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Hasham Ismail Mamsa Vs. Municipal Corporation of Greater Bombay - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtMumbai High Court
Decided On
Case NumberAppeal No. 405 of 1969
Judge
Reported inAIR1971Bom215; ILR1971Bom626; 1971MhLJ684
ActsCode of Civil Procedure (CPC), 1908 - Sections 21 - Order 7, Rule 10 - Order 39, Rule 4; Bombay Court-fees Act, 1959 - Sections 6, 8, 9, 10 and 11; Suits Valuation Act, 1887 - Sections 8; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947; Bombay Municipal Corporation Act - Sections 527; Constitution of India - Articles 14 and 19(1)
AppellantHasham Ismail Mamsa
RespondentMunicipal Corporation of Greater Bombay
Appellant AdvocateR.W. Adik and ;Vasantrao R. Bhandare, Advs.
Respondent AdvocateK.K. Singhavi and A.D. Desai, Advs.
Excerpt:
- - 3161 of 1969 in bombay city civil court, returning the plaint for presentation to the proper court and involves an interesting question of law with regard to the proper valuation of the above suit. it is well settled that it is the plaintiff's valuation of his plaint which prima facie determines the jurisdiction of the court and not the amount which may be found or admitted by the court......and servants. the plaintiff says and submits that pending the hearing and final disposal of the suit the defendants, their officers, servants and agents be restrained by an order and injunction of this honourable court in the terms aforesaid. the plaintiff says that unless the defendants, their officers, servants and agents are so restrained, irreparable harm and substantial loss will be caused to the plaintiff'.but these averments are all consequential to the facts as stated by the plaintiff relating to the unsettled accounts between the plaintiff and the defendants. the plaintiff, therefore, valued the suit in paragraph 13 of the plaint stating as follows :--'the plaintiff in terms of prayers (a) and (b) prays for account from the defendants and values the said reliefs at rs......
Judgment:

1. This is an appeal against an order dated August 5, 1969 passed by His Honour Judge Guttal. in Suit No. 3161 of 1969 in Bombay City Civil Court, returning the plaint for presentation to the proper court and involves an interesting question of law with regard to the proper valuation of the above suit.

2. The plaintiff is the owner of immovable properties bearing E Ward Nos. 3822(7), 3823 (1), 3823 (1A) and 3823 (IB) in street No. 97, Moreland Road, Bombay. On April 29, 1969, the plaintiff filed the above suit alleging that prior to 1953, the said properties and other properties were jointly owned by the plaintiff, his brother Azam Ismail Mamsa and sister-in law Srimati Rasulbibi, the wife of the elder brother of the plaintiff named Mahomed Ismail Mamsa. In a partition in the family the above properties were allotted to the share of the plaintiff. The taxes in respect of the said properties were being paid from time to time to the Bombay Municipal Corporation. Dispute started between the Bombay Municipal Corporation and the plaintiff in April 1950 with regard to the rateable value fixed by the Assessor of the Corporation. On receipt of the bills after further correspondence, the plaintiff filed appeals Nos. M 183 to M 192 of 1964 before the Chief Judge of the Court of Small Causes at Bombay and when the said appeals were about to reach hearing, a settlement was arrived at between the plaintiff and the Municipal Corporation subject to a review as a result of a case to be decided by the Supreme Court in the appeal filed by the Life Insurance Corporation of India, because the Municipal Corporation had included while calculating the rateable value the increases permitted to the landlord under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court had taken the view that the Municipal Corporation was not authorised to include the permitted increases and that view was upheld by the Supreme Court in the appeal and in view of these disputes regarding the rateable value, the Municipal Corporation by a letter dated May 17, 1967 mentioned the terms on which the appeals should be settled. The plaintiff accepted the terms of settlement and allowed the said appeals to be withdrawn and on the basis of the said settlement, the bill collector of the Municipal Corporation rectified the rateable value and necessary alterations were made in the bills.

