Full Judgment Text
2019:BHC-AS:17901
Rane 1 / 14 CRA2652011 (sr.4)
25.6.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 265 OF 2011
Shri. Surendra Yashwant Deole,
Since deceased through his heirs
and legal representatives
1. Smt. Sunanda Surendra Deole
Age : 54 yrs, Occ : Housewife,
2. Ms. Sayali Surendra Deole
Age : 28 yrs, Occ : Service
3. Tejas Surendra Deole
Age : 24 yrs, Occ : Education
All R/at. 484/103, Mitra Mandal
Colony, Parvati, Pune411 009. ….Applicants
: V E R S U S :
1. Shri. Sudhakar Vinayak Sharangpani
Age : 68 yrs, Occ : Business
2. Sou. Usha Sudhakar Sharangpani
Age : 59 yrs, Occ : Housewife,
Both residing at : 484/103, Mitra
Mandal Colony, Parvati, Pune411 009.
3. Pune Municipal Commissioner
Having Office at Pune Municipal
Corporation Bhavan, Shivaji Nagar,
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Rane 2 / 14 CRA2652011 (sr.4)
25.6.2019
Pune411 005. ….Respondents
APPEARANCES :
Mr. S.S. Kanetkar, Advocate for the applicants.
Mr. Jaydeep Deo, Advocate for respondent no.2.
CORAM : SANDEEP K. SHINDE, J.
CORAM : SANDEEP K. SHINDE, J.
thth
Tuesday, 25 Tuesday, 25 June, 2019. June, 2019.
ORAL JUDGMENT :
ORAL JUDGMENT :
1. Heard learned Counsel for the parties.
2. Applicants who are the defendants in the
Regular Civil Suit No. 780 of 2009 instituted by
respondents no.1 and 2 (hereinafter called as “the
plaintiffs) had questioned valuation of the suit and
amount of fees payable under Section 6 of the Bombay
Court Fees Act (now, Maharashtra Court Fees Act) vide
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Rane 3 / 14 CRA2652011 (sr.4)
25.6.2019
nd
application dated 2 December, 2009 and requested the
trial Court to reject the plaint under Order VII Rule 11
clause (b) of the Civil Procedure Code, 1908. Clause (b)
reads as under :
“11. Rejection of plaint .
(b) where the relief claimed is undervalued,
and the plaintiff, on being required by the
Court to correct the valuation within a time
to be fixed by the Court, fails to do so;”
3. The learned Judge rejected the said
th
application on 19 November 2010, against which this
Civil Revision Application under Section 115 of the Civil
Procedure Code, 1908 is preferred.
4. Heard learned Counsel for the parties,
perused the plaint, application and reply filed by the
plaintiffs and also the impugned order.
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Rane 4 / 14 CRA2652011 (sr.4)
25.6.2019
5. The plaint narrates that, the plaintiffs were the
tenant of Smt. Sudha Yashwant Deole in respect of Flat
No.4, BungalowNeelmani situated on Survey No.484,
Pune. Plaintiff states that, out of love and affection, Smt.
Sudha Yashwant Deole (hereinafter called “the landlady”
th
for short) in her registered Will dated 13 August, 1990
expressed her wish and thus permitted the plaintiff to
construct one room on the terrace above Flat No.4. It is
the plaintiff's case that, another Flat No.5 adjoining to
Flat No.4 was lease out by the landlady to the plaintiff
th
no.1 vide registered lease deed dated 20 November, 1991
and the plaintiffs were authorised and permitted to
construct and utilise the space above Flat No.5 also. The
th
plaintiffs relied on Clause9 of the lease deed dated 20
November, 1991, which reads as under :
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Rane 5 / 14 CRA2652011 (sr.4)
25.6.2019
“It is agreed that the terrace and the additional
F.S.I. upon the said Flat No.5 shall always be
deemed to be leased out perpetually under this
agreement in favour of the tenant. The tenant
shall have right to make additional permissible
construction upon the said terrace. In case of
any demolishing of the said building by any
misfortune or act of God or by any reason, the
tenant shall have right to reconstruct the said
flat as his own accords and without any
permission of the landlord.”
6. Plaintiffs would assert that, the landlady
appointed plaintiff no.1 as Executor of her Will and
expressed her desire in the Will that defendant no.1 shall
not make construction in and on open space around the
bungalow, “Neelmani”. Plaintiffs would further assert
that, defendant no.1 contrary to the wish of the landlady
sought permission of the Municipal Corporation to raise
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Rane 6 / 14 CRA2652011 (sr.4)
25.6.2019
the construction in and around the Bungalow, “Neelmani”
th
vide Commencement Certificate dated 10 July, 2008.
