1 1.ao.539.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION skt APPEAL FROM ORDER NO. 539 OF 2010 WITH CIVIL APPLICATION NO. 1045 OF 2010 Anil Pravinchandra Shukla ... Appellant (Org. Plaintiff) Vs. Janvika Pravinchandra Shukla ... Respondent (Org. Defendant) ...... Ms.Nikita Trivedi h/f. Mr.M.L. Naik for the appellant. Mr.Harihar Bhave a/w. Ms.Manisha Pant and Ms.Aart Khadilkar i/by Bhave and Co. for the respondent. ...... CORAM : J.H. BHATIA, J. DATE : 30th AUGUST, 2010. P.C. 1 Heard the learned counsel for the parties. 2 For the reasons given in the application dated 1st June 2010 for condonation of dealy, the delay is condoned. The Civil Application stands disposed of. 3 The plaintiff filed S.C.Suit No.194 of 2009 before the City Civil Court, Mumbai claiming that the suit property belongs to his deceased father. The defendant-respondent is his step mother and she is presently living in that house. The plaintiff is residing in a different property for long time. The plaintiff made the following prayers which are relevant : 2 1.ao.539.10.sxw (a) That it be declared that the threatened action of the defendant for obstructing in the suit premises is bad, illegal wrongful and in any event not binding upon the plaintiff. (b) That the defendant her servants and/or agents be restrained permanently from creating any obstacle or hindrance to the plaintiff while entering the suit premises. 4 After hearing the parties, the Trial Court passed the impugned order dated 14-05-2009 holding that the plaintiff is required to pay court fee as per Section 6(iv)(d) of the Bombay Court Fees Act (for short ‘the Act’) as per the value of the property. That order is challenged. 5 According to the plaintiff, the suit is not susceptible to the monetary valuation and therefore, the case would fall under Section 6(iv)(j) of the Act and fixed court fees has to be paid presuming the value of the property to be Rs.1,000/-. 6 Admittedly, the plaintiff is not in possession of the property. The property is in possession of the defendant. According to the plaintiff, the property was left behind by his deceased father and therefore under the Hindu Succession Act, he has got share in the property. The plaintiff has not filed the suit for partition and separate possession, claiming share in the property, for the reasons best known to him. However, the prayer 3 1.ao.539.10.sxw clauses (a) and (b) have been drafted very clumsily possibly with only intention to bring the case under Section 6(iv)(j) of the Act for the purpose of valuation and payment of court fees. If these two prayer clauses are carefully read, the only meaning is that the plaintiff wants a declaration that he has legal right of possession over the property along with the defendant as a legal heir of his deceased father and also claims perpetual injunction restraining the defendant from causing any obstruction in exercise of that right. For this purpose, naturally, the plaintiff will have to prove his title or right in the said property. It means he has to prove that he is owner of that property may be to the extent of certain share in the property, and he also wants consequential relief of perpetual injunction. The case falls under Section 6(iv)(d) of the Act, which provides that if the suit is only for declaration of ownership or such other right, one fourth of ad volorem fee which would be leviable for the suit for possession, is required to be paid. Under third proviso, if, with the said declaration, the plaintiff also seeks consequential reliefs other than the possession, amount of the fee shall be one half of ad valorem fee and in case, the consequential relief is for possession, full amount of ad valorem fee has to be paid. 4 1.ao.539.10.sxw 7 Section 6(iv)(j) provides that in suits where declaration is sought with or without injunction or other consequential reliefs and subject matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by the Act, ad valorem fee payable, as if the amount or the value of the subject matter is Rs.1000/-. 8 In the present case, the suit is pertaining a flat, which is immovable property. It is impossible to hold that the flat is not susceptible to the monetary valuation. The learned counsel for the appellant placed reliance upon “ Rajaram Bhagwati Tiwari & Ors Vs. Municipal Corporation of Greater Bombay & Ors., 2004(3) Mh.L.J..” In that case also, it was held that expression not susceptible of monetary evaluation in Section 6(iv)(j) means the bundle of facts, that are mentioned in the plaint which constitute the cause of action, are such that it cannot be evaluated in terms of money. In that case, the plaintiff was seeking enforcement of rights flowing out of statutory obligations, created in favour of occupants of a slum under the Slum Rehabilitation Act as well as the Scheme framed under Rule 33(7) of the Development Control Rules. Therefore, it was held that subject matter of the suit could not be susceptible to monetary evaluation. That authority has no application to the facts of the present case. 5 1.ao.539.10.sxw 9 Taking into consideration the facts and legal position, the Trial Court was right in holding that Court fee has to be paid as per the provisions of Section 6(iv)(d) of the Act. There is no substance in the present application. 10 Therefore, Appeal stands dismissed. 11 In view of the dismissal of the Appeal, the Civil Application No. 1440 of 2010 does not survive and stands disposed of. [ J.H. BHATIA, J.]