3. The plaintiff further alleged that in accordance with the said settlement and altered bills, a sum of Rupees 1,40,578.44 was demanded by the Municipal Authorities as property taxes for the period from April 1, 1950 to March 31, 1968. The particulars of the demands and the bills are annexed to the plaint in a list Ex. C showing the ward number, bill number, period of the bill and the amount demanded under the bills. The plaintiff further alleged in paragraph 5 of the plaint that from 1950 to 1953. a total sum of Rs. 30,051/- was paid as taxes. From November 25, 1953 to February 27. 1959. the plaintiff paid an aggregateamount of Rs. 30,500/- and on account of disputes, no payment was made from 1959 to 1967. But from March 31, 1967 to April 29, 1969, the plaintiff made payments from time to time to the Municipal Authorities aggregating to Rupees 63,300/-. Thus in all, according to the plaintiff, he paid a sum of Rs. 1,23,851/-. The particulars of his payments are shown in a statement annexed to the plaint and marked Ex. D.

4. As the disputes were not finally settled, the plaintiff filed a suit in the Bombay City Civil Court, being Suit No. 108 of 1966, for a declaration that till the complaints of the plaintiff were investigated in accordance with the Bombay Municipal Corporation Act, notices of demand should not be issued against the plaintiff for recovery of the alleged property taxes. It appears that after the filing of the suit, the complaints made by the plaintiff were finally disposed of and the aforesaid settlement was arrived at between the plaintiff and the defendants. The plaintiff further alleged that on November 1, 1948. two sheds bearing Nos. 15 and 16 bearing municipal No. 97E were destroyed by fire and in spite of this the Municipal Corporation Authorities levied property taxes in respect of those sheds from November 1, 1948 and a fresh dispute arose between the plaintiff and the Municipal Corporation regarding the levy of the said taxes. The plaintiff demanded refund of the taxes, but the Municipal Corporation refused to do so. According to the plaintiff he was entitled to a refund of Rs. 5200/- wrongly recovered by the Municipal Corporation in respect of the said sheds and the plaintiff was further entitled to claim a refund from the defendants in the aggregate amount of Rs. 22,238.81 as per statement annexed to the plaint as Ex. F. The plaintiff, therefore, submitted that if proper accounts are taken with regard to the amounts due to the Municipal Corporation by the plaintiff, and the amounts paid by the plaintiff, part of which is refundable to the plaintiff, Rs. 5511.05 belonging to the plaintiff would be found lying as deposit with the Municipal Corporation with respect to recovery of taxes upto the period ending with March 31, 1968. The plaintiff has annexed a statement to the plaint as Ex. G as particulars of the said sum of Rs. 5511.05. The plaintiff further alleged in paragraph 10 of the plaint that in spite of these facts, the authorities of the Municipal Corporation were threatening to recover from the plaintiff 17 bills which were followed by 17 notices of demand by process under the provisions of the Bombay Municipal Corporation Act, and grave and irreparable loss would be caused to him if the action threatened by the Municipal Corporation Authorities was carried out notwithstanding the liability of the Munici-pal Corporation to return the amount of Rs. 5511.05 after giving proper accounts, It was further stated in the plaint that Section 527 of the Bombay Municipal Corporation Act did not apply to the facts of the case because the notices of demand issued by the Bombay Municipal Corporation on account of the non-payment of the above 17 bills which have been specifically included in Ex. C referred to above, were ultra vires and illegal and contrary to the provisions of the Act. It Was also submitted that Section 527 of the Bombay Municipal Corporation Act was illegal and ultra vires the Constitution as it violates the fundamental rights guaranteed to the plaintiff under articles 14 and 19(1)(f) of the Constitution of India.

5. In view of these allegations, the plaintiff filed the above suit against the Municipal Corporation praying inter alia

'(a) That the Defendants may be ordered and directed to render to the plaintiff the account of the aforesaid payments from time to time made to the defendants for property taxes of the plaintiff's said immovable properties and on taking up such account to pay to the plaintiff such amount as may be found due and payable by the Defendants to the Plaintiff.

(b) That it may be declared that the amount of property taxes for which the said bills are from time to time served on the Plaintiff is paid to the Defendants and nothing is due and payable by the plaintiff to the defendants for the property taxes for the period upto 31st March 1968.

