IN THE HIGHCOURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLI CATION NO. 76 OF 2011 Manju Narendra Gupta Adult, aged 46 years approximately Having her office at R.N.A.House 3rd Floor, 50 Veer Nariman Road, Fort, Mumbai 400 023. ... APPLICANT VERSUS 1 Meenakshi Ashok Patil Adult, aged 40 years, Indian Inhabitant, Occ. Business, r/o Patil compound, Quarry road, Bhandup(West) Mumbai 400 078 2 Jagruti Vivek Tare Adult, aged 36 years, Indian Inhabitant Occ. Housewife Residing at ‘Sagar Darshan” Building No. 3, Near Fishermen’s colony, Mahim, Mumbai 400 016. 3 Kailash Pandhari Keni Adult, aged 35 years, Indian Inhabitant Occupation service 4 Jitendra Pandhari Keni Adult, aged 33 years, Indian Inhabitant Occupation service 5 Jayesh Pandhari Keni Adult, aged 31 years, Indian Inhabitant Occupation service. cra-76.11 Nos. 3 to 5 residing at Keni House Charkop Village, Kandivali(West), Mumbai 400 067. 6 Harishchandra Motiram Bhandari Adult, aged 55 years, Indian Inhabitant Occupation business Residing at Keni House, Charkop Village Kandivali (West) Mumbai 400 067. 7 Sakharam Motiram Bhandari Adult, aged 53 years, Indian Inhabitant Occupation business, Residing at Keni House, Charkop Village Kandivali (West) Mumbai 400 067. 8 Laxman Motiram Bhandari Adult, aged 50 years, Indian Inhabitant Occupation business Residing at Keni House, Charkop village Kandivali (West) Mumbai 400 067. 9 R.N.A. Builders (AA) R.N.A. Corporate Park 7th Floor, Kalangar Bandra(East) Mumbai 400 050. .. RESPONDENTS Shri P.K.Dhakephalkar, Senior Advocate i/b. Ashwin Ankhad & Associates for the applicant. Atul S. Tungare for respondent Nos.5 to 8. 2 cra-76.11 CORAM : R.M.BORDE, J. RESERVED ON : 18th August 2011. PRONOUNCED ON : 10th October 2011. JUDGMENT : Heard. 2. Rule. Rule made returnable forthwith. With the consent of the parties, revision application is taken up for final hearing at admission stage. 3. Original defendant no. 4 has approached this court taking exception to the order passed by the learned Judge, City Civil Court, Dindoshi Branch, Mumbai in Notice of Motion No. 2067/2010 in S.C.Suit No. 2078/2008. 4. Notice of motion came to be moved by defendant / applicant herein requesting the court to return the plaint presented by the plaintiffs / respondents herein for proper presentation to the appropriate Court, as contemplated by Order VII Rule 10 of the Code of Civil Procedure. 5. Respondent nos. 1 to 5 ( hereinafter referred to as the ‘plaintiffs’) presented suit against respondent nos. 6 to 8 / 3 cra-76.11 original defendant nos. 1 to 3 and the appellant and respondent no. 9 / original defendant nos. 4 and 5 claiming perpetual injunction and negative declaration. According to the plaintiffs, they are the owners of 1/3rd undivided share in the suit property which is a plot admeasuring 1452.1 sq. mtrs out of survey no. 75 Hissa no. 5, CTS No. 694 and 671 situate at village Kandiwali, Mumbai. According to the plaintiffs, the other 2/3rd undivided share belong to two other branches of plaintiffs’ family. It is alleged that the cause of action arose in the month of November 2008 when one of the branches, according to the plaintiffs, having 1/3rd undivided share in the suit property and who have been impleaded as defendant nos. 1 to 3 in the suit, denied right, entitlement of the plaintiffs in relation to suit property and asserted their exclusive rights. On assertion that plaintiffs are owner of 1/3rd undivided share in the property, plaintiffs have sought declaration that defendant nos. 1 to 3 are not entitled to sell, transfer etc. suit property and, alienation, if any made by defendant nos. 1 to 3, in favour of defendant nos. 4 and 5, is not binding on plaintiffs and will have no effect on the right, title and interest of the plaintiffs. 