1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 493 OF 2006 APPEAL FROM ORDER NO. 493 OF 2006 APPEAL FROM ORDER NO. 493 OF 2006 FROM (APPLICATION UNDER S-9-a) IN BCCC SUIT NO.2023 OF 2005 1. Dr. G.V.Iyengar, Adult ) 6202, Maiden Lane, Bethesda, ) M.D.20817, U.S.A., through his ) P.O.A., Shri Mohanlal Sukhramdas) Gogia, Adult, appellant No.2 ) hereibelow: residing at B-6 ) Nidhi CHS Ltd., Sector-16A, ) Vasjo. Mavi Mumbai 400 703 ) 2) Shri Mohanlal Sukhramdas Gogia, ) Adult, residing at: B-6, ) Nidhi CHS Ltd., Sector-16-A, ) Vashi, Navi Mumbai-400 703 )..Petitioners (Org.Defts.Nos.5 & 6) Versus 1) Shri A.R.Sampathkumar, Adult, ) The Mysore CHS Ltd., Plot No.73,) 2 Mahul Road, Chembur, ) Mumbai 400 074. ) 2) The Mysore CHS Ltd., Plot No.73 ) Mahul Road, Chembur, ) Mumbai 400 074. ) 3) Shri Gurudas Nagtesh Pai, Adult ) The Chairman, ) The Mysore CHS Ltd., Plot No.73 ) Mahul Road, Chembur, ) Mumbai 400 074. ) 4. Shri E.C. John, Adult, ) The Hon. Secretary, ) The Mysore CHS Ltd., Plot No.73,) 5) Shri Vishwanath, Adult, ) Former Hon. Secretary, ) The Mysore CHS Ltd., Plot No.73 ) Mahul Road, Chembur, ) Mumbai 400 074. ) 6) Shri R.K.Ramanathan, Adult, ) residing at: B-6, Nidhi CHS Ltd.) Sector-16A, Vashi, ) 3 Navi Mumbai 400 703. ) 7) Shri S. Sriram, Adult, ) residig at: Door No.15, Sector-3) 5th Floor, Ridhi Sidhi Society ) New panvel. )..Respondents (No.1 org.plaintif Nos. 2 to 7 org. Defts. 1 to 4 & 7 & 8). Mr. A.D.Chandra Bose,Advocate, for the appellant. Mr. M.N.Morje, Advocate a/w. Mr. Vidhyabhushan Malik, for Respondent No.1. Ms. S.R.Peerbhoy,Advocate, for respondents Nos. 2 to 4. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 29th February,2008. DATE: 29th February,2008. DATE: 29th February,2008. JUDGMENT JUDGMENT JUDGMENT 1. Heard learned Counsel for the parties. Perused the record. 2. To state in brief, the plaintiff, who is respondent No.1 in the present Appeal, claims to be nephew of Dr. Gopal Ayengar, who was the member of The Mysore Co-operative Housing Society, respondent No.2. 4 As a member, the plot No.73 was allotted to Dr. Gopal Ayengar by the Society on which he had constructed a bungalow. Admittedly, Dr. Gopal Ayengar died in September 1992 leaving behind only his widow Mrs. Rajalakshmi. She also died in the year 2002. The present appellant No.1/defendant No.5 claims to be a distant nephew of Rajalakshmi Ayengar. Appellant No.2/defendangt No.6 claims to be the power of attorney holder for the defendant No.5 who is residing in U.S.A. The plaintiff claims to be in possession of the said bungalow and also claims to be nephew and the legal heir of Dr. Gopal Ayengar. He filed BCCC Suit No.2023 of 2005 seeking several reliefs. The appellants/defendants Nos. 5 and 6 raised the preliminary objection about the maintainability of the suit on two grounds. Firstly, that the suit is not tenable before the City Civil Court and secondly, the suit is not valued properly for the purpose of pecuniary jurisdiction and Court fees. According to them, The market value of the property is more than Rs.60 lakhs. and, therefore, the City Civil Court does not have jurisdiction to entertain the suit. After hearing the parties, the learned trial Court rejected the contention of defendants Nos. 5 and 6 and held that the suit is not for possession but only for declaration of lawful possession and other consequential reliefs and therefore it is within the jurisdiction of 5 the City Civil Court and is properly valued. 3. The relevant prayers made in the plaint are as follows :- "(a) This Hon’ble Court be pleased to declare that Plaintiff is in continuous and peaceful possession of the plot of land bearing No.73 admeasuring 60 x 90 - sq. ft. with bungalow (1818 sq. ft. built-up) thereon at 73, Mysore Colony, Mahul Road, Chembur, Mumbai - 74 as a Member of the society and as the heir of original allottee and member late Dr. A.R. Gopal-Ayengar." "(c) That the Honourable Court be pleased to declare that alleged will in respect of transfer of property in respect of plot of land bearing No.73 admeassuring 60 x 90 - sq. ft. with bungalow 1818 sq. feet (built-up) thereon at 73, Mysore Colony, Mahul Road, Chembur, Mumbai -74 is illegal improper and bad in law and not binding upon Plaintiff." "(e) That the Defendant No.1 to 3 and 5 to 8 their agents and servants be restrained by order 6 and permanent injunction from interfering with or disturbing the possession of the Plaintiff and the members of family in respect of the peaceful possession and enjoyment of the plot of land bearing No.73 admeasuring 60 x 90 - sq. ft. with bungalow thereon at 73, Mysore Colony, Mahul Road, Chembur, Mumbai-74." 