The learned Judge of the trial Court has proceeded to lay
much emphasis on prayer clause (d) in the plaint to hold that the
plaintiffs were seeking possession of the suit property. The specific
averments made in the plaint whereby the plaintiffs have asserted their
possession even on the date of filing of the suit have been ignored. It is,
therefore, clear that the learned Judge of the trial Court committed a
serious error while holding that the Court had no pecuniary jurisdiction
to entertain the suit. The impugned order if permitted to operate would
be corrected in writ jurisdiction.
result in a jurisdictional error
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.2595 OF 2013
PETITIONERS:
Ajay S/o Bhalchandra Nandedkar,
VERSUS
Mrunali Prabhakar Gadgil,
CORAM: A.S. CHANDURKAR, J.
Citation; 2015(2)ALLMR134, 2014(5)ABR829, 2014(6)MhLj629
DATE OF PRONOUNCEMENT OF JUDGMENT: 10-09-2014
By this petition, the petitioners – original plaintiffs have
challenged the order dated 452013 passed below Exhibit46 in Regular
Civil Suit No.124 of 2013 whereby it has been held that the Court of the
4th Joint Civil Judge (Jr. Dn.), Akola had no pecuniary jurisdiction to
entertain and try the said suit.
2.
On 1052013, notice for final disposal of the writ petition
was issued to the respondents. Accordingly, I have heard Shri S. A.
Mohta, the learned Counsel for the petitioners, Smt. P.M. Chandekar,
the learned Counsel for the respondent No.1 and Shri A. R. Deshpande,
the learned Counsel for the respondent No.3.
3. Rule. Heard finally with the consent of the parties.
4. The petitioners are the original plaintiffs. It is the case of
the petitioners that their predecessor, Bhalchandra Nandedkar had
purchased the suit property from defendant No.1 vide registered sale
deed dated 1441977. It is their case that they being the legal heirs of
said Bhalchandra Nandedkar, were the owners and occupiers of said suit
property. The plaintiffs and the defendant No.4 thereafter settled at
Nagpur and the suit property was being looked after by their relatives at
Akola. It is their further case that they were informed by their relatives
that certain construction work was being undertaken on the suit
property and on making enquiries, they learnt that on 232012, the
defendant No.1 had sold the suit property to defendant No.2 and
thereafter, on 4102012, the defendant No.2 had sold the suit property
to defendant No.3. As the request made by the plaintiffs to stop the
construction work was not acceded to, a police report was lodged and
thereafter on 1532013, the aforesaid suit for permanent injunction
seeking to restrain the defendants from selling or transferring the suit
property, from disturbing and interfering with their possession as well as
from making any kind of construction thereon was filed. Similarly, there
was a prayer for grant of mandatory injunction for removal of the
construction erected thereon and to restore the suit property to its
original position.
5.
Along with the aforesaid suit, the petitioners moved an
application for grant of temporary injunction. The defendant No.3
raised an objection to the pecuniary jurisdiction of the Court on the
ground that the plaintiffs were seeking possession of the suit property by
making a prayer for mandatory injunction. On 2032013, a preliminary
issue was framed as regards pecuniary jurisdiction of the Court to try the
suit. After hearing both sides, the learned Judge of the Trial Court on
452013 held that the Court of Civil Judge, Junior Division had no
pecuniary jurisdiction and the plaintiffs were directed to value the suit
for relief of possession at Rs.40,00,000/ and deposit requisite Court
fees. Said order has been assailed by the plaintiffs in this writ petition.
6.
Shri S. A. Mohta, the learned Counsel for the petitioners
submitted that the plaintiffs had not prayed for possession of the suit
property. The suit was, in fact, a simplicitor suit for permanent
injunction. The mandatory injunction sought was to remove the
construction alleged to be illegally made by the respondent No.3 and to
restore the suit property to its original position. He submitted that in
absence of there being any prayer for possession, the trial Court erred in
holding that the suit was, in fact, one for possession. He further sought
to rely upon the order passed by the trial Court vide Exh.5 wherein
temporary injunction was granted restraining the defendants from
carrying out any construction work or from alienating the suit property.
He, therefore, submitted that the impugned order deserves to be set
aside.
7.