6. Defendants appeared and resisted the suit by filing written statement. According to defendant nos. 4 and 5, plaintiffs have no interest in the property. It is contended by 4 cra-76.11 defendants that by virtue of agreement dated 31st January, 1988, defendant nos. 1 to 3 who had become exclusive owner of the suit property pursuant to the family arrangement / partition, had agreed to sell and grant development rights in respect of suit property to defendant Nos.4 and 5. It is also pleaded that simultaneously with execution of agreement dated 31st January, 1988, possession has been handed over to defendants. Agreement is also confirmed by the predecessors of the plaintiffs who had signed it as confirming parties. There is a deed of conveyance executed on 27th January, 2003, by virtue of which defendants became owner of the property. The deed of conveyance has been registered with the Sub- Registrar, Assurances, Borivali on 9th May, 2003. On the basis of pleadings of the parties, issues were framed by the trial court and one of the issues framed is in respect of ownership of the plaintiffs and their entitlement to 1/3rd share in the suit property. Issue has also been framed in respect of pecuniary jurisdiction of the court to entertain the suit. It is the contention of defendant that the suit presented by plaintiffs is beyond pecuniary jurisdiction of the Court. The suit has not been properly valued and, as such, plaint shall be returned for proper presentation as contemplated by Order VII Rule 10 of the Code of Civil Procedure. 5 cra-76.11 7. Notice of motion was heard by the Court after extending opportunity to both the parties and the learned Judge of the City Civil Court by order dated 14th December, 2010 was pleased to reject the notice of motion presented by defendant nos. 4 and 5 and held that the suit is properly valued and the plaint is not required to be returned to the plaintiffs as claimed by defendants. 8. In order to appreciate the controversies, it would be appropriate to refer the substantive prayers made in the plaint. Those read thus : a) that this Hon’ble Court may be pleased to hold and declare that the Defendants No. 1 to 3 are not entitled to sell, transfer, alienate or encumber the suit property viz. all that piece or parcels of lands bearing Survey No. 75, Hissa No. 5, C.T.S. No. 694, 671 of Village Kandivali, Taluka Borivli, Mumbai Suburban District and more particularly described in the Schedule at Exhibit ‘A’ hereto in favour of the Defendants No. 4 and 5 and/or in favour of any person or persons and the transfer and/or alienation if any made by the Defendants No. 1 to 3 in favour of Defendants No. 4 and 5 is not binding on the Plaintiffs and will have no effect on the right, title and interest of the Plaintiffs; b) that this Hon’ble may be pleased to issue an order and permanent injunction restraining the Defendants, their agents, servants and all persons claiming through them from carrying out any further constructions and/or otherwise putting up, and/or developing any additional building/s, structure/s, erections of any nature on the suit property viz. all that piece or parcels of lands bearing Survey no. 75, Hissa No. 5, C.T.S. No. 694, 671 of Village Kandivalil, Taluka Borivli, Mumbai 6 cra-76.11 Suburban District and more particularly described in the Schedule at Exhibit ‘A’ hereto. c) that this Hon’ble Court may be pleased to issue mandatory order and injunction against the Defendants, ordering and directing the Defendants to pull down and/or to remove, and/or to demolish the construction raised by them on the suit property viz. all that piece or parcels of lands bearing Survey No. 75, Hissa No. 5, C.T.S. No. 694, 671 of Village Kandivali, Taluka Borivli, Mumbai Suburban District and more particularly described in the Schedule at Exhibit ‘A’ hereto. . It is noted in paragraph no. 11 of the plaint as quoted below :- 11. On Sunday, the 10th of November, 2008 the Plaintiffs caught hold of the Defendants No. 1 to 3 and asked them as to how the board of Defendant No. 5 was appearing on the site of the suit property and as to why the Defendants No. 1 to 3 had avoided to give any documents to the Plaintiffs. The Defendants No. 1 to 3 thereupon reacted rudely with the Plaintiffs and told Plaintiffs that they had allowed the suit property to be developed by Defendants No. 4 and 5 in their own right and the Plaintiffs might do their worst. . It is asserted in the plaint that plaintiffs have 1/3rd undivided share in the property. Paragraph no. 18 relates to occurrence of cause of action wherein it is stated that cause of action arose on 10th November, 2008 when defendant nos. 1, 2 and 3 denied right of the plaintiffs in the suit property and asserted their exclusive right to the suit property. Thus, it is evident on perusal of the plaint that plaintiffs asserted 1/3rd 7 cra-76.11 share in the suit property and the cause of action arose as the defendants denied plaintiffs’ entitlement to 1/3rd share in the property. Negative declaration is also sought to the effect that defendant nos. 1 to 3 are not entitled to sell, transfer, alienate or encumber the suit property in favour of defendant nos. 4 and 5 or in favour of any other person and, any transfer or alienation, if made by defendant nos. 1 to 3 in favour of defendant nos. 4 and 5, is not binding on plaintiffs. 