1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.102 OF 2010 Maruti Vikas Enterprises ..Applicant a registered Partnership Firm having its registered office at B/2, Gurudutt, 2 nd floor, Patel Chowk, Ghatkopar (East), Mumbai  400 077. V/s. 1. Jitendra N. Patel ..Respondents alias Pokar Aged 58 years residing at Pokar Niwas at Gandhi Nagar, Off. LBS Marg, Ghatkopar (West) 2. Municipal Corporation of Greater Mumbai a statutory body corporation having its office at Mahapalika Building, Mahapalika Marg, Mumbai  400 001. Mr.J.J.Thakkar, Advocate, for the Applicant Mr.A.Y.Sakhare, Senior Counsel with Ms Anita Castelino h/f.Diwakar Dwivedi, Advocate, for Respondent No.1 Smt.K.K.Soraan, Advocate, for MCGM CORAM : R.C.CHAVAN, J. JUDGMENT RESERVED ON : 28TH JULY, 2010 JUDGMENT PRONOUNCED ON : 11TH AUGUST, 2010 2 JUDGMENT . This Civil Revision Application, directed against Judgment of the learned Judge of the City Civil Court in Long Cause Suit No. 1653 of 2009 answering preliminary issue about his jurisdiction to try the suit, is being disposed of finally at admission stage by consent of parties. 2. Facts which are material for deciding this Civil Revision Application are as under :- The Respondent No.1  original Plaintiff, Jitendra N. Patel is owner of an old dilapidated building having 38 residential units and six shops occupied by tenants. He entered into a Development Agreement with the Applicant- original Defendant No.1 on 21 st April, 2005 for demolition and reconstruction of the building. According to averments in the plaint (which alone are material for deciding this Civil Revision Application), 3 since Applicant did not make any progress in re-development, possibly for want of funds, Respondent No.1  original Plaintiff entered into negotiations with M/s. Ashapura Construction Company (not a party) for redevelopment. They issued a public notice, upon which the present Applicant raised an objection, inspite of which, Plaintiff entered into an Agreement with M/s. Ashapura Construction Company on 26 th December, 2006. When M/s. Ashapura Construction Company also did not comply, Plaintiff reached a fresh Memorandum of Understanding with M/s. Deep Construction Company (not a party) on 30 th April, 2007, valued at Rs.6,66,00,000/-. Since this Memorandum of Understanding too did not fructify, M/s. Deep Construction Company filed suit No.172 of 2009 on the Original Side of High Court, Bombay. In that suit, the Applicant has been ordered to be joined as Defendant No.1. 4 3. According to the Plaintiff, the present Applicant tried to take forcible possession and since police took no action of Plaintiff's complaint, Plaintiff filed Criminal Writ Petition No.1806 of 2009 before this Court. Applicant put up a board stating he was re-developing the property, placed security guards, obtained consents of tenants as also an intimation of disapproval from Respondent No.2  Municipal Corporation of Greater Mumbai (original Defendant No.2) on 21 st January, 2009, and started demolition. 4. In paragraph 27 of the plaint, Plaintiff alleged that Applicant had committed breaches of terms of Agreement dated 21 st April, 2005. The Plaintiff claimed a declaration that Intimation of disapproval was obtained by the Applicant from Defendant No.2  Municipal Corporation of Grater Mumbai in a fraudulent manner and therefore sought its cancellation. He also sought a declaration 5 that Agreements between Applicant and tenants are null and void. He claimed interim injunction to restrain Applicant from entering into Agreements with tenants, demolishing five rooms in Plaintiff's possession and from trespassing over the property. He valued the suit under Section 6(iv)(j) of the Bombay Court Fees Act. 5. The Applicant raised an objection to jurisdiction of the Court and sought it to be decided as a preliminary issue under Section 9A of the Code of Civil Procedure, 1908 by taking out Notice of Motion No.1726 of 2009, which has been rejected by the impugned order. 6. I have heard both the learned Counsel for the Applicant and Respondent No.1, as also the learned Counsel for Respondent No.2  Municipal Corporation of Greater Mumbai. 