Plaintiffs were thus, apprehending circumvention of their
rights to utilise the space on the terrace, above Flats No.4
and 5. It is under these circumstances, they instituted
the suit and sought the following reliefs :
“(i)defendant no.1 has no right to make
construction over the property described in para
1(a) and above Flats No.3, 4 and 5 which are
housed in Bungalow, “Neelmani”.
(ii) It may be declared that the plaintiffs alone
have a right to construct a room and open terrace
above Flats No.4 and 5
(iii)that the plan sanctioned by the defendant no.2
(Corporation) be cancelled.
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25.6.2019
(iv) that the defendant be restrained from making
construction on an open space of the property
described in para1(a) i.e. bungalow, Neelmani.
7. It may be stated that the plaintiffs are
asserting their right to utilise the terrace above Flats
No.4 and 5 in terms of the Will and the lease deed
executed by the landlady in their favour.
8. The plaintiffs valued the suit at Rs.2,000/ for
reliefs and jurisdiction and paid the courtfees amount
accordingly. The defendants disputed the valuation and
requested the trial Court to hold enquiry under Section 8
of the Suit Valuation Act, 1987. It is the case of
defendants that, the plaintiffs are seeking specific
th
performance of the leasedeed dated 20 November, 1991
and ought to have valued the suit for courtfees and
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Rane 8 / 14 CRA2652011 (sr.4)
25.6.2019
jurisdiction in terms of Section 6(xi) of the Bombay Court
Fees Act. Their next objection is that, since the plaintiffs
are seeking declaration of their right to utilize the open
space above the Flats No.4 and 5, suit ought to have been
valued for courtfees and jurisdiction under Section 6(d) of
the Bombay Court Fees Act.
9. Thus, I am required to answer the following
issues;
(i) is the suit instituted by the plaintiffs is for
specific performance of contract or for
declaration of their rights.
(ii) whether the enquiry under Section 8 of
the Suit Valuation Act, 1987 is deserved to
be directed as sought by the petitioners
defendants ?
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Rane 9 / 14 CRA2652011 (sr.4)
25.6.2019
10. What plaintiffs are seeking herein is a
declaration of their right to utilise the space above Flat
No.4 and 5 as per the wish of the landlady, expressed by
her in will; and utilise the space above Flat No.5 as per
Clause (9) of the leasedeed.
11. In this case, the plaintiffs are neither seeking
specific performance of contract of sale nor of contract of
mortgage nor of contract of lease nor of award as
contemplated in Clause (xi) of Section 6 of the Bombay
Court Fees Act.
12. So far the first prayer in the suit is
concerned, the plaintiffs are seeking declaration that,
defendants do not have a right to utilise the open space
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Rane 10 / 14 CRA2652011 (sr.4)
25.6.2019
around the bungalow, “Neelmani”. This prayer is
obviously founded on the basis of contents of the Will of
the landlady. Therefore, here the plaintiffs are not
staking the claim in the property nor seeking enforcement
of rights therein.
13. So far as the second prayer is concerned,
the plaintiffs are seeking declaration of their right to
utilise the open space above Flat no.4 in accordance with
the desire and wish of landlady as expressed, in her Will.
The plaintiffs are also seeking declaration of their right to
utilise the space above Flat No.5 in terms of Clause (9) of
the leasedeed executed by the landlady. Admittedly, the
landlady lease out Flat No.5 to the plaintiffs in November,
1991 and since then plaintiffs are using and occupying
the said flat. It appears, vide Clause (9), (reproduced
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Rane 11 / 14 CRA2652011 (sr.4)
25.6.2019
hereinabove), the landlady permitted the plaintiffs to
make additional permissible construction upon the
terrace of Flat No.5. It is the plaintiff's case that,
contrary to the wish of the landlady, the defendants
secured permission for construction and thus they were
apprehending evasion of their rights to make permissible
additional construction on the terrace of Flat no.5. It is in
these circumstances, they sought a declaration of their
right with injunction.
14. It is therefore not a suit for specific
performance but for declaration with injunction and other
consequential reliefs. In other words, the suit is neither
subject to courtfees in terms of Clause(iv)(d) read with
(v) nor subject to Clause (xi) of Section 6 of the Bombay
Court Fees Act, but is subject to the provisions of Clause
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Rane 12 / 14 CRA2652011 (sr.4)
25.6.2019
6(iv)(e) and (j) of the Bombay Court Fees Act. The Issue
no.1 is answered accordingly.