9. While replying the contentions raised in the plaint, it is asserted by defendants that interest is created in their favour in the year 1988 itself when agreement has been executed by defendant nos. 1 to 3 which is followed by a deed of conveyance which has been registered with the Registrar of Assurances. So far as pecuniary jurisdiction of the Court to entertain the suit is concerned, objection has been raised in the written statement under the heading ‘Improper valuation, payment of stamp duty and jurisdiction of the Court’ which reads thus : IMPROPER VALUATION, PAYMENT OF STAMP DUTY AND JURISDICTION OF THE COURT 73 It is submitted that the suit has not been valued in accordance with the provision of the Bombay Court Fee Act and accordingly the Court Fee payable have not been paid. 74 The Plaintiffs have stated in Para 22 that the suit is for declaration, permanent and for mandatory injunction. The relief claimed in the suit are not 8 cra-76.11 susceptible to monetary evaluation. The Plaintiffs evaluate prayers clause (a), (b) and (c) of the suit at Rs. 1,000/- each under section 6(iv)(j) of the Bombay Court Fee Act and the Court fees are paid accordingly. However, these defendants submits that the aforesaid statement has been made to misguide the court as the Plaintiffs have prayed in their prayer for this Hon’ble Court to hold and declare as also to grant injunction in respect of the suit property. 75 It is submitted that the prayers to the suit very clearly crystallizes the dispute under the suit which is to the entitlement of Defendant No. 1 to 3 to sell, transfer and alienate or encumber the suit property in favour of Defendant No. 4 and or in favour of any other person and that the transfer and or the alienation if any made by Defendant no. 1 to 3 in favour of Defendant no. 4 and 5 is not binding on the Plaintiffs and will have no effect on the right, title and interest of the plaintiffs. The injunctions and the appointment of receiver sought are in relation to the suit property thus the subject matter in dispute i.e. the suit property is susceptible of monetary evaluation. Thus the suit should have been valued as per the present market value of the suit property which is substantially higher than the valuation of the suit done by these plaintiffs, thus the suit has been wrongly valued and the valuation appears to be gross under valuation and proper Court fee should have been paid and possibly consequent thereto the suit will fall beyond the jurisdiction of this Hon’ble Court. 76 It is submitted that the government of Maharashtra has published Ready Reckoner for the values of piece and parcel of land in Mumbai under Bombay Stamp Act. If the said values are considered for the suit property then the monetary value of the suit will be far in excess of the monetary jurisdiction of this Hon’ble Court. The value of the suit property admeasuring 2651.03 sq. mtrs as per the value published in the Stamp Duty Ready Reckoner 2008 page 155 under zone/sub zone 79/354 wherein the suit property bearing survey no. 671 and 694 is included is Rs. 6,12,38,793/- ( Rupees Six Crore Twelve Lacs Thirty Eight Thousand Seven Hundred and Ninety Three only ) @ Rs. 23,100/- ( Rupees 9 cra-76.11 Twenty three thousand one hundred only) per sq. mtr. 77 In view of the above, these Defendants further submit that the improper valuation of the suit has been done by the Plaintiffs to deprive the court of the proper stamp duty payment. These Defendants submit that this court may determine the amount of fee chargeable under the Bombay Court Fee Act in accordance with section 14(1) of the Bombay Court Fee Act 1959 after instituting an enquiry u/s 8 of the said Act. These defendants therefore submit that the present suit is liable to be dismissed for improper valuation of court fees as the Plaintiffs have paid insufficient court fees in view of reliefs sought by them and by using negative covenants to surpass the mandatory provisions of