1 AO 1104 OF 2004 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1104 OF 2004 1. Domnic Lawrence Fonseca (since deceased) 2. Rocky Lawrence Fonseca 2A. Regina Clifford Fonseca 2B. Clayson Clifford Fonseca, minor 2C. Refellic Clifford Fonseca, Minor. All residing at House No.26, Irla Gaothan, village Parle (W), Mumbai. .. Appellants -versus 1.Byimraj Bhagwanji Shah 1 (a). Shri. Narendra B. Shah 1 (b) Shri.Nirmal B. Shah. 1( c) Shri.Ashok B. Shah, 1 (d) Smt.Shakuntala H Sanghvi,. 1 (e) Smt. Pushpa Mithalal Jain. 1 (f) Garishma Anil Shah, All residing at: 52/54, V.V. Chandan Street, Babu Bhavan, 4th floor, Vagadi Mumbai 400 003. Defendant Nos 2 to 5 deleted 6. Manek Enterprises, partnership firm 2 AO 1104 OF 2004 8, Alli Chambers, 1st floor, Tamrind Lane, Fort, Mumbai 400 023. .. Respondents. Mr. K. P. Mali, h/f R.A. Thorat, for the Appellants Mr. P.G. Karande for Respondent Nos 1(a) to 1(f) CORAM: A. S. OKA, J. DATED: 3rd May, 2011 JUDGMENT 1. Called out for final hearing. 2. Heard learned counsel appearing for the parties. 3. Appellants are the original plaintiffs and the respondents are the defendants. 4. By the impugned order, the learned trial Judge held that if the suit filed by the appellant was properly valued, the City Civil Court, will not have pecuniary jurisdiction to entertain the suit. Therefore, the learned trial Judge directed the return of the plaint. Learned trial Judge also directed that the deficit Court Fees on a sum of Rs.49,601/- shall be paid on or before 30th November, 2004 failing which the plaint will stand rejected. 5. Learned counsel appearing for the appellant has taken the Court through the plaint. He submitted that prayer (b) is the substantive prayer by which mandatory injunction is sought enjoining the first respondent to dismantle the 3 AO 1104 OF 2004 incomplete construction carried out by him on the suit plot. He submitted that as found by the trial Court even the appellant accepted that the said relief will have to be valued at Rs. 49,601/-. He pointed out that even the trial Court has recorded a finding that the prayer (b) will have to be valued at Rs.49,601/-. He submitted that as far as prayer (a) is concerned, the subject matter is not susceptible to monetary evaluation and therefore clause (j) of section 6(iv) of the Bombay Court Fees Act, 1959 (hereinafter referred to be as “the said Act”) will apply. He submitted that the learned trial Judge has committed an error by applying the Article 7, schedule I of the said Act. He pointed out that even assuming that the learned trial Judge is right in recording a finding on pecuniary jurisdiction, he could not have passed an order of rejection of the plaint. I have also heard learned counsel appearing for contesting respondents. 6. I have carefully considered the submissions. As far as the prayer (b) is concerned the trial Court has found that the appellants have subsequently valued the said prayer correctly at Rs.49,601/-. Prayer (a) of the plaint which in fact seeks substantive relief reads thus : “(a) That it be declared that the defendant No.1 and 6 have no right tittle or interest in respect of the suit premises viz a plot of land admeasuring about 407 square yards forming part of Survey No.269, 4 AO 1104 OF 2004 Hissa No.2 (Part), at Irla Gaothan, Vileparle (West), Bombay 400 056, and shown with reboundary on the sketch plan Exhibit A to the plaint, under the purported sale thereof in favour of the Defendant No.1 by the Defendant Nos 2 to 5”. 7. The suit property is a plot of land admeasuring 407 Square Yards, forming part of survey No. 269, Hissa No.2 (part) of Irla Gaothan Villeparle, (W), Mumbai. The suit property is certainly susceptible to monetary evaluation. Therefore, section 6(iv) (j) of the said Act could never have been invoked by the appellant. Article 7 of the Schedule I of the said Act was correctly applied by the Trial Court. The valuation of prayer (a) will certainly exceed a sum of Rs. 50,000/-. 8. Suffice it to say that the trial Court was right in holding that if the suit was valued properly, the City Civil Court, will not have pecuniary jurisdiction to entertain the suit. 9. Once the said finding was recorded, there was no occasion to pass further order which is incorporated in clause 3 and 7 of the operative part of the impugned order 10. In the circumstances the operative part of the impugned order will have to be modified by deleting clause (3) and (7) of the operative part of the order. Hence, I pass the following order. ORDER 5 AO 1104 OF 2004 i) The finding in the impugned order on the issue of pecuniary jurisdiction is confirmed. The order of return of plaint is also confirmed. ii) Time granted by the trial Court to the appellant to take back his plaint is extended till 30th June, 2011. iii) Clause 3 and 7 of the operative part of the impugned order stand deleted. iv) Appeal is partly allowed on above terms with no order as to costs. (A. S. OKA, J.)