(c) That the defendants, their Officers, servants and agents be restrained by an order and Injunction of this Honourable Court from taking any coercive action for recovery of the property taxes for the period upto 31st March 1968 and from attaching or selling the plaintiff's said immovable properties.....'.

6. After filing the suit, the plaintiff took out the Notice of Motion praying for an interim injunction restraining the defendants from using the coercive process against the plaintiff for recovery of taxes upto March 31, 1968 and from attaching or selling the plaintiff's immovable properties. The said Notice of Motion was supported by an affidavit filed by the plaintiff wherein he reiterated the contents of the plaint and prayed for an interim injunction on the ground that in view of the allegations made in the plaint, nothing was to be recovered from the plaintiff and the defendants were liable to account and pay the aforesaid sum of Rs. 5511.05 if not more.

7. The said Notice of Motion was opposed by the Municipal Corporation. An affidavit in reply was filed by one Eoshanali Jivabhai Virpurawala, describ-ed as Assistant Assessor and Collector of the defendants, contending inter alia that the City Civil Court had no jurisdiction to entertain the suit and that the value of the reliefs claimed in the suit for purposes of court fees and jurisdiction made in paragraph 13 of the plaint was altogether wrong, that the suit was barred by law of limitation and that the total sum to be recovered in respect of the 17 bills referred to above was Rs. 1,40,578.44 as property taxes for the period from April 1, 1950 to March 31, 1968 and that although all adjustments were given for the payments made by the plaintiff, still a sum of Rs. 84,627.81 was due and payable by the plaintiff.

8, The said Notice of Motion came up for hearing before His Honour Judge Guttal. It may be noted that an ex parte interim injunction was granted as prayed for by the plaintiff on April 29. '1969 and the Notice of Motion came up for final hearing before His Honour Judge Guttal on August 5, 1969. The learned Judge passed the order returning the plaint on this Notice of Motion on the ground that the suit was in respect of a subject matter the value of which exceeded the pecuniary jurisdiction of the Court, inasmuch as,

'Although on a superficial view, the suit appears to be a suit for accounts, in substance the plaintiff has claimed a relief in respect of 17 notices and a consequential relief restraining the defendants from enforcing those notices. It is common ground that those notices are in respect of property taxes amounting to Rs. 1,40,578.44 P.'

Curiously, even though the learned Judge passed an order returning the plaint, he also proceeded to hold that the suit filed on July 26, 1966 was barred under Section 527 of the Bombay Municipal Corporation Act.

9. Feeling aggrieved by the said I order, the plaintiff has filed the above appeal. It must be stated at the outset that it was irregular on the part of the learned Judge to have proceeded to return the plaint for presentation to the proper Court when all that was before him for final hearing was the Notice of Motion taken out by the plaintiff. It is true that under Section 21 read with Order 7, Rule 10 of the Civil Procedure Code, the defendant has to take an objection with regard to pecuniary jurisdiction at the earliest possible opportunity and the Court has power at any stage of the suit to return the plaint to be presented to the Court in which the suit should have been instituted. But when a Notice of Motion is placed in the City Civil Court for hearing, the hearing must normally be confined to the hearing of the Motion and ordinary order that could be passed, according to the practice ofthat Court, is either to make the Motion absolute or to reject the Motion or to make such other interlocutory orders as may be considered just and proper. The Motion is essentially an interlocutory application not involving the final hearing and disposal of the suit. If the Court felt that the suit was under-valued, the proper order that should have been passed was to direct that the Motion should be heard along with the suit when the Court hears such suits fixed for final hearing and disposal. After the said suit is placed for final hearing, the Court is expected to follow the procedure laid down under Sections 8, 9, 10 and 11 as the case may be. Such questions could not be disposed of at the time of the hearing of the Notice of Motion.

10. Even though that may be the normal practice, it cannot be said that the order passed by the learned Judge is illegal merely because he did not follow the practice, and hence, it is necessary to consider the validity and propriety of the order made by the learned Judge.

