- 1 - sa250 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION SECOND APPEAL NO. 250 OF 2010 Smt Indubai J.Patil .. Appellant vs Shri Bapusaheb P.Patl & ors .. Respondents Mr.A.M.Kulkarni for Appellant Mr.R.R.Bhonsale for Respondents CORAM: GIRISH GODBOLE, J DATE: 8 July 2011 P.C. Heard Mr.A.M.Kulkarni for the Appellant and Mr.R.R.Bhonsale for the Respondents. 1. In this Appeal, following order was passed on 17.6.2011. 2. The Appellant is original Plaintiff in Special Civil Suit No.60 of 1999 which was filed in the Court of Ld.Civil Judge, Senior Division, Sangli for partition and separate possession. 3. Perusal of the plaint in the suit shows that the Appellant had valued the suit for the purpose of jurisdiction at Rs. 1,00,000/- + Rs.1,00,000/- + Rs.400/-. This aspect is also clear from the perusal - 2 - sa250 of the discussion made in paragraph 23 of the Judgment of the learned Joint Civil Judge,Senior Division, Sangli dated 23rd February 2006 in the suit. The Defendants filed Regular Civil Appeal No.92 of 2006 in the District Court at Sangli which has been allowed by the learned District Judge Sangli by impugned Judgment and Decree dated 16th June 2009. The learned Judge of the Appellate court has held that the Plaintiff ought to have valued the suit under Section 6 (ii) (wrongly referred as Rule 6 (ii) in the impugned judgment) of the Bombay Court Fees Act, 1959. 3. Considering the provisions of Section 26 of the Bombay Civil Courts Act, 1869 prima facie the First Appeal against Judgment of the Trial Court could not have been entertained by the District Court since the value of the subject matter exceeds Rs.2,00,000/-. Though the question regarding pecuniary jurisdiction of the District Court to entertain the appeal does not appear to have been raised by the original Plaintiff/Appellant, since it is a question of jurisdiction and maintainability of the Appeal before the District Court, the same will have to be considered at the earliest possible time. 5. Mr.Bhosale, learned counsel for the Respondents seeks an adjournment for one week to consider the aforesaid aspect. S.O. to 24 th June, 2011. 2. The Advocates for the parties do not dispute that for the purpose of jurisdiction Special Civil Suit no.670 of 1999 was valued at Rs.2,00,400/-. The Appeal was therefore wrongly filed in the District court at Sangli and should have been filed in the - 3 - sa250 High Court. It is thus seen that the District Court did not have the jurisdiction to try and entertain the Appeal. Hence, only on this ground and not on merits of the controversy, Second Appeal deserves to be allowed. Following substantial questions of law is framed: 1. Whether the District Court at Sangli had the jurisdiction to try and entertain Regular Civil Appeal No.92 of 2006 arising out of Special Civil Suit No.60 of 1999 which was valued at Rs.2,00,400/- for the purpose of jurisdiction and whether the District Judge, Sangli has overlooked the provisions of section 26 of the Bombay Civil Courts Act, 1869. 3. After hearing Advocates on the aforesaid question, it is clear that the District Court did not have jurisdiction to try and entertain the Appeal. Hence, Second Appeal is allowed. The impugned Judgment and Order dated 16.6.2009 passed by the Ld.District Judge-3 Sangli in Regular Civil Appeal No.92 of 2006 is quashed and set aside only on the ground that the District Court did not have the pecuniary jurisdiction to try and entertain the said Appeal. Regular Civil Appeal No.92 of 2006 shall now be restored to file. The District Court,Sangli is directed to return the memo of the - 4 - sa250 said Appeal along with certified copies and other papers to the Appellants in the said Appeal who are Respondents in the present Second appeal so as to enable them to lodge the said Appeal in this Court as a First Appeal under section 96 of the Code of Civil Procedure, 1908. Parties agree to appear before the District Court Sangli on 22.7.2011 for returning of the memo of Appeal in Regular Civil Appeal No.92 of 2006. 4. The Registrar (Judicial) is directed to send a copy of this order to the District Court, Sangli forthwith and in any case so as to ensure that the same is received in the District Court on or before 20.7.2011. Since Appeal filed by the Respondents in the District Court was within limitation, after the memo of Appeal is returned for presentation in the High Court, if the same is lodged within one month on return of the memo, objection regarding limitation shall not be raised in such First Appeal which will be treated as having been filed within limitation. 5. Second Appeal disposed of with aforesaid - 5 - sa250 directions with no order as to costs. GIRISH GODBOLE, J