the Court Fees Act. Hence, the present suit is liable to be dismissed for paying improper court fees. 10. It is the prayer of the revision applicant / original defendant no. 4 that on consideration of the averments in the plaint, plaintiffs are claiming entitlement to the suit property to the extent of 1/3rd share and are claiming declaration of their rights along with consequential relief. As such, the suit is required to be valued in accordance with section 6(iv)(d) of the Bombay Court Fees Act, 1959, whereas plaintiffs have valued the suit as per section 6(iv)(j) of the Act. Another relevant provision for consideration is section 6(iv)(ha) of the Act. The relevant provisions are quoted as below : 6 Computation of fees payable in certain suits - The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :- 10 cra-76.11 (iv)(d) for ownership etc. of immovable property etc. 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 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 south to be protected from attachment with or without sale or the fee [sixty rupees], whichever is less: 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: (iv) (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; (iv)(j) for other declarations – . In suits where declaration is sought, with or without injunction or other consequential relief and the subject matter in dispute is not susceptible of monetary evaluation and which are 11 cra-76.11 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;]] . Section 6(iv)(d) of the Bombay Court Fees Act, 1959 is in respect of suit for declaration 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 whereas section 6(iv)(j) is applicable wherein declaration is sought with or without injunction or other consequential relief and the subject matter is not susceptible of monetary evaluation. It is the contention of the defendant / applicant herein that it cannot be said that the suit property is not susceptible to monetary evaluation. It is a piece of plot put to non- agricultural use whereupon in fact defendant has constructed building on some portion and the construction activities are going on. The suit is presented after about twenty years of the execution of the agreement and about five to six years after execution of the registered conveyance deed. It cannot be said that plaintiffs were not aware of creation of interest in favour of defendant nos. 4 and 5, however, in order to avoid the liability to pay Court fees, the plaintiffs have asked for negative declaration that defendant nos. 1 and 3 are not entitled to create interest in favour of defendant nos. 3 and 4, when in fact, much prior to presentation of the suit, interest 12 cra-76.11 was created. If plaintiffs want avoidance of sale, the suit is to be valued in accordance with section 6(iv)(ha) of the Bombay Court Fees Act, 1959. But merely to avoid payment of Court fees and to choose a particular forum, the suit has been presented seeking negative declaration and injunction. 11. It is the contention of plaintiffs that the suit is for injunction and other consequential reliefs. The subject matter of the suit is not susceptible to monetary evaluation. The suit property was put to agricultural use and the plaintiffs have valued the suit properly. It is also contended by plaintiffs that objection is raised after recording of evidence of plaintiffs has commenced and the plaintiff has in fact examined himself and has also been cross examined. Once the courts proceeds to frame issues and starts recording of evidence, the Court has to pronounce the judgment on all issues after recording evidence and the suit cannot be decided on preliminary issue. In reply to this, it is the contention of defendant / applicant herein that the notice of motion is moved for return of plaint and as provided under Order VII Rule 10 of the Code of Civil Procedure, the plaint can be returned at any stage of the suit. 12. Learned Judge of the City Civil Court in the impugned order has observed that it appears from pleadings that the suit is based on apprehension of plaintiffs that 13 cra-76.11 defendant nos. 1 to 3 may create third party rights, might sell the property, and therefore, present suit is filed for declaration that defendant nos. 1 to 3 are not entitled to sell or create third party right. The suit is certainly not for declaration of ownership of