Allowed

Maruti Vikas Enterprises v. Jitendra N. Patel@ Pokar and Other

Bombay HC11 Aug 2010CRA/102/2010

Case brief

AI extract

What is this about?

The High Court allowed a Civil Revision Application holding that the City Civil Court lacked pecuniary jurisdiction. The Court ruled that the suit's true nature involved declaring agreements as benefits from land exceeding the valuation limit, necessitating a return of the plaint.

What did the court decide?

Impugned order quashed and set aside; the suit returned to the High Court because it exceeded the City Civil Court's pecuniary jurisdiction.

Maruti Vikas Enterprises Vs Jitendra N. Patel@ Pokar and… — Property and Title | Bombay HC (2010)

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Anand

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO.102 OF 2010

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Maruti Vikas Enterprises ..Applicant
a registered Partnership Firm
having its registered office
at B/2, Gurudutt, 2nd floor,
Patel Chowk, Ghatkopar (East),
Mumbai � 400 077.

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 V/s.

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1.Jitendra N. Patel ..Respondents
alias Pokar
Aged 58 years
residing at Pokar Niwas
at Gandhi Nagar, Off.
LBS Marg, Ghatkopar (West)

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2.Municipal Corporation of
Greater Mumbai
a statutory body corporation
having its office at
Mahapalika Building,
Mahapalika Marg,
Mumbai � 400 001.

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Mr.J.J.Thakkar, Advocate, for the Applicant
Mr.A.Y.Sakhare, Senior Counsel with Ms Anita
Castelino h/f.Diwakar Dwivedi, Advocate, for
Respondent No.1

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Smt.K.K.Soraan, Advocate, for MCGM

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CORAM:R.C.CHAVAN, J.
JUDGMENT RESERVED ON :28TH JULY, 2010
JUDGMENT PRONOUNCED ON:11TH AUGUST, 2010

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JUDGMENT

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.This Civil Revision Application,

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directed against Judgment of the learned Judge
of the City Civil Court in Long Cause Suit No.
1653 of 2009 answering preliminary issue about

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his jurisdiction to try the suit, is being
disposed of finally at admission stage by

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consent of parties.

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2.Facts which are material for deciding
this Civil Revision Application are as

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under :-

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The Respondent No.1 � original

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Plaintiff, Jitendra N. Patel is owner of an
old dilapidated building having 38 residential

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units and six shops occupied by tenants. He
entered into a Development Agreement with the

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Applicant- original Defendant No.1 on 21st

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April, 2005 for demolition and reconstruction

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of the building. According to averments in

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the plaint (which alone are material for

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deciding this Civil Revision Application),

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since Applicant did not make any progress in
re-development, possibly for want of funds,
Respondent No.1 � original Plaintiff entered
into negotiations with M/s. Ashapura
Construction Company (not a party) for
redevelopment. They issued a public notice,
upon which the present Applicant raised an
objection, inspite of which, Plaintiff entered

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into an Agreement with M/s. Ashapura
Construction Company on 26th December, 2006.

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When M/s. Ashapura Construction Company also
did not comply, Plaintiff reached a fresh
Memorandum of Understanding with M/s. Deep
th
Construction Company (not a party) on 30
April, 2007, valued at Rs.6,66,00,000/-.

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Since this Memorandum of Understanding too did
not fructify, M/s. Deep Construction Company
filed suit No.172 of 2009 on the Original Side

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of High Court, Bombay. In that suit, the
Applicant has been ordered to be joined as
Defendant No.1.

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3.According to the Plaintiff, the

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present Applicant tried to take forcible
possession and since police took no action of

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Plaintiff'scomplaint,Plaintifffiled

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Criminal Writ Petition No.1806 of 2009 before

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this Court. Applicant put up a board stating
he was re-developing the property, placed
security guards, obtained consents of tenants
as also an intimation of disapproval from

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Respondent No.2 � Municipal Corporation of
Greater Mumbai (original Defendant No.2) on
21st January, 2009, and started demolition.

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Plaintiff alleged that Applicant had committed

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breaches of terms of Agreement dated 21st
April, 2005. The Plaintiff claimed a

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declaration that Intimation of disapproval was
obtained by the Applicant from Defendant No.2

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� Municipal Corporation of Grater Mumbai in a
fraudulent manner and therefore sought its
cancellation. He also sought a declaration

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that Agreements between Applicant and tenants

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are null and void. He claimed interim

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injunction to restrain Applicant from entering
into Agreements with tenants, demolishing five
rooms in Plaintiff's possession and from
trespassing over the property. He valued the
suit under Section 6(iv)(j) of the Bombay
Court Fees Act.