On the other hand, Smt. P. M. Chandekar, the learned
Counsel appearing for the respondent No.1 and Shri A. R. Deshpande,
the learned Counsel for the respondent No.3 submitted that the trial
Court rightly found that the prayer for mandatory injunction was such
that under its garb,the plaintiff was seeking possession of the suit
property. It was submitted that the averments in the plaint revealed that
it was the case of the plaintiffs that the construction was being
undertaken on the suit property and the same, therefore, made it clear
that it was the defendant No.3 who was in possession and it was he who
was making construction thereon. The learned Counsel for the
respondents relied upon the judgment of learned Single Judge of this
Court in the case of Vijaya wd/o Vijay Vitthalani and others Vs
Jagdish Kanjubhai Vitthalani, reported in 2010 (3) Mh.L.J., 624 and
in the case of Ram Gopal Gupta vs. Rajesh J. Kothari, reported in
1990(3) Bom. C. R. 569 in support of their contentions.
I have carefully considered the aforesaid submissions. I
8.
have also gone through the plaint in Regular Civil Suit No.124 of 2013.
Before considering the challenge to the impugned order, it would be
necessary to refer to the settled position of law that can be gathered
from the following decisions of the Supreme Court.
The question of courtfees must be
considered in the light of the allegations
made in the plaint and its decision cannot
be influenced either by the pleas in the
written statement or by the final decision
of the suit on merits. AIR 1958 SC 245,
Sathappa Chettiar v. Ramanathan
Chettiar
(b) For the purposes of valuation of the suit
for determination of the court fees
payable thereon, what is relevant is the
plaint. The averments made and relief
sought in the plaint determines the
character of the suit for the purposes of
the court fees payable thereon. What is
stated in the written statement is not
material in this regard. 1994 (4) SCC
349, Ram Narain Prasad and another
Vs. Atul Chander Mitra and others
(c) The court fee has to be paid on the plaint
as framed and not on the plaint as it
ought to have been framed unless by
(a)
astuteness employed in drafting the plaint
the plaintiff has attempted at evading
payment of court fee or unless there be a
provision of law requiring the plaintiff to
value the suit and pay the court fee in a
manner other than the one adopted by
the plaintiff. The court shall begin with an
assumption, for the purpose of
determining the court fees payable on
plaint, that the averments made therein
by the plaintiff are correct.
It is the substance of the
relief sought for and not the form which
will be determinative of the valuation and
payment of court fee. The defence taken
in the written statement may not be
relevant for the purpose of deciding the
payment of court fee by the plaintiff. If
the plaintiff is ultimately found to have
omitted to seek an essential relief which
he ought to have prayed for, and without
which the relief sought for in the plaint as
framed and filed cannot be allowed to
him, the plaintiff shall have to suffer the
dismissal of the suit. 2002 (1) SCC 304,
Kamaleshwar Kishore Singh vs. Paras
Nath Singh and others.
9.
It is, therefore, necessary in this background to consider the
averments made in the plaint. In para 3 thereof, it has been stated thus:
“3.
It is submitted that late Bhalchandra
Nandedkar has purchased the suit purchased the suit
property, from defendant no.1 by a registered sale
deed dated 14041977 (Fourteenth day of April
Nineteen Seventy Seven) for valuable consideration
and on the date of sale deed, the defendant no.1 has
handed over actual physical possession of the suit
property to him. In this way since 14041977
(Fourteenth day of April Nineteen Seventy Seven)
deceased Bhalchandra Nandedkar was owing and
possessing the suit property, as its absolute owner
and after his death, since from 15071984 (Fifteenth
day of July Nineteen Eighty Four) and onwards
continuously till today, the plaintiffs no.1 to 4 along
with defendant no.4 are owing and possessing the
suit property.”
Thereafter in para 9, it has been stated as under:
“9.
It is most humbly and respectfully
submitted that since after 14041977 (Fourteenth
day of April Nineteen Seventy Seven), neither the
defendant no.1 was owner nor she was in possession
of the suit property and therefore, the defendant no.1
is having no right, power or authority to transfer the
title and ownership or to hand over the possession of
the suit property to any body else.
It is submitted that the defendant no.1 to
3 cannot contend and cannot allege that on the basis
of alleged sale deeds, the plaintiffs have been ousted
from the possession of the suit property. It is
submitted that as on today also the plaintiffs, along
with defendant no.4, are in possession of the suit
property as per the law. Therefore it is necessary to
grant injunction against the defendant no.1 to 3.
