1 FA 477 OF 2010 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.477 OF 2010 Shyamsundar Thakur Prasad Pandit .. Appellant. -versus Santosh Kumar .. Respondent. Mr. Anil Singh i/b D.R. Shah, for the appellant. Mr. V.R. Tripathi, for the respondent CORAM: A. S. OKA, J. DATED: 20th April, 2011 P.C. 1. Heard learned counsel appearing for the appellant and learned counsel appearing for the respondent. The appellant is the original plaintiff and the respondent is defendant. By the impugned judgment and decree, the suit filed by the appellant has been dismissed. Perusal of the findings recorded by the trial Court shows that the trial Court came to the conclusion that the suit ought to have been valued as per section 6(iv)(d) of the Bombay Court Fees Act, 1959 (for the sake of convenience hereinafter referred as “the said Act”) and if the suit had been valued properly, the City Civil Court will not have jurisdiction to entertain the suit. The trial Court has also held that there are no averments made in the plaint with regard to the valuation of the subject matter 2 FA 477 OF 2010 and Court fees. 2. After recording a finding that the City Civil Court had no pecuniary jurisdiction to entertain the suit, the trial Court ought to have passed an order of return of the plaint for presentation to the proper Court. 3. Learned counsel appearing for the appellant on instructions states that appellant is accepting the finding recorded by the trial Court on issue No.2 on pecuniary jurisdiction and the appellant is ready and willing to correct valuation of the suit in conformity with section 6(iv)(d) of the said Act and to pay deficit Court fees. 4. Once finding on issue No.2 is accepted as correct, it will have to be held that the City Civil Court had no pecuniary jurisdiction to entertain and try the suit. Hence, the impugned judgment and decree will have to be substituted by an order of return of plaint. 5. Learned counsel appearing for the respondent submitted that even otherwise the suit is not maintainable and there is no merit in the suit. Once it is held that City Civil Court did not possess the pecuniary jurisdiction to entertain the suit, the only order which can be passed is of return of the plaint and the contentions which are raised by the respondents will remain open in the Court in which suit will be ultimately filed. Hence I pass the following order. ORDER 3 FA 477 OF 2010 I) The impugned judgment and decree dated 11.1.2010, is modified. II) The plaint shall be ordered to be returned to the appellant for presentation to proper Court. Before returning the plaint, appellant will be entitled to carry out amendment to the valuation clause and to make payment of deficit Court fees. III) All contentions of the parties on merits of the suit are kept open. IV)Appeal is allowed in above terms with no orders as to costs. V) Civil Application No.1100 of 2010 does not survive and the same is disposed of. (A. S. OKA, J.)