:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE WRIT PETITION NO.5768 OF 2008 WRIT PETITION NO.5768 OF 2008 WRIT PETITION NO.5768 OF 2008 WITH WITH WITH WRIT PETITION NO.5950 OF 200 WRIT PETITION NO.5950 OF 200 WRIT PETITION NO.5950 OF 2008 Shri Mohandas Karamchandani ...Petitioner. v. Shri Haresh Pribhdas Bhojwani & Anr. ...Respondents. Mr.P.D.Dalvi , adv. for the Petitioner. Mr.Girish R. Agrawal , adv. for the Respondent No.1. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 25th November, 2008. DATE: 25th November, 2008. DATE: 25th November, 2008. P.C. P.C. P.C. 1. Both these petitions are filed by the original defendant no.2. In the Writ Petition no.5768 of 2008, the petitioner has challenged the order passed by the trial Court granting application of the plaintiff/respondent to make an amendment in the plaint and in the writ petition no.5950 of 2008, the petitioner has challenged the rejection of application Exhibit 87 filed by him under Section 9-A of the Civil Procedure Code as applicable to the State of Maharashtra, whereby he had made a prayer to the trial Court to treat the question of jurisdiction as a preliminary issue. 2. To state in brief, it is the case of the plaintiff/respondent no.1 that he is the owner of the suit flat situated within the city of Ulhasnagar. Flat :2: was in occupation of his licensee Mr.Parmanand Rohra till 12.2.2006. Mr.Rohra vacated the premises and handed over the possession of the same to the plaintiff on 12-2-2006. According to the plaintiff, he was apprehending that the defendant no.2, in conspiracy with the defendant no.1, would try to take forcible possession and, therefore, on 15-2-2006 he filed regular civil suit no.50 of 2006 wherein he sought declaration that the defendants have no right, title or interest in the suit flat and he also sought perpetual injunction restraining the defendants from interfering in or disturbing the possession of the plaintiff over the suit flat. On the same day on 15-2-2006, on his application, Exhibit 5 for temporary injunction of the same nature, the trial Court directed the parties to maintain status-quo and issued a show-cause notice to the defendants returnable on 23-2-2006. The plaintiff filed an application for amendment on 26th February, 2008. Plaintiff made an application for amendment in the plaint wherein he sought to plead the events which had taken place after the status-quo order and also that in violation thereof, defendant no.2 had taken possession of the flat. He also sought to add two prayer clauses being prayer clauses (dd) and (ddd). Prayer clause (dd) reads as follows: "(dd) Grant Mandatory Injunction directing the Defendant No.2 to quit, vacate and give the :3: possession of the Suit Flat to the Plaintiff forthwith." Amendment application was opposed by the defendant no.2. However, after hearing the parties, the trial Court passed the order dated 14-3-2008 and granted leave to amend and accordingly, the plaintiff carried out amendment. 3. After the said amendment, defendant no.2 filed an application Exhibit 87 under Section 9-A read with Order VII Rule 9 of the Civil Procedure Code. According to him, after making an amendment in the plaint, plaintiff was infact seeking possession of the suit property and value of which was about 8 lacs and, therefore, the ad-valorem Court fee has to be paid, which the plaintiff had not paid. Further, it was contended that the Civil Judge Junior Division, Ulhasnagar has no pecuniary jurisdiction to entertain the suit for possession worth Rs.8 lacs. After hearing the parties, the trial Court rejected the application. 4. Heard the learned counsel for both the parties. There is no dispute that on 15-2-2006, the trial Court had passed the order directing the parties to maintain status-quo. According to the plaintiff after service of :4: the order, the defendant committed breach of that order by breaking open lock of the flat and taking forcible possession. By making an amendment, he wanted to bring this fact on record. He also pointed out that he has filed an application for taking penal action under Order 39 Rule 2(A) read with Section 151 of the Civil Procedure Code for contempt of the Court. By making an amendment, he was infact seeking restoration of the property to the same status as it was at the time of passing the status-quo order. These contentions are true or false have to be decided after recording the evidence of both the parties before the concerned Court. In view of the circumstances, no fault could be found in the order whereby the trial Court had granted application for amendment of the plaint. 5. Mr.Dalvi the learned counsel for the petitioner vehemently argued that the question of valuation and jurisdiction should be decided as preliminary issue because if the value of the property is more than pecuniary jurisdiction of the trial Court, the civil Court will have no jurisdiction to entertain the suit and on that ground, the suit is liable to be dismissed or returned to the plaintiff for presentation before the proper authority after making proper valuation and payment of the Court fee as per the law. The trial Court noted that by making amendment to the plaint, plaintiff is not seeking any relief, which requires him :5: to value the suit as per the market value of suit property, as he is seeking relief of mandatory injunction to restore the status quo ante. Whether at the time of institution of suit, plaintiff was actually in possession of the suit flat or not is material to decide the jurisdiction as well as Court fee. According to the trial Court this requires recording of evidence of both the parties and that can be done at the time of final stage of the hearing of the suit and the issue being a mixed issue of fact and law can not be decided as a preliminary issue. 6. There can be no doubt that if the plaintiff was in possession on the date of filing of the suit and at the time of passing the order of status-quo and if that status-quo order was violated by the defendant after service of the order, the Court will have to take action against the defendant for restoration of status quo. Defendant could not be allowed to unilaterally violate and commit breach of that order and then object to the jurisdiction of the Court, which had passed that order. There can also be no dispute that the Civil Judge Junior Division has territorial as well as pecuniary jurisdiction to entertain the suit for declaration and the injunction as sought. Initially, if the plaintiff was not in possession at the time of filing of the suit or if the plaintiff had lost possession before any order or status-quo was passed by the trial Court in his :6: favour, he would be required to amend the plaint for possession of the property and then suit would be required to be valued for the purpose of Court fee as well as the jurisdiction as per the market value of the property. But if he was in possession and he was forcibly dispossessed after service of the status-quo order, jurisdiction of the trial Court can not be taken away because the Court can compel the defendant to restore the property to the plaintiff. However, whether the plaintiff was in possession at the time of filing the suit and till service of the status-quo order on the defendant or he was not in possession even at the time of filing the suit, can be decided only after recording of evidence of both the parties. For this purpose, full fledged trial will have to be taken up. Therefore, in my opinion, the trial Court was right in observing that it is a mixed question of fact and law and that this question can not be decided as the preliminary issue. The issue will have to be decided only at the time of final hearing of the suit. If the plaintiff fails to prove his possession on the date of filing of the suit, he will take risk of dismissal of the suit and all the consequences. 7. In view of the facts noted above, there is no substance in the petitions and as a result, both the petitions stand dismissed. :7: (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)