15. So far as the enquiry as under Section 8 of
the Suit Valuation Act is concerned, it is clear from the
provisions of Section 8 that it divides the suit into two
Classes; one class of suits are those suits which are
referred to in paragraphs (v), (vi), (x) and Clause (d) of
paragraph (xi) in Section 6 of the Bombay Court Fees Act,
1959. These are the suits for possession of land, houses
and gardens, suits to enforce right of preemption, suits
against mortgages for recovery of the mortgaged
properties and suits for specific performance of awards.
The other class of suits is that, all suits other than that
mentioned above.
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Rane 13 / 14 CRA2652011 (sr.4)
25.6.2019
16. This Court in the case of
Smt. Shantabai
Mishra V/s. Kamalkant Laxmikant, 1970 Mh.L.J. 679
has explained the scope of Section 8 and has thus held :
“ 8. Courtfee value and
jurisdictional value to be the same in
certain suits
Where in suits other than those referred to
in [Paragraphs (v), (vi) and (x) and clause (d)
of paragraph (xi) in section 6 of the Bombay
Court Fees Act, 1959 courtfees are payable
ad valorem under the Bombay Court Fees Act,
1959] the value as determinable for the
computation of courtfees and the value for
purposes of jurisdiction shall be the same.”
17. Thus, the subject suit is neither for specific
performance of contract nor for declaration in respect of
ownership or for declaration envisaged under subclause
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Rane 14 / 14 CRA2652011 (sr.4)
25.6.2019
(d) of Clause (iv) of Section 6 of the Bombay Court Fees
Act. The present suit falls under other category of suits
and therefore value as determinable for computation of
courtfees is the same value for the purposes of
jurisdiction. It is for these reason, the enquiry under
Section 8 of the Bombay Court Fees Act is not required to
be ordered.
18. That for the reasons recorded hereinabove, no
material irregularity is committed by the trial Court in
exercise of its jurisdiction and therefore the revision
deserves no consideration and it is dismissed accordingly.
(SANDEEP K. SHINDE, J)
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Rane 1 / 14 CRA2652011 (sr.4)
25.6.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 265 OF 2011
Shri. Surendra Yashwant Deole,
Since deceased through his heirs
and legal representatives
1. Smt. Sunanda Surendra Deole
Age : 54 yrs, Occ : Housewife,
2. Ms. Sayali Surendra Deole
Age : 28 yrs, Occ : Service
3. Tejas Surendra Deole
Age : 24 yrs, Occ : Education
All R/at. 484/103, Mitra Mandal
Colony, Parvati, Pune411 009. ….Applicants
: V E R S U S :
1. Shri. Sudhakar Vinayak Sharangpani
Age : 68 yrs, Occ : Business
2. Sou. Usha Sudhakar Sharangpani
Age : 59 yrs, Occ : Housewife,
Both residing at : 484/103, Mitra
Mandal Colony, Parvati, Pune411 009.
3. Pune Municipal Commissioner
Having Office at Pune Municipal
Corporation Bhavan, Shivaji Nagar,
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Rane 2 / 14 CRA2652011 (sr.4)
25.6.2019
Pune411 005. ….Respondents
APPEARANCES :
Mr. S.S. Kanetkar, Advocate for the applicants.
Mr. Jaydeep Deo, Advocate for respondent no.2.
CORAM : SANDEEP K. SHINDE, J.
CORAM : SANDEEP K. SHINDE, J.
thth
Tuesday, 25 Tuesday, 25 June, 2019. June, 2019.
ORAL JUDGMENT :
ORAL JUDGMENT :
1. Heard learned Counsel for the parties.
2. Applicants who are the defendants in the
Regular Civil Suit No. 780 of 2009 instituted by
respondents no.1 and 2 (hereinafter called as “the
plaintiffs) had questioned valuation of the suit and
amount of fees payable under Section 6 of the Bombay
Court Fees Act (now, Maharashtra Court Fees Act) vide
::: Uploaded on - 11/07/2019 ::: Downloaded on - 01/04/2024 15:08:09 :::
Rane 3 / 14 CRA2652011 (sr.4)
25.6.2019
nd
application dated 2 December, 2009 and requested the
trial Court to reject the plaint under Order VII Rule 11
clause (b) of the Civil Procedure Code, 1908. Clause (b)
reads as under :
“11. Rejection of plaint .
