondents are original defendants, their presence is not necessary for decision of the present revision, requirement of notice to said respondents shall stand waives. 2. By way of present revision the applicants challenge the order dated 23.11.2009 vide which an application of the present applicants objecting to the jurisdiction of the Court on the ground that the Court does not have pecuniary jurisdiction came to be rejected. 3. The respondent-plaintiffs have filed a suit praying for declaration that since the plaintiffs have 2/3 undivided share in the suit property and since in the sale deeds stated in the plaint the plaintiffs have not signed as contesting parties the said sale deeds be declared as not binding on the plaintiffs. Declaration is also sought that the plaintiffs have peremptory right to purchase the suit property. A permanent injunction is also sought against the defendants from gst 2 cra205.10.sxw transferring the suit property and not to change nature of the suit property. 4. In the said suit an application under section 9A read with Order 7 Rule 11 of CPC came to be filed on the ground that perusal of the plaint would reveal that the relief claimed in the plaint was that 13 registered sale deeds mentioned in the plaint were not binding on them and as such in effect prayer in suit was avoiding of sale deeds or for declaring them null and void. It was therefore submitted that the suit ought to have been valid under section 6(iv)(ha) of the Bombay Court Fees Act (hereinafter referred to as "the said Act") and since the plaintiffs have not done so the suit was grossly undervalued. It was also held that since valuation of suit would be more than rupees one lac the suit would be beyond pecuniary jurisdiction of the learned Civil Judge, Junior Division. The application was resisted by the plaintiffs on the ground that the claim of the plaintiffs was that the sale deeds were illegal and as such suit would not fall under section 6(iv)(ha) of the said Act. A preliminary objection raised by the applicants was rejected. Hence the present revision application. 5. Shri Jahagirdar, learned senior counsel appearing for the petitioner submits that for ascertaining relief claimed in the petition it is necessary that averments made in the plaint are required to be read in their entirety. He submits that perusal of the pleadings would reveal that the plaintiffs had in effect sought a declaration that the said sale deeds mentioned in the plaint, are null and void. The applicants had also prayed for cancellation of sale deeds and for declaration with regard to their peremptory right. 6. The learned counsel for the respondent-plaintiffs on the contrary submits that since the suit was for claiming relief of residual injunction it would fall under section 6(iv)(j) of the said Act and therefore no error is committed by the learned trial Court in rejecting the application. 7. The learned trial Court while rejecting the application of the plaintiffs has held that since from the pleadings it was apparent that for the last more than 30 gst 3 cra205.10.sxw years the plaintiffs were holding the suit, valuation of the suit for the relief of preemption was rightly made. 8. For determining the relief claimed in the suit it will be necessary to refer to the entire averments made in the plaint. Reference in this respect could be made to a judgment of this Court in the case of Vinod Vyankat Narswaiyya Gannu V/s Sunil s/o Diwakar Poshettiwar & Ors., 2004(4) Mh.L.J. 245. 9. A perusal of the pleadings in the plaint in particular paragraphs 3 and 6 thereof would reveal that the plaintiffs has in fact sought a declaration that sale deeds mentioned in the plaint are not binding upon him. Not only that in para 6 he has specifically made an averment for cancellation of sale deeds and after cancellation for getting to get sale deeds executed in their favour. 10. The learned Single Judge of this Court in the case of Abdul Gaffar s/o Abdul Samad V/s Niranjan Kumar s/o Ramnath Prasad Dwivedi & Ors., 2005(3) ALL MR 179 in the similar facts has held that when the plaintiffs has pleaded for declaration that the agreement for development by defendant in favour of another not binding and has also a relief for perpetual injunction, the Court fees that would be levied would be sought as per the provisions of section 6(iv) (ha) of the said Act. 11. From perusal of the pleadings in their entirety, it would reveal that though prayer clause is ingenuously drafted, the prayer in effect is for avoiding the sale deeds which are already executed in favour of the present petitioners and for cancellation of said sale deeds. In that view of the matter, I find that the court fees on the said suit would have to be valued as per section 6(iv)(ha) of the said act. In that view of the matter I find that the impugned order is not sustainable and the said is quashed and set aside. Consequently, the plaintiffs are directed to value the suit as per the section 6(iv)(ha) of the said Act and pay necessary court fees within a period of six weeks from today. 12. Since as per the valuation under section 6(iv)(ha) of the suit, it would admittedly be more than rupees one lac the suit shall stand transferred to the gst 4 cra205.10.sxw Court of learned Civil Judge Senior Division, Pune. 13. Rule made absolute in aforesaid terms with no order as to costs. (B.R. Gavai, J) gst 5 cra205.10.sxw