1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 613 OF 2008 IN S.C.SUIT NO. 2356 OF 2007 A L O N G W I T H CIVL APPLICATION NO. 711 OF 2008 IN APPEAL FROM ORDER NO. 613 OF 2008 IN S.C.SUIT NO. 2356 OF 2007 Mrs.Mohini Dolatram Chhabria and Ors. .......Appellants Verus Mr.Shamlal Tikamdas Chhabria and Ors. ........Respondents Mr.N.P.Pandit with Mr.Trupty M.Kapadia i/by. Joy Legal & Consultants advocate for appellants. Mr.Chirag Balsara i/by. M/s.Daru Shah & Co., advocate for respondents no.1 and 2. Coram: Smt.R.P.SondurBaldota, J. Dated : 11 th August, 2008. P.C. : 1. This appeal is preferred against the order dated 5th May, 2008 by which the Bombay City Civil court returned the plaint to the appellant for presentation to the proper court on the ground that it does not have pecuniary jurisdiction to entertain and try the suit on its proper valuation. 2. Appellant no.1 and respondent no.1, who are the relatives, are the 2 co-owners of Flat no.31-B, Sterling Apartments, Peddar Road, Mumbai. The Flat admeasures 2400 sq.ft and consists of four bedrooms, one hall, one servants quarters and a kitchen. Appellants no.2 and 3 are the son and daughter-in-law of appellant no.1. Respondent no.2 is the wife of respondent no.1. It is the appellants case that by virtue of an oral family arrangement, they are entitled to exclusively occupy three out of the four bedrooms whereas, the respondents are entitled to exclusively occupy only the fourth bedroom. The balance portion of the flat is agreed to be in common use. The appellants have annexed a rough sketch of the flat to the plaint which marks one of the bedrooms by letter `X' indicating the same as the disputed bedroom. The respondents deny the family arrangement. With the above claim, the relief sought at prayer clause (a) of the plaint, is of a declaration that the appellants are exclusively entitled to possess, use and occupy three bedrooms including the room marked `X' on the sketch and entitled to joint use of the hall, kitchen and servants quarters without any obstruction from the respondents. The relief of injunction sought at prayer clause (b) of the plaint is however extended to the entire flat by seeking a permanent injunction to restrain the respondents from in any manner disturbing or obstructing the possession, use and occupation of the flat by them and their family members. 3. The plaint neither mentions the provision of the Court Fees Act under which the suit is valued nor the valuation made by the appellants. The 3 averments as regards the valuation of the suit are found at para-15 of the plaint. It is stated therein that the suit is filed for declaration and injunction and appropriate court fees have paid under the Bombay Court fees Act (hereinafter referred to as the `Court Fees Act' ). Since the respondents challenged the valuation of the suit and pecuniary jurisdiction of the court dependent upon it, the Bombay City Civil and Sessions Court framed a preliminary issue as regards its pecuniary jurisdiction and decided the same by the impugned order. 4. Though the plaint is silent regarding all the particulars of the valuation, the court fees actually paid by the appellant is by valuing the suit under Section 6(iv)(j) of the Court Fees Act. The respondents contend that such a valuation is incorrect. According to them, it cannot be said that the subject matter of the suit is not susceptible of monetary valuation and the suit ought to have been valued either under Section 6(iv)(d) or under article 7 of schedule-I to the Court Fees Act. By the impugned order, the Bombay City Civil Court accepted the contention of the respondents and directed that the suit be valued under Section 6(iv)(d) of the Court Fees Act. On such valuation, the suit goes beyond the pecuniary jurisdiction of that court. Therefore, the plaint is directed to be returned to the appellants for presentation to the proper court. 5. In the impugned order, the learned Judge observes that by virtue of the oral family arrangements, the appellants have come with a case of having a 4 right to exclusively possess three Bedrooms. The dispute centers around the bedroom marked `X' in the suit plan. The possession is of nine points in law. The right to possess has been independently recognised. Since, the suit is for declaration in respect of the right to possess the bedroom marked `X' , the suit is governed by Section 6(iv)(d) of the Court Fees Act. It has been further observed that the subject matter of the suit viz. right to possess the bedroom marked `X' is nothing but one of the attributes of immovable property. The said bedroom being susceptible of monetary valuation, it cannot be said that the suit is governed by Section 6(iv)(j) of the Court Fees Act. 6. For the sake of convenience, the provisions of Section 6(iv)(j) under which the suit is valued, Section 6(iv)(d) under which it is directed to be valued and article 7 schedule-I which according to the respondents are relevant, are reproduced below :- 6.