1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.246 OF 2009 WITH CIVIL APPLICATION NO.282 OF 2009 Mehmood Ahmed Nzir Ahmed Khan : Appellant versus Vazir Ahmed Nazir Ahmed Khan & ors. : Respondents. Shri Anil C Singh i/by Shri D R Shah for the Appellant. Ms.R C Michani for the Respondent No1. Ms.Hunda H Diamondwala i/by M/s.Divya Shah Associates for the Respondent Nos. 2 to 5. CORAM : R.M.SAVANT, J. DATED : MARCH 20, 2009 P.C. 1. This Appeal, filed by the original Plaintiff, takes exception to the order dated 5th January 2009 passed by the learned Judge of the Civil Civil Court, Bombay by which order the learned Judge has held that the City Civil Court, Bombay has no inherent and pecuniary jurisdiction to try and entertain the suit and plaint is returned for 2 proper presentation. 2. The Plaintiff has filed S C Suit No.809 of 2008 for declaration of his tenancy rights as well as ownership to the extent of 50% in respect of the suit premises. The Plaintiff moved a Notice of Motion for interim relief. The Defendant No.1 has challenged the jurisdiction of the City Civil Court, Bombay on two counts, firstly the matter pertains to tenancy and secondly that the suit is not properly valued. In view thereof, the trial Court, considering the mandate of Section 9A of the Code of Civil Procedure framed the following preliminary issue; “Whether this Court has jurisdiction to try and entertain the suit?” and answered it in the negative. 3. It was the case of the Plaintiff in the said suit that the Plaintiff's father Nazir Ahmed was running a motor garage in the suit 3 premises approximately admeasuring 400 sq.ft and that he was paying rent at the rate of Rs.121/- per moth to the owner till the death of his father which occurred in 1973. It is the case of the Plaintiff that his father was solely carrying the garage business in the suit premises in the capacity of tenant. Since the Plaintiff was minor at the time of the death of his father, the Defendant No.1, who is his brother and, who was grown up at the relevant time, continued the garage business in tenanted premises. It is the case of the Plaintiff that at the time of his father's death, Plaintiff, Defendant No.1 and their mother were living jointly. It is the case of the Plaintiff that original landlord P T Rajpal sold the entire property to Defendant No.2, who is the developer and builder. The Defendant No.1 negotiated with the new landlord i.e. the Defendant No.2, behind the back of the Plaintiff and in pursuance of such negotiations surrendered the tenanted premises to the landlord for the purpose of redevelopment. It is the case of the Plaintiff that the Defendant No.1 temporarily shifted to the transit camp and later on the Defendant No.1 acquired the new premises on ownership basis in the redeveloped building from the Defendant 4 No.2. It is the case of the Plaintiff that since the original tenant was his father, after his demise, the Plaintiff became the joint tenant of the erstwhile tenanted premises and the new tenement was given to the Defendant No.1 in the redeveloped property is only because there were the pre existing tenancy rights of their family. Since the Defendant No.1 has denied the Plaintiff's right in the suit premises, the Plaintiff prayed for declaration that he is entitled to have right, title and interest in respect of newly allotted suit premises including tenancy rights. The Plaintiff has further prayed for declaration that he is the co-owner in respect of new premises to the extent of 50% undivided share. 4. On behalf of the Defendants, it is contended in the suit that since the Plaintiff is claiming declaration of his tenancy rights, in view of Section 33 of the Maharashtra Rent Control Act, the City Civil Court has no jurisdiction. According to Defendant No.1, the Plaintiff' s right is in respect of declaration of tenancy, for which the Small Causes Court of Mumbai is the competent Court. It was further the case of 5 the Defendant No.1 that the Plaintiff is claiming ownership in newly allotted premises, therefore, he has to value the subject matter as per the market price and, therefore, the City Civil Court would have no jurisdiction since its pecuniary jurisdiction is limited to the extent of Rs.50,000/- only. 5. It would be pertinent to note that it is the case of the Plaintiff that his father was the original tenant of the suit premises as per Section 7(15) of the Maharashtra Rent Control Act, 1999, the heirs of deceased would succeed to the tenancy as joint tenant and in view of Section 33 (1)(b) of the Maharashtra Rent Control Act, since the question of tenancy arises from a fair reading of the Plaint, the Courts specified under Section 33 of the Maharashtra Rent Control Act would have exclusive jurisdiction. Since the genesis of the matter is as to whether the Plaintiff is entitled for tenancy rights, on which basis the Plaintiff claims right, title and interest in the newly allotted tenement in the reconstructed building and since the suit is between the Plaintiff and his brother who is a joint tenant and, the landlord, therefore, in my 6 view, the Civil Civil Court would have no jurisdiction by virtue of Section 33 of the Maharashtra Rent Control Act. In view of the fact that the Plaintiff is alternatively claiming ownership to the extent of 50% share in the newly allotted premises, the subject matter of the suit would be governed by Section 6(iv)(d) of the Bombay Court Fees Act, 1959 and therefore the residuary provision of Section 6(4)(j) of the said Act would not be applicable. Since the suit premises are susceptible of monetary evalution, therefore, as per sub-clause 4(d), the Plaintiff has to pay 1/4th of ad-valorem fee leviable for such a suit. Therefore in my view, the trial Court was right in holding that in Mumbai the price of a garage admeasuring 200 sq.ft is much more than pecuniary limits of the City Civil Court. 6. Having considered the pleadings in the plaint as well as the reliefs sought for in the said suit and having considered the reasons cited by the trial Court whilst passing the impugned order, in my view, no case for interference in the above Appeal is made out. 7 7. The above Appeal is accordingly dismissed. 8. In view of the dismissal of the above Appeal, the Civil Application No.282 of 2009 does not survive and the same is accordingly disposed of. [R.M.SAVANT, J]