4. The plaintiff has valued the suit under Section 6(iv)(j) of the Bombay Court-fees Act, 1959 on the ground that the declaration sought by him and the subject matter in the dispute is not susceptible of monetary evaluation and there is no specific provision about the payment of Court fee in respect of such suits. On the other hand, the learned Counsel for the appellants contended that the suit squarely falls under Section 6(iv)(d) of the Bombay Court-fees Act. The relief sought in the suit is in the nature of declaration of being legal heir of deceased Dr. Gopal Ayengar and, therefore, the suit will lie in the High Court and not in the City Civil Court. 5. If prayer clause (a) is carefully read, it clearly shows that plaintiff wants a declaration that he is in continuous and peaceful possession of the suit 7 property as a member of the Society and as an heir of original allottee and member late Dr. A.R.Gopal Ayengar. Therefore, from this it is clear that he does not seek mere declaration that he is in possession of the property nor he seeks a relief that he should not be dispossessed otherwise than by following due process of law. He clearly claims a declaration that he is in possession as a legal heir of deceased Dr. Gopal Ayengar and as member of the Society. It means he claims declaration that he is in possession as owner of the property. The defendant No.5 claims the property on the ground that Rajalakshmi Ayengar, the widow of Dr. Gopal Ayengar had executed a Will and a nomination in his favour. In prayer (c), the plaintiff seeks declaration that the alleged Will is illegal, improper and bad in law and not binding upon the plaintiff. Thus, there is a dispute between the plaintiff and defendant No.5 as to who is the legal heir and entitled to the property. Such dispute comes within the Testamentary Jurisdiction of the Court having Ordinary Original Civil Jurisdiction. It is material to note that the Ordinary Original Civil Jurisdiction for the Greater Bombay is with the Bombay High Court itself and it is exercised by the Original Side of the Bombay High Court. 8 6. In the year 1948, the Bombay City Civil Court Act, 1948 was enacted and the Bombay City Civil Court came to be established. The preamble of the Bombay City Civil Court Act reads as follows :- "WHEREAS it is expedient to establish an additional Civil Court for the Greater Bombay; It is hereby enacted as follows:- ...." Thus, the City Civil Court is an additional Civil Court for the Greater Bombay with a limited jurisdiction. Section 3 of the Bombay City Civil Court Act reads as follows :- "3. The State Government may by notification in the Official Gazette, establish for the Greater Bombay a court to be called the Bombay City Civil Court. Notwithstanding anything contained in any law, such court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature arising within the Greater Bombay, except suits or proceedings which are cognizable - (a) by the High Court as a Court of Admiralty or vice-Admiralty or as a Colonial Court of 9 Admiralty, or as a Court having testamentary, intestate or matrimonial Jurisdiction, or (b) by the High Court for the relief of insolvent debtors, or (c) by the High Court under any special law other than the Letters Patent; or (d) by the Small Cause Court: Provided that the State Government may, from time to time, after consultation with the High Court, by a like notification extend the jurisdiction of the City Court to any suits or proceedings which are cognizable by the High Court as a court having testamentary or intestate jurisdiction or for the relief of insolvent debtors." From this, it is clear that the City Civil Court has been delegated a limited jurisdiction to receive, try and dispose of suits and other proceedings of civil nature arising within the Greater Bombay except the suits or the proceedings which are cognizable by the High Court. From clause (a) it is clear that suits which are cognizable by the High Court as a Court of 10 Admiralty or Vice-Admiralty or as a Colonial Court of Admiralty or as a Court having testamentary, intestate or matrimonial Jurisdiction are excluded from the jurisdiction of the City Civil Court. State Government does not appear to have issued any notification extending the jurisdiction of the City Civil Court as a Court having Testamentary or Intestate Jurisdiction. 6A. In the present case, the plaintiff claims that Dr. Gopal Ayengar died intestate and after the death of his widow Rajalakshmi, the plaintiff being the nephew of Dr. Gopal Ayengar, is his legal heir and, therefore, he has right to possess the suit property. On the other hand, respondent no.5 claims title over the property on the basis of some Will allegedly executed by Rajalakshmi. In such circumstances, whether the plaintiff is or is not the legal heir of Dr. Gopal Ayengar can be decided only by Court having testamentary or intestate jurisdiction and that jurisdiction is with the High Court of Bombay and in view of the language of Section 3, the testamentary and intestate jurisdiction is specifically excluded from the jurisdiction of the City Civil Court and therefore the City Civil Court cannot decide a dispute which can be decided only by a Court having testamentary and intestate jurisdiction. This aspect has not been considered by the trial Court. 