(iv)(j) In suits, where declaration is sought, with out 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;]] 6.(iv)(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 ad valorem fee leviable for a suit for possession on the basis of title of the subject matter, subject to a minimum fee of [one 5 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; SCHEDULE-I Ad-valorem fees Number (1) ........ (2) Proper Fee (3) 7. Any other plaint, application or petition (including memorandum of Appeal), to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss, including cases wherein application or petition is either treated as a plaint or is described as the mode of obtaining the relief as aforesaid. ......... A fee on the amount of the monetary gain, or loss to be prevented, according to the scale prescribed under Article 1. 7. Section 6(iv)(j) is a residuary provision. It applies only when a suit does not fall under any other specific provision. Since the suit has been valued under Section 6(iv)(j) of the Court Fees Act and since according to the respondents, the suit ought to have been valued under Section 6(iv)(d) of the 6 Court Fees Act, the aspects that fall for consideration in the instant appeal are that, (i) what is the subject matter of the suit, (ii) whether the subject matter of the suit is susceptible to monetary valuation and (iii) whether it is otherwise provided for under the Act. 8. Mr.Pandit, the learned counsel for the appellant, relying upon a decision of this court in the case of Madhukar Abaji Kalbande and Ors. V/s. Mangalchand Mannalal Agrawal and Ors. reported in 1988 Mh.L.J. page 558 submits that the Court Fees Act is a taxing statute and it is a settled legal position that its provisions have to be construed strictly in favour of the subject. There can be no dispute as regards this proposition. Therefore, the decision cited by Mr.Pandit need not be considered any further. 9. There is no dispute that the subject matter of the suit, i.e., the right to possess the bedroom marked `X' to the exclusion of the respondents. Mr.Pandit submits that, however the learned judge has erred in holding that right to possess the bedroom is nothing but one of the attributes of immovable property, which is susceptible of monetary valuation. According to Mr.Pandit, if one reads the provision of Section 6(iv)(d) the term “other attributes” cannot be taken as an independent head of types of suits. The term “other attributes” must be read alongwith “freedom or exemption from or non-liability to attachment with or without sale”. He argues that the provision of Section 6(iv) (d) refers to different types of suit for declaration i.e. a suit for declaration of ownership, of nature of tenancy, of title of tenure, of right to lease etc. of 7 immovable property. After the every description of the nature of the suit, there is comma separating the next description. He points out that there is no comma separating “other attributes” from “attachment with or without sale”. Therefore, according to Mr.Pandit, the words “attachment with or without sale” or “other attributes” is description of the same nature of declaratory suit. In this context, he relies upon a decision of our High Court in the case of Shivlal Khupchand Shop V/s.Trimbak Kashinath Raktate and Ors. reported in A.I.R. 1976 Bom page 226. The said decision arose out of a Suit under Order 21 Rule 63 Civil Procedure Code by an unsuccessful attaching creditor to set aside an order under Order 21 Rule 60 Civil Procedure Code. Section 6(iv)(d) of the Court Fees Act makes provision only for freedom or exemption from or non- liability to attachment with or without sale of immovable property. It does not provide for “liability to be attached” in execution of a decree. Therefore, it was sought to be argued before the Division Bench of our High Court that the suit was for declaration of other attributes of immovable property. The Division Bench rejected the argument with the following observations : “15..........Attribute has been defined in the Concise Oxford Dictionary as “Quality ascribed to anything; material object recognized as appropriate to person or office; characteristic quality;” Liability to be attached in execution of a decree, therefore, could not be said to be an attribute of the property. In fact if the expression “attribute of the property” were to mean or include its liability for attachment, the