plaintiffs. It is also not denied in the plaint that defendant nos. 1 to 3 are not having share in the suit property. Assertion in the plaint is though defendants are having right, they are not entitled to sell the property, so as to prejudice the rights of the plaintiff. Such a relief is not susceptible to monetary evaluation. For the purpose of filing a suit under section 6(iv)(d), the suit must be for declaration in respect of nature specified in sub-section. This suit is not for declaration of ownership of immovable property or otherwise and therefore it is not necessary for the plaintiff to value the suit under section 6(iv)(d) of Bombay Court Fee Act. It is also observed in the judgment that there is no dispute that plaintiffs are having 1/3rd share in the property. The learned Judge proceeds on the basis, that plaintiffs’ entitlement to 1/3rd share in the property is undisputed. Defendant nos. 4 to 5 have categorically denied entitlement of plaintiffs to 1/3rd share in the property and as such issue has been framed in that regard. Issue is framed by the trial court as “whether plaintiffs prove that they have 1/3rd share in the suit property.” Thus, in effect, suit presented by plaintiffs is for declaration in respect of 1/3rd share. In paragraph no. 14 cra-76.11 11 of the plaint, there is assertion that defendant nos. 1 to 3 have denied share of the plaintiffs. Thus, it is wrong to contend that entitlement of the plaintiffs to 1/3rd share is uncontraverted. Plaintiffs have claimed relief in the plaint in such a manner to avoid payment of Court fees and to bring the suit within pecuniary limits of the City Civil Court. It is the contention of the defendants that as per Ready Reckoner, the value of the property is to the tune of Rs.6,12,38,793/-( Rs. Six Crore Twelve Lac Thirty Eight Thousand Seven Hundred and Ninety Three only) whereas the suit is valued by plaintiffs at Rs. 1,000/-. Plaintiff in his deposition has admitted that the value of the suit property can be around Rs. 5,00,00,000/- (Rs. Five Crores). Thus, it cannot be contended that the suit is not susceptible for monetary evaluation. 13. Reliance is placed on a judgment in the matter of Radhabai Vasudeo Jethabhoy vs. Laxmichand Chanans reported in 1956 Bombay 649. In the reported matter, the suit was presented by the landlady against the person in occupation of Room No. 2 on the second floor. The landlady was in possession of the flats on fourth and fifth floors and also a room on second floor. In May 1951, plaintiff went out of Bombay leaving one Gopalji in occupation of the premises. It is contended that when she returned back in July 1951, she found Room No. 2 on the second floor occupied by defendant 15 cra-76.11 and fourth and fifth floor occupied by defendant in another suit. Those persons claimed to be tenant in occupation and further claimed that they are paying rent amount to Gopalji. One would have expected that with these averments the plaintiff would pray for a decree for possession, but instead the prayers in the plaint are for a declaration that the defendant is not entitled to reside in Room No. 2 on the second floor and for a mandatory injunction directing the defendant to remove himself from the said premises. In these circumstances, while allowing the objection taken by defendant in respect of pecuniary jurisdiction of the suit, the Court observed in paragraph no. 2 of the judgment thus: 2 Now, in my judgment in Suit No. 1875 of 1948 dated 10-2-1949 I held : . “The plaintiffs cannot by merely so drafting their prayers as to exclude or include reliefs which can or cannot be granted by a Court, confer on the Court jurisdiction to try the suit. It is necessary to consider what the cause of action in the plaint is and what is the substantive relief which the plaintiffs would be entitled to if they succeed in the suit, in order to determine whether the Court has jurisdiction, irrespective of what prayers the draftsman has thought fit to put in the plaint.” I have therefore to look at the plaint to discover what is the true nature of the suit. It is obvious that upon the averments in the plaint, the defendant is in possession and since it is alleged that he is a trespasser, obviously the appropriate prayer is a prayer for possession and that is the relief to which the plaintiff would be entitled, if she succeeds. . There can