KBP wp5080-09.sxw : 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5080 OF 2009 Gangadhar Dharma Devare .. Petitioner V/s. Smt.Reshmabai Dharma Devare & ors. .. Respondents ..... Mr.Dilip Bodake, for petitioner. Mr.A.R.Kapadnis, for respondent no.2. ..... CORAM : A.S.OKA, J. DATE : 22 nd JULY, 2009. P.C. : 1] Heard Mr.Bodake, learned Advocate for petitioner. 2] Rule. Advocate for second respondent waives service. 3] Second respondent is the appellant before the District Court. Considering the nature of order which is proposed to be passed it is not necessary to serve the notice of Rule to the other respondents. 4] Second respondent is second defendant in the suit filed by the petitioner. Paragraph No.8 of the plaint shows that the valuation of the suit for the purpose of jurisdiction and court fees is made at Rs.3,85,000/-. An application was made in the said suit for temporary injunction. Learned Civil Judge Senior Division, Malegaon allowed the said application and, therefore, second respondent preferred an appeal before the District Court. By the impugned order, said appeal has been allowed. 5] Learned Counsel for petitioner has produced for perusal of the Court a KBP wp5080-09.sxw : 2 : certified copy of the plaint which shows that the valuation of the suit filed by the petitioner for the purpose of court fees and jurisdiction is made at Rs. 3,85,000/-. In view of the provisions of Section 26 of the Bombay Civil Court Act, 1869, the appeal was maintenable before this Court. However, this aspect has not been noticed by the District Court and, therefore, said appeal has been entertained and has been heard on merits. 6] The appeal was not competent before the District Court. Therefore, the impugned order will have to be set aside and the memorandum of appeal will have to be returned to the second respondent for presentation before this Court. 7] In view of the above following order is passed: i. The impugned judgment and order dated 27 th April, 2009 is quashed and set aside. ii. Misc. Civil Appeal No.4 of 2009 is restored to the file of District Court. The said appeal shall be returned to the second respondent for presentation before this court. iii. All contentions are kept open. ( A.S.OKA, J. )