7. In view of prayer clause (a), as quoted above, 11 the plaintiff cannot be declared to be in lawful possession of the property unless it is declared that he is also the legal heir of Dr. Gopal Ayengar and as such member of the Society. Prayer clause (c) seeks declaration that alleged Will in favour of defendant No.5 is bad in law and not binding. It must be held that in view of prayer clauses (a) and (c), the suit could not be entertained by the City Civil Court and the plaint should have been returned to the plaintiff for filing the same before the Original Side of the Bombay High Court which exercises the testamentary and intestate jurisdiction within the local limits of Greater Bombay. 8. The next question is about pecuniary jurisdiction. It may be noted that prior to the amendment of 1989 a pecuniary jurisdiction of the City Civil Court was not exceeding fifty thousand rupees. Therefore, only suits and proceedings of civil nature valued at not more than Rs.50,000/- could be entertained by the City Civil Court. By the amendment in 1989, the limit of pecuniary jurisdiction was removed. However, that amendment has not been implemented and as a result unlimited pecuniary jurisdiction has not been vested in the City Civil Court as yet and even now the pecuniary jurisdiction of the City Civil Court is limited to Rs.50,000/- only. If the value of the suit or the 12 proceeding is more than Rs.50,000/-, naturally, the City Civil Court cannot entertain the suit. The question is whether in the present suit, the suit can be valued upto Rs.50,000/- only. The plaintiff has not shown the value of the property anywhere in the plaint, while according to the defendants, the value must be more than Rs.60 lacs. Of course, it is difficult to say what would be the exact value of the property at the time of filing suit but it can be determined by appointing a valuer. The valuation of the property becomes material and relevant for the purpose of valuation of the suit for the purpose of jurisdiction as well as payment of Court fee. Section 6(iv)(d) of Bombay Court Fees Act reads as follows :- "(d) In suits for declaration in respect of ownership, or nature of tenancy, title, tenure, right, lease, freedom or exemption from, or non-liability to,attachment with or without sale or other attributes, of immovable property, such as a declaration that certain land is personal property of the Ruler of any former Indian State or public trust property or property of any class or community - one-fourth of advalorem fee leviable for a suit for possession on the basis of title of the subject-matter, subject to a 13 minimum fee of one hundred rupees: Provided that if the question is of attachment with or without sale the amount of fee shall be the ad valorem fee according to the value of the property sought to be protected from attachment with or without sale or the fee [sixty rupees] whichever is less: Provided further that, where the defendant is or class under or through a limited owner, the amount of fee shall be [one-third] of such ad valorem fee, subject to the minimum fee specified above: Provided also that, in any of the cases falling under this clause except its first proviso, when in addition any consequential relief other than possession is sought the amount of fee shall be one-half of ad valorem fee and when the consequential reliefs also sought include a relief for possession the amount of fee shall be the full ad valorem fee;" From this, it is clear that where as suit is filed for declaration in respect of onership or nature of tenancy, 14 title, tenure, right, lease, freedom or exemption from, or non-liability to, attachment with or without sale or other attributes of immovable property, one-fourth of ad valorem fee leviable for a suit for possession on the basis of title of the subject matter, has to be and if any consequential relief other than the possession is sought, the amount of court fee shall be one-half of ad-valorem fee and when the consequential reliefs also include relief of possession, the amount of fee shall be the full ad valorem fee. Entry 1 to Schedule I to the Bombay Court-fees Act prescribes the ad valorem fees and the method of calculations. 