(b) where the relief claimed is undervalued,
and the plaintiff, on being required by the
Court to correct the valuation within a time
to be fixed by the Court, fails to do so;”
3. The learned Judge rejected the said
th
application on 19 November 2010, against which this
Civil Revision Application under Section 115 of the Civil
Procedure Code, 1908 is preferred.
4. Heard learned Counsel for the parties,
perused the plaint, application and reply filed by the
plaintiffs and also the impugned order.
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Rane 4 / 14 CRA2652011 (sr.4)
25.6.2019
5. The plaint narrates that, the plaintiffs were the
tenant of Smt. Sudha Yashwant Deole in respect of Flat
No.4, BungalowNeelmani situated on Survey No.484,
Pune. Plaintiff states that, out of love and affection, Smt.
Sudha Yashwant Deole (hereinafter called “the landlady”
th
for short) in her registered Will dated 13 August, 1990
expressed her wish and thus permitted the plaintiff to
construct one room on the terrace above Flat No.4. It is
the plaintiff's case that, another Flat No.5 adjoining to
Flat No.4 was lease out by the landlady to the plaintiff
th
no.1 vide registered lease deed dated 20 November, 1991
and the plaintiffs were authorised and permitted to
construct and utilise the space above Flat No.5 also. The
th
plaintiffs relied on Clause9 of the lease deed dated 20
November, 1991, which reads as under :
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Rane 5 / 14 CRA2652011 (sr.4)
25.6.2019
“It is agreed that the terrace and the additional
F.S.I. upon the said Flat No.5 shall always be
deemed to be leased out perpetually under this
agreement in favour of the tenant. The tenant
shall have right to make additional permissible
construction upon the said terrace. In case of
any demolishing of the said building by any
misfortune or act of God or by any reason, the
tenant shall have right to reconstruct the said
flat as his own accords and without any
permission of the landlord.”
6. Plaintiffs would assert that, the landlady
appointed plaintiff no.1 as Executor of her Will and
expressed her desire in the Will that defendant no.1 shall
not make construction in and on open space around the
bungalow, “Neelmani”. Plaintiffs would further assert
that, defendant no.1 contrary to the wish of the landlady
sought permission of the Municipal Corporation to raise
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Rane 6 / 14 CRA2652011 (sr.4)
25.6.2019
the construction in and around the Bungalow, “Neelmani”
th
vide Commencement Certificate dated 10 July, 2008.
Plaintiffs were thus, apprehending circumvention of their
rights to utilise the space on the terrace, above Flats No.4
and 5. It is under these circumstances, they instituted
the suit and sought the following reliefs :
“(i)defendant no.1 has no right to make
construction over the property described in para
1(a) and above Flats No.3, 4 and 5 which are
housed in Bungalow, “Neelmani”.
(ii) It may be declared that the plaintiffs alone
have a right to construct a room and open terrace
above Flats No.4 and 5
(iii)that the plan sanctioned by the defendant no.2
(Corporation) be cancelled.
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25.6.2019
(iv) that the defendant be restrained from making
construction on an open space of the property
described in para1(a) i.e. bungalow, Neelmani.
7. It may be stated that the plaintiffs are
asserting their right to utilise the terrace above Flats
No.4 and 5 in terms of the Will and the lease deed
executed by the landlady in their favour.
8. The plaintiffs valued the suit at Rs.2,000/ for
reliefs and jurisdiction and paid the courtfees amount
accordingly. The defendants disputed the valuation and
requested the trial Court to hold enquiry under Section 8
of the Suit Valuation Act, 1987. It is the case of
defendants that, the plaintiffs are seeking specific
th
performance of the leasedeed dated 20 November, 1991
and ought to have valued the suit for courtfees and
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Rane 8 / 14 CRA2652011 (sr.4)
25.6.2019
jurisdiction in terms of Section 6(xi) of the Bombay Court
Fees Act. Their next objection is that, since the plaintiffs
are seeking declaration of their right to utilize the open
space above the Flats No.4 and 5, suit ought to have been
valued for courtfees and jurisdiction under Section 6(d) of
the Bombay Court Fees Act.
9. Thus, I am required to answer the following
issues;
(i) is the suit instituted by the plaintiffs is for
specific performance of contract or for
declaration of their rights.
(ii) whether the enquiry under Section 8 of
the Suit Valuation Act, 1987 is deserved to
be directed as sought by the petitioners
defendants ?
