1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8163 OF 2009 Jayesh Jayantilal Shah. .. Petitioner vs. M/S Kukera Construction Company. .. Respondents -- Mr.Vaishnawa a/w Mr.Dave i/b M/s N.N.Vaishnawa & Co.for the petitioner. Mr.Gaurav Joshi and Vivek Shetty i/b DSK Legal for the respondents. -- CORAM :A.S.OKA,J. JUDGMENT RESERVED ON : 10TH FEBRUARY, 2010 JUDGMENT PRONOUNED ON : 22ND FEBRUARY, 2010 JUDGMENT : 1. The Petitioner who is the original plaintiff has taken an exception to the judgment and order dated 20th August 2009 passed by the learned judge of City Civil Court, Bombay. By the said order, the learned trial judge held that in respect of prayer (b) of paragraph 17 of the plaint, his Court has no jurisdiction. The learned judge held that the petitioner ought to have valued the said prayer (b) as per section 6 (iv) (d) of the Bombay Court Fees Act, 1959 (hereinafter referred to as "the said Act"). By the said order a liberty was granted to the petitioner to delete the said prayer with a view to bring the suit within the jurisdiction of the Court. The learned judge directed that if the petitioner fails to correct the valuation by paying necessary court fees or fails to delete the prayer, the plaint will stand rejected under rule 11 of Order VII of the Code of the Civil Procedure, 1908 (hereinafter referred to as "the said Code"). 2 2. The petitioner claims to be the owner of a flat more particularly described in the plaint as the suit premises. The flat is situated in the building on the plot of land which is referred to as the suit property which is more particularly described in paragraph 1 of the plaint. It is contended that the owner of the suit property constructed apartments on the suit property under the provisions of the Maharashtra Apartments Ownership Act, 1970. In Paragraph 5 of the Plaint, it is contended that the petitioner was the owner of the suit premises and the proportionate owner of the suit property to the extent of 29.04%. The first prayer in the suit is for mandatory order directing the respondents to remove in name board put by them on the suit property. The second prayer is for perpetual injunction restraining the respondents from claiming any right , title or interest in the suit property being a plot of land more particularly described in paragraph 1 of the plaint. 3. The learned counsel appearing for the petitioner submitted that the petitioner has not claimed any declaration in the suit. He submitted that section 6 (iv) (d) of the said Act will not apply to the present case as the said provision is applicable only to a suit for declaration. He submitted that it is not in dispute that the petitioner has an undivided share in the suit property and therefore only a prayer for perpetual injunction has been made. He submitted that the only provision which will apply to such a suit is of section 6 (iv) (j) of the said Act. He placed reliance on a decision of this Court in the case of Madhukar Abaji versus Mangalchand Mannalal (1988 Maharashtra Law Journal 558) in support of his submissions. He submitted that the learned trial judge could not have directed the petitioner to delete the prayer (b). On the other hand 3 the learned counsel appearing for the respondent submitted that by a clever drafting, the petitioner cannot change the nature of the suit. He submitted that the averments made in the plaint show that the petitioner intends to claim an undivided share in the suit property. He submitted that the prayer for declaration is implicit in the present suit. He relied upon a decision of this Court in the case of Samrat Furniture Versus Baburao Mankar (2001(3) Maharashtra Law Journal 456). He submitted that the trial Court was absolutely right in holding that the suit will be governed by section 6 (iv) (d) of the said Act. 4. I have given careful consideration to the submissions. The averments made in paragraph 9 of the plaint read thus: 9. The Plaintiff states that plaintiff is the owner of the suit premises and proportionate owner of the suit plot of land to the extent of 29.04% and the other apartment owners are also owner of their respective apartment and proportionate owner of the plot of land and as such the Defendants have no right of any nature whatsoever to put up the said board on the suit plot of land. The prayer clause (b) reads thus: (b)That the Defendants, their agents, servants and representatives and/or anybody acting through or under them be restrained by a permanent order of injunction of this Hon ble Court from claiming any right, title and interest on the suit plot of land bearing No.184, 15th Road, Chembur, Mumbai  400 071, of any nature whatsoever. 