Hence, this suit.”
Prayer clauses (b)(c) & (d) of the plaint are as under:
“(b)
The defendant no.1 to 3, their agents
and servants and any person claiming through the
defendants, be kindly permanently restrained from
disturbing and from interfering with the possession of
the plaintiffs over the suit property, in any mode or
manner.
(c)
The defendant no.3, his agents and
servants and any person claiming through the
defendant no.3, be kindly permanently restrained
from making any kind of development or construction
work on the suit property in any mode or manner.
(d)
A decree for mandatory injunction be
passed against defendant no.3 and thereby the
defendant no.3 be directed to remove the
construction erected on the suit property and to refill
pits and to restore back the suit property to its
original position by removing entire articles there
from, at his cost and expenses and on failure of the
defendant no.3 to do same, the plaintiffs be kindly
allowed and permitted to do same at the cost and
expenses of defendant no.3.”
10.
Under provisions of Order VI Rule 2, material facts are
required to be pleaded on which the party pleading relies for his claim.
The prayers made are for the purposes of seeking relief on the basis of
such averments made in the plaint. The prayer clauses cannot be read in
isolation, but they have to be read in conjunction with the pleadings in
the plaint. In fact, the prayers would have to be understood in the
context of the pleadings made in that regard.
11.
The pleadings in the plaint indicate that it is the specific
case of the plaintiffs that after purchase of the aforesaid property by
Bhalchandra Nandedkar on 1441977, he was put in actual possession.
Said possession continued thereafter without any interruption. There
are specific assertions in the plaint that even on the date of filing of the
suit, it was the plaintiffs who were in possession. In this background, if
the prayers as made are examined, it would be clear that the same
proceed on the premise that the plaintiffs were in possession. Therefore,
reading prayer clause (d) in the plaint along with other averments in the
plaint, it cannot be said that the plaintiffs were seeking possession of the
suit property by virtue of making said prayer. When it is the consistent
case of the plaintiffs that they were always in possession of the suit
property till filing of the suit, then prayer clause (d) cannot be read in a
manner that would negate the averments made in the plaint. In fact, on
a plain reading of said prayer clause, it cannot be said that the plaintiffs
were seeking possession of the suit property. Moreover, the Court would
have to proceed on the basis of assumption that the averments made in
the plaint are correct. On reading the plaint as a whole, the prayers
made in that regard would have to be considered. The valuation of the
suit as arrived at would be on the basis of such prayers. It cannot be held
to be a case of astute drafting of the plaint as sought to be urged by the
learned Counsel for the respondent No.3, moreso when the plaint is read
in its entirety.
12.
In so far as the decisions relied upon by the learned
Counsel for the respondents are concerned, the same proceed on the
basis of the facts noted therein. In Vijaya (supra), it was observed that to
claim physical possession, a person should be in such a position that he
can deal with the property to the inclusion of others. The said
observations have been made when this Court was considering a second
appeal on merits. Similarly, in Ram Gopal Gupta (Supra), it was
observed that if a plaintiff seeks to evict the defendant from the suit
premises by an order of injunction, it would, in effect, be a case where
he was seeking recovery of possession. In view of the specific averments
of the plaintiffs, the observations made in both the aforesaid judgments
cannot be made applicable to the facts of the present case.
13.
The learned Judge of the trial Court has proceeded to lay
much emphasis on prayer clause (d) in the plaint to hold that the
plaintiffs were seeking possession of the suit property. The specific
averments made in the plaint whereby the plaintiffs have asserted their
possession even on the date of filing of the suit have been ignored. It is,
therefore, clear that the learned Judge of the trial Court committed a
serious error while holding that the Court had no pecuniary jurisdiction
to entertain the suit. The impugned order if permitted to operate would
be corrected in writ jurisdiction.
14.
result in a jurisdictional error and hence, the same will have required to
In view of aforesaid, I pass the following order.
ORDER
(i)
The order dated 452013 passed below Exh.46 is quashed
and set aside.
It is held that the Court of Civil Judge, Junior Division has
(ii)
pecuniary jurisdiction to try the suit on the basis of the
valuation as made in para 12 of the plaint.
Rule is made absolute with no order as to costs.
(iii)
JUDGE
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