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Rane 9 / 14 CRA2652011 (sr.4)
25.6.2019
10. What plaintiffs are seeking herein is a
declaration of their right to utilise the space above Flat
No.4 and 5 as per the wish of the landlady, expressed by
her in will; and utilise the space above Flat No.5 as per
Clause (9) of the leasedeed.
11. In this case, the plaintiffs are neither seeking
specific performance of contract of sale nor of contract of
mortgage nor of contract of lease nor of award as
contemplated in Clause (xi) of Section 6 of the Bombay
Court Fees Act.
12. So far the first prayer in the suit is
concerned, the plaintiffs are seeking declaration that,
defendants do not have a right to utilise the open space
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Rane 10 / 14 CRA2652011 (sr.4)
25.6.2019
around the bungalow, “Neelmani”. This prayer is
obviously founded on the basis of contents of the Will of
the landlady. Therefore, here the plaintiffs are not
staking the claim in the property nor seeking enforcement
of rights therein.
13. So far as the second prayer is concerned,
the plaintiffs are seeking declaration of their right to
utilise the open space above Flat no.4 in accordance with
the desire and wish of landlady as expressed, in her Will.
The plaintiffs are also seeking declaration of their right to
utilise the space above Flat No.5 in terms of Clause (9) of
the leasedeed executed by the landlady. Admittedly, the
landlady lease out Flat No.5 to the plaintiffs in November,
1991 and since then plaintiffs are using and occupying
the said flat. It appears, vide Clause (9), (reproduced
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Rane 11 / 14 CRA2652011 (sr.4)
25.6.2019
hereinabove), the landlady permitted the plaintiffs to
make additional permissible construction upon the
terrace of Flat No.5. It is the plaintiff's case that,
contrary to the wish of the landlady, the defendants
secured permission for construction and thus they were
apprehending evasion of their rights to make permissible
additional construction on the terrace of Flat no.5. It is in
these circumstances, they sought a declaration of their
right with injunction.
14. It is therefore not a suit for specific
performance but for declaration with injunction and other
consequential reliefs. In other words, the suit is neither
subject to courtfees in terms of Clause(iv)(d) read with
(v) nor subject to Clause (xi) of Section 6 of the Bombay
Court Fees Act, but is subject to the provisions of Clause
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Rane 12 / 14 CRA2652011 (sr.4)
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6(iv)(e) and (j) of the Bombay Court Fees Act. The Issue
no.1 is answered accordingly.
15. So far as the enquiry as under Section 8 of
the Suit Valuation Act is concerned, it is clear from the
provisions of Section 8 that it divides the suit into two
Classes; one class of suits are those suits which are
referred to in paragraphs (v), (vi), (x) and Clause (d) of
paragraph (xi) in Section 6 of the Bombay Court Fees Act,
1959. These are the suits for possession of land, houses
and gardens, suits to enforce right of preemption, suits
against mortgages for recovery of the mortgaged
properties and suits for specific performance of awards.
The other class of suits is that, all suits other than that
mentioned above.
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Rane 13 / 14 CRA2652011 (sr.4)
25.6.2019
16. This Court in the case of
Smt. Shantabai
Mishra V/s. Kamalkant Laxmikant, 1970 Mh.L.J. 679
has explained the scope of Section 8 and has thus held :
“ 8. Courtfee value and
jurisdictional value to be the same in
certain suits
Where in suits other than those referred to
in [Paragraphs (v), (vi) and (x) and clause (d)
of paragraph (xi) in section 6 of the Bombay
Court Fees Act, 1959 courtfees are payable
ad valorem under the Bombay Court Fees Act,
1959] the value as determinable for the
computation of courtfees and the value for
purposes of jurisdiction shall be the same.”
17. Thus, the subject suit is neither for specific
performance of contract nor for declaration in respect of
ownership or for declaration envisaged under subclause
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Rane 14 / 14 CRA2652011 (sr.4)
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(d) of Clause (iv) of Section 6 of the Bombay Court Fees
Act. The present suit falls under other category of suits
and therefore value as determinable for computation of
courtfees is the same value for the purposes of
jurisdiction. It is for these reason, the enquiry under
Section 8 of the Bombay Court Fees Act is not required to
be ordered.
18. That for the reasons recorded hereinabove, no
material irregularity is committed by the trial Court in
exercise of its jurisdiction and therefore the revision
deserves no consideration and it is dismissed accordingly.
(SANDEEP K. SHINDE, J)
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