* 1 * CRA-23/2006 24.9.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 23 OF 2006 Shri. Laxmichand D. Gala and Ors. .......Applicants V/S. Shri. Sanjay Mahadeo Sawant and Ors. .........Respondents * * * * * * Mr. J.M. Puranik, Advocate for the applicants Mr. A.A. Garge, Advocate for the respondents no.1 to 7. Coram : Smt. R.P. SondurBaldota, J. 24 September, 2010. P.C. : 1. This Revision Application arises out of the order dated 23rd December, 2005 passed by the Civil Judge Junior Division, Ulhasnagar deciding preliminary issue relating to the pecuniary * 2 * CRA-23/2006 24.9.2010 jurisdiction to try the suit filed by the respondents. By the impugned order, the court answered the issue as regards its pecuniary jurisdiction in the affirmative and rejected the application filed by the revision applicant at Exhibit-16. 2. The respondents have filed Regular Civil Suit No. 125 of 2004 seeking a declaration that the development agreement dated 1 “ st July 1991 and Power of Attorney dated 1st July 1991 between the plaintiffs and defendants is bad in law, illegal and void-ab-initio and not binding on the plaintiffs”. The respondents also seek a permanent injunction restraining the applicants from proceeding with the work of construction on the land and/or creating any third party rights over the same. The averments as regards the valuation of the suit for the purpose of payment of court fees and jurisdiction are at paragraph-13 of the plaint. The respondents have simply valued the suit under Section 6(iv)(j) of the Bombay Court Fees Act on the ground that the subject matter of the suit is not susceptible of monetary valuation. The trial court by the impugned judgment and order has accepted this valuation to hold that it has pecuniary jurisdiction to entertain and try the suit. * 3 * CRA-23/2006 24.9.2010 3. Mr. Puranik, the learned counsel for the applicant submits that perusal of the development agreement which is sought to be avoided by the respondents refers to the consideration of Rs. 8,75,000/-. It also provides for the manner in which consideration is to be paid. In that circumstance, according to him it cannot be said that the subject matter of the suit is not susceptible of monetary valuation. 4. Mr. Garge, the learned counsel for the respondents, on the other hand has vehemently argued in support of the impugned judgment and order submitting that since the respondents are neither seeking declaration of their title to the property under the agreement nor for its possession, they have correctly valued the suit. 5. For the purpose of deciding the question of jurisdiction of the court to entertain and try the suit, the averments made in the plaint alone are required to be looked into. Perusal of the pleadings in the suit shows that what the respondents are seeking is to avoid the agreement of sale entered into by them with the revision applicant which is titled as Development Agreement”. Such a suit “ can by no stretch of imagination be said to be a suit, subject matter * 4 * CRA-23/2006 24.9.2010 of which is incapable of monetary valuation and hence it cannot fall under Section 6(iv)(j) of the Bombay Court Fees Act. Mr. Puranik, relying upon the decision of the learned single judge of this court in the case of Abdul Gaffar s/o. Abdul Samad V/s. Niranjan Kumar s/o. Ramnath Prasad Dwivedi and Ors. reported in 2005(3) ALL MR page 179, submits that such a suit would be covered by Section 6(iv) (ha) of the Bombay Court Fees Act. The said provision reads as under : “(ha) for avoidance of sale, contract for sale, etc. In suits for declaration that any sale, or contract for sale or termination of contract for sale of any movable or immovable property is void – (one half) of ad valorem fee leviable on the value of the property.” 6. The suit by the respondents is essentially for avoidance of the contract of sale dated 1st July 1991. Though the contract is titled as Development Agreement, Clause-1 thereof is for sale of the property for the consideration of Rs.8,75,000/-. Clause-7 of the agreement provides for conveyance of the suit property by the respondents on completion of sale. Therefore, the suit is clearly for avoiding an * 5 * CRA-23/2006 24.9.2010 agreement of sale and the same will be covered by Section 6(iv)(ha) of the Bombay Court Fees Act. It is patent from the impugned order that the learned trial judge has not looked into the agreement which is sought to be avoided by the respondents by filing the suit herein. If he were to go through the agreement, he would have realised that the agreement was infact for sale of the property. In the circumstances, the Revision Application is allowed. The impugned judgment and order dated 23rd December, 2005 is set aside. The preliminary issue as regards the pecuniary jurisdiction of the court is answered in the affirmative. It is held that the court of Civil Judge Junior Division, Ulhasnagar has no pecuniary jurisdiction to entertain and try Regular Civil Suit No. 125 of 2004. The plaint be returned to the respondents for presentation to the proper court within a period of six weeks from today. [Smt. R.P. SondurBaldota, J]