Legislature could not have used the expression “non-liability to attachment”, in Section 6(iv)(d) of the Act, since the expression “liability”, by necessary implication would have included non-liability as well, if that were an 8 attribute of the property. I am, therefore, of the view that Section 6(iv)(d) is not applicable to a suit of the instant type.” 10. From the above observations, it is clear that, the decision does not help Mr.Pandit in his argument that the words “other attributes of immovable property” should be attached only to “attachment with or without sale” from the said provision and not separated from the same. “Other attributes of immovable property” in Section 6(iv)(j) is patently a residuary clause, independent of the earlier descriptions of the suits concerning exemption from or non-liability to attachment. In any case, the declaration sought by the appellants is of a right to exclusively possess a portion of the immovable property which can be susceptible of monetary valuation either directly under Section 6(iv)(d) of the Court Fees Act or under article 7 schedule-I of the loss sought to be prevented by the relief of declaration. 11. It is next contended by Mr.Pandit that the subject matter of the suit cannot be said to be susceptible of monetary valuation. He seeks to draw a parallel from the decision of this court in the case of Art Commercia Advertising Pvt.Ltd, Bombay and Ors. V/s.Vicco Laboratories, Bombay and anr. reported in A.I.R. 1990 Bom.page 123. In that case, a suit was filed for declaration that the plaintiffs are exclusively entitled to use of title and format of certain T.V. serial and relief of injunction restraining the defendants from using that title for any third party. The plaint specifically asserted the plaintiffs ownership of 9 the serial and exclusive right to use the title. While considering the question of valuation of that suit, it was held that the claim made by the plaintiff over the claim of ownership of serial, title and format relates not only to the serial already produced, but also to any part of the episode so far produced and even the future episodes which would be produced under the same title. The plaintiff had significantly not asked for any of the items like return of the Master cassette, copy rights, cassettes themselves or damages, nor any monetary claim. Therefore, the court held that the real nature of the suit had nothing to do with the copy rights but it was the dispute out and out to meet the prospective threat to the title for which declaration was sought and the other relief in the shape of injunction, was only by way of consequential relief which is permitted to be annexed to the main relief of declaration. With this inference, the court accepted the contention of the plaintiff that valuation of the suit made under Section 6(iv)(j) was correct and it was not required to be valued under Section 6(iv)(b) of the Court Fees Act. In my considered opinion, it is not possible to draw any parallel between the decision cited by Mr.Pandit and the present case. This is because of the difference between the language of Section 6(iv)(b) and Section 6(iv)(d). Section 6(iv)(b) relates to recovery of immovable property alone (emphasis supplied). Therefore, in the decision relied upon by Mr.Pandit what was found to be of relevance was that the plaintiff had not sought for return of the Master cassette, copy right, 10 cassettes themselves or damages etc. The provision under Section 6(iv)(d) differs in that regard from the provision under Section 6(iv)(b). It is not limited to recovery of immovable property, instead, it takes into its compass several types of suits concerning different rights in respect of the immovable property. 12. The subject matter of the instant suit, the right to possess immovable property cannot be said to be non susceptible of monetary valuation. Section 6 (iv)(d) of Court Fees Act specifically provides for such types of suit and hence the residuary provision of Section 6(iv)(j) cannot be pressed in service. In these circumstances, no fault can be found with the impugned order. The plaint has been rightly returned to the plaintiff for presentation to the proper court. Hence, the Appeal from order is dismissed. 13. As the appeal from order is disposed off, the Civil Application does not survive and the same is also disposed off accordingly. 14. Mr.Pandit makes an application for continuation of the interim orders passed in the appeal for a reasonable period. The application is opposed by the respondents. Considering the facts and circumstances of the case, interim orders are extended for a period of six weeks from today. [Smt.R.P.SondurBaldota, J] 11