11. Mr. Adik, the learned counsel for the appellant, contended that the order passed by the learned Judge is based on a misconception of the nature of the suit filed by the plaintiff. The learned Judge, according to Mr. Adik. was wrong in holding that the essential nature of the suit was a suit in which declaration to obtain adjudication against recovery of money from the plaintiff on account of taxes, was prayed for. Mr. Adik submits that the suit was essentially a suit for accounts, which fell within the provisions of Section 6(iv)fi) and not Section 6(iv)(a) of the Bombay Court-fees Act, 1959.

12. Mr. Singhavi, the learned counsel for the defendants, on the other hand, contended that the learned Judge was quite right in holding that the suit was in substance a suit which fell under Section 6(iv)(a) and hence the value for purposes of court-fees and jurisdiction of that suit must be on the basis of the amount of taxes which remain to be recovered from the plaintiff, viz.. Rupees 84,627.81. Mr. Singhavi submitted that the form in which the plaintiff had filed the suit would not be conclusive of the matter because the relief for accounts was merely a subterfuge for the real and substantial relief asked for by the plaintiff, viz., against the recovery of taxes under 17 bills for the period ending with March 31, 1968.

13. In my judgment, the contention raised by the appellant must prevail because the learned Judge was not right in holding that the suit was substantially a suit for relief against recovery ol the taxes due amounting to a sum exceeding the pecuniary jurisdiction of the City Civil Court. For determining thenature of the suit, one must look at the plaint. The plaint in effect is mainly directed against the accounts between the parties. The plaintiff has set out the sum due. according to the defendants, in the statement at Ex. C. whose total la Rs. 1,40,578.76. The plaintiff has also set out a statement showing various amounts paid to the Municipal Authorities from time to time at Ex, D amounting to Rs. 1,23,851.00. He has set out a statement of the amounts claimed by the plaintiff from the Corporation as due and payable by the Corporation to the plaintiff in the sum of Rs. 22,238.81 as per particulars at Ex. F and has summarised the position of accounts as made out by him at Ex. G as follows :--

'(1) Amount due under

the various bills as per

statement 'C'.Rs. 1.40.578.76.(2) Total taxes paid from

25-11-1953 to 26-4-1969

as per statement 'D'Rs. 1,23.851.00.(3) Amount refundable to

plaintiff as per statement

Ex. F.Rs. 22,238.81(4) The difference pay-

able to the plaintiff.Rs. 5,511.05'.

In substance, therefore, the suit is essentially a suit for accounts on the allegation that the defendants have recovered more than what was due from the plain-tiff.

14. It is true that in paragraph 10 of the plaint, the plaintiff has referred to the 17 notices of demand dated March 14, 1968 issued by the defendants to re-cover the property taxes due for the period from October 1, 1959 to March 31, 1968 and it is the contention of the defendants that these 17 notices of demand are in respect of a total claim of Rupees 1,40,778.74. The plaintiff has further referred in the said paragraph to the fact that as the accounts were not made up between the plaintiff and the defendants, the position with regard to the property taxes, if any, was not clear to the plain-tiff and has further averred-

'The plaintiff says that in view ol the facts stated above the said notices ol demand dated 14th March 1968 are illegal, arbitrary and unjustified. The plaintiff says that in the circumstances the defendants are not entitled to enforce the said notices or to take any action in implementation or enforcement thereof. The plaintiff says that the Officers of the Defendants in their zeal to collect the taxes rightly or wrongly are threatening to issue warrants of attachment against the said properties of the plaintiff. The plaintiff says that if the saidproperties are attached, the plaintiff's reputation as a businessman will be ruined and grave harm and irreparable injury will be caused to the plaintiff. In the premises the plaintiff submits that the defendants, their officers and servants and agents be restrained by an order and Injunction of this Honourable Court from taking any coercive action and to attach and sell the plaintiff's said properties in the exercise of the summary powers of the defendants. The plaintiff says that pecuniary compensation is not an adequate relief for the wrong threatened by the defendants, their Officers and servants. The plaintiff says and submits that pending the hearing and final disposal of the suit the defendants, their Officers, servants and agents be restrained by an Order and injunction of this Honourable Court in the terms aforesaid. The plaintiff says that unless the defendants, their officers, servants and agents are so restrained, irreparable harm and substantial loss will be caused to the plaintiff'.