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5.The Applicant raised an objection to

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jurisdiction of the Court and sought it to be
decided as a preliminary issue under Section
9A of the Code of Civil Procedure, 1908 by
taking out Notice of Motion No.1726 of 2009,

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which has been rejected by the impugned order.

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6.I have heard both the learned Counsel

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for the Applicant and Respondent No.1, as also

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the learned Counsel for Respondent No.2 �

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Municipal Corporation of Greater Mumbai.

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7.The learned Counsel for the Applicant

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submitted that though jurisdictional issue has

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to be decided with reference to averments in

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the plaint, though the Plaintiff has by

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cleverly drafting the plaint tried to get over
payment of Court fees, the Court cannot ignore

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what it would be required to decide. He

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submitted that even under the Agreement with
Applicant, Plaintiff had received Rs.
2,00,000/- as consideration. Under that
Agreement 56% of the new construction was to

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be given to Plaintiff. Plaintiff's Memorandum
of Understanding with M/s. Deep Construction
Company is for Rs.6,66,00,000/- and, the value

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of Plaintiff's share in new construction would
be more than Rs.3,00,000,00/-, beyond the
jurisdiction of City Civil Court.

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8.On the other hand, the learned Counsel

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for the original Plaintiff (Respondent No.1
here) submitted that neither Agreement with

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Applicant, nor that with M/s. Deep

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Construction Company, is subject matter of the

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suit. The declaration claimed is that

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Applicant obtained Intimation of disapproval
from Municipal Corporation of Greater Mumbai
fraudulently, and seeks its cancellation.
This is about performance of statutory
obligation by Respondent No.2 � Municipal
Corporation of Greater Mumbai and therefore,
not susceptible to monetary valuation.

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9.Both the learned Counsel relied on a

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number of Judgments in support of their

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respective contentions. Before going to those
Judgments it may be necessary to first clear

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the confusion in paragraph 7 of the impugned

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order about presumption in favour of
jurisdiction of a Civil Court. A Civil Court
will always be presumed to have jurisdiction
to decide a dispute of a Civil nature unless

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its jurisdiction is barred by any express
statutory provision. This presumption is

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about jurisdiction of Civil Courts as a genus

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� a family. This does not imply that any

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Civil Court may presume jurisdiction in
respect of any dispute of Civil nature.

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Jurisdiction of a specific Civil Court will
have to be determined with respect to the
territorial limits for which it is established
as also the pecuniary jurisdiction conferred
upon it, about which there is no presumption
and is expressly a matter of examination by
the Registry even before a suit is placed for
first orders before the Court. The learned
Judge is, however, right in observing that
jurisdiction is to be decided with respect to
plaint averments and not defences that may be
raised.

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10.With this prelude let me refer to the
Judgments on which both the learned Counsel
relied. In Nagin M. Dagli v. Haribhai M.
Patel, reported in1979 Bom.C.R.348, a
Division Bench of this Court observed that

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when nature of suit is to be determined the
Court has to look at the real substance of the

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suit and not legal ingenuity in drafting the
plaint. Facts and other observations in the
Judgment are not relevant for deciding this

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Civil Revision Application.

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11.There can be no dispute about the
proposition that jurisdiction of a Court,
though a mixed question of fact and law would
have to be decided first, with reference to
averments in the plaint, before considering
any prayer for injunctive relief in view of
provisions of Section 9A of the Code of Civil
Procedure, 1908. This is what is held by

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another Division Bench in Meher Singh Versus

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Deepak Sawhny & another, reported in
1999(1)Bom.C.R.107, on which the learned

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Counsel for the Applicant relied.

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12.In Mrs. Mani Seervai Vs. Smt. Tulsibai

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Hiranand Achhipalia & ors, reported in 2006(3)
ALL MR 104, a learned Single Judge referred to
Judgment in Meher Singh (Supra). In that

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case, the question was of giving opportunity
to the parties to lead evidence on the issue
of jurisdiction. In this case, as observed in
the impugned order, the parties wanted the
issue to be decided on the basis of material

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on record.

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13.In N.V.SRINIVASA MURTHY AND OTHERS

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Versus MARIYAMMA (DEAD) BY PROPOSED LRS. AND

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OTHERS, reported in (2005) 5 Supreme Court
Cases 548, the Supreme Court held that
omitting to claim a relief by clever drafting

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in order to get over the bar of limitation and
payment of ad valorem in Court fee would make
the plaint liable to rejection. Again in
HARDESH ORES (P) LTD. Versus HEDE AND COMPANY,
reported in (2007) 5 Supreme Court Cases 614,
the Supreme Court held that a plaint would be
liable to be rejected under Order VII, Rule 11
of the Code of Civil Procedure, 1908 on the

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ground of limitation only where from the
plaint averments the suit appears to be

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barred, and that real dispute cannot be

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camouflaged.