4 5. Thus the relief of perpetual injunction is claimed by the petitioner by asserting that he has an undivided share to the extent of 29.04% in the suit property. Thus, the relief of perpetual injunction claimed in the suit is based on title claimed by the petitioner alleging that he has an undivided share in the suit property. At this stage it will be necessary to consider the decision of this court in the case of Samrat Furniture (supra). In paragraph 8 of the said decision it is held thus: 8. What can be seen from the pleadings of the parties is that though the relief of a declaration of ownership of the plaint-firm is not sought by the plaintiffs in expressed terms, the pleadings of the plaintiffs, if read as a whole, would indicate that the suit is virtually a suit for declaration of ownership of the plaintiff-firm with a consequential relief of permanent injunction. Although a relief of declaration of ownership is not asked for in the plaint, the plaintiffs are seeking the adjudication on that issue for the purpose of claiming permanent injunction. Hence, the suit shall have to be valued for the declaration of ownership and the consequential relief of permanent injunction...... 6. Thereafter, in Paragraph 11, This Court quoted a decision of Patna High Court with approval. This court proceeded to observe thus: 11......So what is required to be seen is the averments in the plaint and for that purpose, the plaint has to be read as a whole. Even if no relief of declaration is sought for and if the plaintiff wants the adjudication upon the issue concerned, the necessary consequence of which is the 5 declaration, the suit has to be treated as a one for the declaration of that issue. In the above said case, the relief that was sought by the plaintiff was only for the grant of permanent injunction, but after looking into the allegations in the plaint as a whole, it was clear that the plaintiff could not get the relief of injunction unless there was an adjudication with regard to his right, title, interest and possession over the land. In substance, the suit was held to be for declaration of right, title and interest and for injunction and not for injunction simpliciter and, therefore, the suit stood abated under the relevant provisions of the Act. 7. As far as the decision of this Court in the case of Madhukar (supra) is concerned, in the facts of the case before this Court, it was observed that the subject matter of the suit was not the house and the suit is not about any property as such. In the facts of the case before it, this Court held that clause (j) of Section 6 (iv) will apply and not the clause (d) thereof. The said decision will not help the petitioner. 8. In the present case, the intention of the petitioner is to claim title in the suit property as the owner of an undivided share. If the allegations in the plaint are read as a whole, it is clear that the petitioner will not get the relief of injunction unless there was an adjudication with regard to his claim of undivided share in the suit property. Therefore, the prayer for declaration is implicit in the suit. In the circumstances, as held by this Court in the case of Samrat (supra), the suit will have to be treated as the one for declaration of undivided share of the petitioner in the suit property. Even the first prayer for mandatory injunction for removal of the board on the suit property 6 is based on title. Therefore, clause (d) of section 6 (iv) of the said act will apply to the suit. 9. However, the learned trial judge has committed an error by directing that the plaint shall be rejected in case the petitioner fails to make compliances. The trial court ought to have simply recorded a finding that clause (d) of section 6 (iv) will govern prayer (b) of the plaint. Thereafter the learned trial judge ought to have directed the petitioner to correct the valuation of the suit in accordance with clause (d) of section 6 (iv) of the said Act. The Learned Trial Judge ought to directed the petitioner to pay deficit court fees. After the necessary amendment is carried out to the valuation clause, the Court is required to ascertain whether the valuation is correct, if necessary, by holding an enquiry under section 8 of the said Act. Thereafter If the Court finds that the correct valuation exceeds the pecuniary jurisdiction of the Court, the plaint is required to be returned for presentation to proper Court. In the circumstances, though the finding of the trial court on applicability of clause (d) of section 6 (iv) of the said Act to prayer (b) is correct, the operative part of the impugned order will have to be modified. 10. Therefore, the petition is disposed of by passing the following order: (i) The impugned order is modified. (ii) The petitioner shall value the suit insofar as prayer (b) is concerned in accordance with section 6 (iv) (d) of the said Act. 7 (iii)The Petitioner is directed to carry out necessary amendment to the valuation clause and to pay deficit court fees within a period of four weeks from the date on which the writ of this order is received by the trial Court. (iv) After the valuation is accordingly made, the learned trial judge shall examine whether the valuation has been correctly made, if necessary, by holding an enquiry under section 8 of the said Act. (v) After ascertaining the correct valuation of the suit on the basis of clause (d) of section 6 (iv) of the said Act, if it is found at the valuation of the suit exceeds the pecuniary jurisdiction of the trial Court, the learned trial judge shall pass an order of return the plaint for presentation to proper Court. (vi) The operative part of the impugned order shall be now in terms of aforesaid clauses (ii) to (v). (vii) Accordingly, the writ petition is allowed in part with no orders as to costs. JUDGE