9. Learned Counsel for the plaintiff-respondent No.1 vehemently contended that the plaintiff has not claimed declaration of ownership nor he claims possession of the property and therefore, it is not necessary for him to pay ad valorem Court fee. The learned trial Court also observed that as the plaintiff has not claimed the possession, the suit is not susceptible to monetary evaluation and the trial Court accepted the contention of the plaintiff that the suit falls under Section 6(iv)(j) of Bombay Court Fees Act which reads as under :- "(j) In suits where declaration is sought, with 15 or without injunction or other consequential relief and the subject matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by this Act ad valorem fee payable, as if the amount or value of the subject matter was one thousand rupees;" From this, it is clear that only where a declaration was sought, with or without injunction or other consequential relief and the subject matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided by this Act, ad valorem fee shall be payable as if the value of the subject matter was one thousand rupees. 10. Admittedly, in the present case, the suit pertains to the right to possess a bungalow situated within Mumbai City. It is impossible to believe that the bungalow is not susceptible of monetary evaluation. If the contention of the plaintiff would be that the defendants, without any legal right or title, were interfering in his possession or that they wanted to dispossess him without following procedure of law, it could be said that the claim in the suit is not susceptible of monetary evaluation. However, in the present case, the plaintiff seeks declaration that he is 16 entitled to possess suit house as a legal heir of the original owner Dr. Gopal Ayengar. With this declaration, he also seeks certain consequential reliefs in the nature perpetual injunction, etc. Section 6(iv)d) does not provide for suit for declaration in respect of ownership only. It deals with the declaration of different types of claims and rights in respect of immovable property and in the present case, the plaintiff claims the legal right to possess the immovable property as an heir of the original owner and therefore, the case must fall under clause (d). Because he is seeking declaration with consequential reliefs, he will be required to pay half of the ad valorem fee. It is impossible to believe that such a claim is not susceptible of monetary evaluation. Clause (j) would be applicable only if the dispute is not susceptible to monetary evaluation and also if otherwise there is no provision for payment of Court fee in respect of such dispute. As the dispute in the present case is susceptible of monetary evaluation and it is also specifically provided for in clause (d) of Section 6(iv), it must be held that Section 6(iv)(j) has no application and the suit has to be valued for the purpose of court fee under Section 6(iv)(d). Naturally the valuation for the Court fee and the valuation for pecuniary jurisdiction will be same. I refrain myself 17 from entering into the question as to what is the value of the property because that question has not been addressed to by the trial Court. Naturally, the trial Court will have to enter into an enquiry as to the valuation of the suit as provided in Sections 8 to 14 of the Bombay Court-fees Act. 11. The learned Counsel for the plaintiff-respondent relied upon Vrindavan (Borivali) Co-operative Housing Vrindavan (Borivali) Co-operative Housing Vrindavan (Borivali) Co-operative Housing Society Limited vs. M/s. Karmarkar Brothers and others Society Limited vs. M/s. Karmarkar Brothers and others Society Limited vs. M/s. Karmarkar Brothers and others 1983(2) Bom.C.R.267 1983(2) Bom.C.R.267 1983(2) Bom.C.R.267 and Maria Philomina Pereira vs. Maria Philomina Pereira vs. Maria Philomina Pereira vs. M/s. Rodrigues Construction 1990(2) Bom.C.R.77 M/s. Rodrigues Construction 1990(2) Bom.C.R.77 M/s. Rodrigues Construction 1990(2) Bom.C.R.77 in support of his contention that suit has to be notionally valued under section 6(iv)(j). However,both these cases are not applicable to the facts of the present case because they were against the builder who was obliged to fulfill his statutory responsibilities under the provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. 12. For the aforesaid reasons, the Appeal is allowed. The impugned order is hereby set aside. It is hereby held that in view of prayer clause (a), the suit has to be valued for the purpose of pecuniary jurisdiction and the Court fee under section 6(iv)(d) 18 and in view of prayer clauses (a) and (c), the City Civil Court does not have jurisdiction over the subject matter because the testamentary or intestate jurisdiction is with the Original Side of the Bombay High Court. 13. At this stage, the learned Counsel for the plaintiff makes a request seeking liberty to amend the prayer clauses so as to bring the suit within the jurisdiction of the City Civil Court. Leave to amend granted. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)