7. The learned Counsel for the Applicant 6 submitted that though jurisdictional issue has to be decided with reference to averments in the plaint, though the Plaintiff has by cleverly drafting the plaint tried to get over payment of Court fees, the Court cannot ignore what it would be required to decide. He submitted that even under the Agreement with Applicant, Plaintiff had received Rs. 2,00,000/- as consideration. Under that Agreement 56% of the new construction was to be given to Plaintiff. Plaintiff's Memorandum of Understanding with M/s. Deep Construction Company is for Rs.6,66,00,000/- and, the value of Plaintiff's share in new construction would be more than Rs.3,00,000,00/-, beyond the jurisdiction of City Civil Court. 8. On the other hand, the learned Counsel for the original Plaintiff (Respondent No.1 here) submitted that neither Agreement with Applicant, nor that with M/s. Deep Construction Company, is subject matter of the 7 suit. The declaration claimed is that Applicant obtained Intimation of disapproval from Municipal Corporation of Greater Mumbai fraudulently, and seeks its cancellation. This is about performance of statutory obligation by Respondent No.2  Municipal Corporation of Greater Mumbai and therefore, not susceptible to monetary valuation. 9. Both the learned Counsel relied on a number of Judgments in support of their respective contentions. Before going to those Judgments it may be necessary to first clear the confusion in paragraph 7 of the impugned order about presumption in favour of jurisdiction of a Civil Court. A Civil Court will always be presumed to have jurisdiction to decide a dispute of a Civil nature unless its jurisdiction is barred by any express statutory provision. This presumption is about jurisdiction of Civil Courts as a genus  a family. This does not imply that any 8 Civil Court may presume jurisdiction in respect of any dispute of Civil nature. Jurisdiction of a specific Civil Court will have to be determined with respect to the territorial limits for which it is established as also the pecuniary jurisdiction conferred upon it, about which there is no presumption and is expressly a matter of examination by the Registry even before a suit is placed for first orders before the Court. The learned Judge is, however, right in observing that jurisdiction is to be decided with respect to plaint averments and not defences that may be raised. 10. With this prelude let me refer to the Judgments on which both the learned Counsel relied. In Nagin M. Dagli v. Haribhai M. Patel, reported in 1979 Bom.C.R.348, a Division Bench of this Court observed that when nature of suit is to be determined the Court has to look at the real substance of the 9 suit and not legal ingenuity in drafting the plaint. Facts and other observations in the Judgment are not relevant for deciding this Civil Revision Application. 11. There can be no dispute about the proposition that jurisdiction of a Court, though a mixed question of fact and law would have to be decided first, with reference to averments in the plaint, before considering any prayer for injunctive relief in view of provisions of Section 9A of the Code of Civil Procedure, 1908. This is what is held by another Division Bench in Meher Singh Versus Deepak Sawhny & another, reported in 1999(1)Bom.C.R.107, on which the learned Counsel for the Applicant relied. 12. In Mrs. Mani Seervai Vs. Smt. Tulsibai Hiranand Achhipalia & ors, reported in 2006(3) ALL MR 104, a learned Single Judge referred to Judgment in Meher Singh (Supra). In that 10 case, the question was of giving opportunity to the parties to lead evidence on the issue of jurisdiction. In this case, as observed in the impugned order, the parties wanted the issue to be decided on the basis of material on record. 13. In N.V.SRINIVASA MURTHY AND OTHERS Versus MARIYAMMA (DEAD) BY PROPOSED LRS. AND OTHERS, reported in (2005) 5 Supreme Court Cases 548, the Supreme Court held that omitting to claim a relief by clever drafting in order to get over the bar of limitation and payment of ad valorem in Court fee would make the plaint liable to rejection. Again in HARDESH ORES (P) LTD. Versus HEDE AND COMPANY, reported in (2007) 5 Supreme Court Cases 614, the Supreme Court held that a plaint would be liable to be rejected under Order VII, Rule 11 of the Code of Civil Procedure, 1908 on the ground of limitation only where from the plaint averments the suit appears to be 11 barred, and that real dispute cannot be camouflaged. 