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14.As rightly pointed out by the learned
Counsel for Respondent No.1 the question
whether the plaint could be rejected for want
of a cause of action (or bar of limitation)
needs to be distinguished from the question of
valuation, though in N.V.SRINIVASA MURTHY AND

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OTHERS Versus MARIYAMMA (DEAD) BY PROPOSED
LRS. AND OTHERS, reported in (2005) 5 Supreme
Court Cases 548 there is a reference to
avoidance to pay ad valerem Court fees. At
this stage it is not necessary to go into the
question whether on the pleadings raised, the
Plaintiff could be granted the reliefs
claimed, as it would amount to going into
merits of the matter. If relief of

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declaration that intimation of disapproval was
fraudulently obtained cannot be granted
without a declaration that Agreement of
Plaintiff with Applicant is unenforceable, or

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has expired, or does not subsist, and the
Plaintiff has consciously chosen not to seek
any relief in respect of his Agreement dated
21st April, 2005 with Applicant, the Plaintiff
would bear the consequences.

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15.Judgments in Volition Investment Pvt.
Ltd. Versus Madhuri Jitendra Mashroo &
another, reported in 2003(5) Bom.C.R.262 and
Chheda Housing Development Corporation Versus
Bibijan Shaikh Farid & ors, reported in
2007(2) Bom.C.R.587 would have been relevant
only if agreement dated 21st April, 2005 was in
question which, as already observed, is not
questioned. But the learned Counsel for the
Applicant rightly submitted that Plaintiff had
sought a declaration that agreements with
tenants are null and void, which in view of
these two Judgments can be enforced and are
held to be benefits arising out of land, and
therefore, immovable property. This aspect
would therefore have to be looked into. He

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placed two such agreements for my perusal,

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each of which is valued at more than Rs.

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1,00,000/-. The learned Counsel for the

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Applicant further submitted that this aspect
should not have been overlooked by the learned
Trial Judge.

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16.The learned Senior Counsel for

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Respondent No.1 � original Plaintiff relied on
Judgment of this Court in Rajaram Bhagwati

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Tiwari & others Versus Municipal Corporation

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of Greater Mumbai & others, reported in
2004(Supp.2)Bom.C.R.891, which relies on
Judgment in Vrindavan (Borivali) Co-operative

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Housing Society Limited Versus Karmarkar
Brothers & others, reported in 1983(2)Bom.C.R.
267 and Judgment in Jafferali Alibhai and Anr.
Vs. S.R.Dossa & Co. and Anr., reported in 1969

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BCI(0)26. It has been held that when the
relief claimed is enforcement of a statutory
obligation, suit is correctly valued under
Section 6(iv)(j) of the Bombay Court Fees Act.

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These Judgments would have been applicable had
the Plaintiff claimed only the declaration

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th
that intimation of disapproval dated 25
January, 2009 issued by Respondent No.2 was
obtained in fraudulent manner, since the
question would then be as to whether
Respondent No.2 discharged its statutory
obligations properly. Here Respondent No.1 �

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original Plaintiff has also claimed a
declaration that agreements entered into by

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Applicant with tenants for giving alternate
accommodationareillegal.Without
enumerating the claims in those agreements and

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valuing the claims accordingly, such a
declaration could not have been claimed. As
pointed out by the learned Counsel for the
Applicant, each of the two Agreements produced
for perusal are valued at more than Rs.
1,00,000/-. This was specifically stated even
before the learned Judge, City Civil Court in

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Affidavit in rejoinder (though not in

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Affidavit in support of Notice of Motion).

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cannot be sustained. The learned Trial Judge

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should have held that the suit was not
properly valued and that it had to be valued
at more than Rs.50,000/- and thus beyond the
jurisdiction of the City Civil Court.

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18.The Civil Revision Application is
allowed. Impugned order is quashed and set
aside, holding that City Civil Court had no
jurisdiction to try the suit and directing the
learned Judge to pass consequential orders of
returning the plaint.

Maruti Vikas Enterprises v. Jitendra N. Patel@ Pokar and Other

Case brief

What is this about?

What did the court decide?

Maruti Vikas Enterprises v. Jitendra N. Patel@ Pokar and Other

Case brief

What is this about?

What did the court decide?

What the court decided

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