14. As rightly pointed out by the learned Counsel for Respondent No.1 the question whether the plaint could be rejected for want of a cause of action (or bar of limitation) needs to be distinguished from the question of valuation, though in N.V.SRINIVASA MURTHY AND OTHERS Versus MARIYAMMA (DEAD) BY PROPOSED LRS. AND OTHERS, reported in (2005) 5 Supreme Court Cases 548 there is a reference to avoidance to pay ad valerem Court fees. At this stage it is not necessary to go into the question whether on the pleadings raised, the Plaintiff could be granted the reliefs claimed, as it would amount to going into merits of the matter. If relief of declaration that intimation of disapproval was fraudulently obtained cannot be granted without a declaration that Agreement of Plaintiff with Applicant is unenforceable, or 12 has expired, or does not subsist, and the Plaintiff has consciously chosen not to seek any relief in respect of his Agreement dated 21 st April, 2005 with Applicant, the Plaintiff would bear the consequences. 15. Judgments in Volition Investment Pvt. Ltd. Versus Madhuri Jitendra Mashroo & another, reported in 2003(5) Bom.C.R.262 and Chheda Housing Development Corporation Versus Bibijan Shaikh Farid & ors, reported in 2007(2) Bom.C.R.587 would have been relevant only if agreement dated 21 st April, 2005 was in question which, as already observed, is not questioned. But the learned Counsel for the Applicant rightly submitted that Plaintiff had sought a declaration that agreements with tenants are null and void, which in view of these two Judgments can be enforced and are held to be benefits arising out of land, and therefore, immovable property. This aspect would therefore have to be looked into. He 13 placed two such agreements for my perusal, each of which is valued at more than Rs. 1,00,000/-. The learned Counsel for the Applicant further submitted that this aspect should not have been overlooked by the learned Trial Judge. 16. The learned Senior Counsel for Respondent No.1  original Plaintiff relied on Judgment of this Court in Rajaram Bhagwati Tiwari & others Versus Municipal Corporation of Greater Mumbai & others, reported in 2004(Supp.2)Bom.C.R.891, which relies on Judgment in Vrindavan (Borivali) Co-operative Housing Society Limited Versus Karmarkar Brothers & others, reported in 1983(2)Bom.C.R. 267 and Judgment in Jafferali Alibhai and Anr. Vs. S.R.Dossa & Co. and Anr., reported in 1969 BCI(0)26. It has been held that when the relief claimed is enforcement of a statutory obligation, suit is correctly valued under Section 6(iv)(j) of the Bombay Court Fees Act. 14 These Judgments would have been applicable had the Plaintiff claimed only the declaration that intimation of disapproval dated 25 th January, 2009 issued by Respondent No.2 was obtained in fraudulent manner, since the question would then be as to whether Respondent No.2 discharged its statutory obligations properly. Here Respondent No.1  original Plaintiff has also claimed a declaration that agreements entered into by Applicant with tenants for giving alternate accommodation are illegal. Without enumerating the claims in those agreements and valuing the claims accordingly, such a declaration could not have been claimed. As pointed out by the learned Counsel for the Applicant, each of the two Agreements produced for perusal are valued at more than Rs. 1,00,000/-. This was specifically stated even before the learned Judge, City Civil Court in Affidavit in rejoinder (though not in Affidavit in support of Notice of Motion). 15 17. In view of this, the impugned order cannot be sustained. The learned Trial Judge should have held that the suit was not properly valued and that it had to be valued at more than Rs.50,000/- and thus beyond the jurisdiction of the City Civil Court. 18. The Civil Revision Application is allowed. Impugned order is quashed and set aside, holding that City Civil Court had no jurisdiction to try the suit and directing the learned Judge to pass consequential orders of returning the plaint. (R.C.CHAVAN, J.)