But these averments are all consequential to the facts as stated by the plaintiff relating to the unsettled accounts between the plaintiff and the defendants. The plaintiff, therefore, valued the suit in paragraph 13 of the plaint stating as follows :--

'The plaintiff in terms of prayers (a) and (b) prays for account from the defendants and values the said reliefs at Rs. 5,600/-. The plaintiff undertakes to pay further court fees if more amount is found due and payable by the defendants to the plaintiff on taking up such account. The plaintiff values reliefs (c) and (d) at Rs. 1,000/- being the loss likely to be suffered by the plaintiff as a result of the said threatened action of the defendants. The value of the subject-matter of the suit for the purpose of jurisdiction and Court fees is Rs. 6,600/-.'

15. In reply to these allegations In the plaint, what is stated in the affidavit in reply on behalf of the defendants is merely as follows :--

'I submit that the suit is not properly valued for the purposes of Court fees and jurisdiction. I submit that this Honourable Court has no jurisdiction to entertain the suit. I say that the valuation of the reliefs claimed in the suit for (the purposes of court fees and jurisdiction made in para 13 of the plaint is altogether wrong'.

It is further stated in the said affidavit in reply that after giving all the adjustments, there is still due a sum of Rupees 84,627.81 by the plaintiff to the defendants.

16. But the value of the suit is to be determined not with reference to the contentions raised by the defendants. It is well settled that it is the plaintiff's valuation of his plaint which prima facie determines the jurisdiction of the Court and not the amount which may be found or admitted by the Court. See Lakshman v. Babaji (1874) ILB 8 Bom 31; Ishwarappa v. Dhanji Bhanji. ILR 56 Bom 23 = AIR 1932 Bom 111. It is also laid down by this Court in Krishanji Vinayak Belapurkar v. Motilal Magandas. 31 Bom LR 476 = (AIR 1929 Bom 337) that where in a suit for accounts, the plaintiff values his claim at less than the maximum amount determining the pecuniary jurisdiction of a court In which the suit is filed and the amount found due on taking the accounts exceeds the said amount, the Court has power to pass a decree for that amount. It appears that the attention of the learned Judge in the City Civil Court was not brought to these cases and he gave too much importance to the contentions raised by the defendants with regard to the amounts which, according to the defendants, were still due from the plantiff.

17. As stated above, the suit is essentially a suit for accounts as the dispute between the plaintiff and the defendants can be settled only after taking accounts. The plaintiff has paid court-fee and valued the suit as a suit falling under Section 6(iv)(i) which lays down that the amount of fee payable under the Bombay Court-fees Act. 1959 should be computed according to the amount at which the relief sought is valued in the plaint, subject to the provisions of Section 8 and subject to a minimum fee of Rs. 20/-. Section 8 gives the power to the Court to hold an enquiry as to valuation of suits. The contention raised on behalf of the defendants that it is a suit which falls under Section 6(iv)(a) because the plaintiff has also asked for an injunction restraining the defendants from recovering the taxes, is not correct, because that clause only deals with suits for declaration to obtain adjudication against recovery of money from the plaintiff, etc. In the present case, the plaintiff is not asking for a declaration to obtain adjudication against recovery of money from, the plaintiff. He wants a declaration or adjudication that the money is already recovered and the defendants are overpaid. It is not the same thing as ad-Seduction against recovery of money. Supposing there was a simple claim where the plaintiff were to say that Rs. 10,000/-were due as taxes and the Municipal Corporation had recovered through error Rs. 11,000/- and hence the plaintiff was entitled to refund of Rs. 1000/-, such a suit cannot be considered as a suit for declaration to obtain adjudication against recovery of money from the plaintiff.

Nevertheless, if what the plaintiff, as stated in the present plaint, claims is a declaration, after taking accounts, it would be necessary to restrain the defendants from recovering the taxes under the 17 notices of demand in respect of the period from April 1950 to March 31, 1968. The prayers (c) and (d) in the plaint are necessarily, therefore, incidental reliefs. which must follow if the plaintiff is entitled to get the reliefs prayed for In prayers (a) and (b). I have, therefore, no doubt in holding that the instant suit falls not under section 6(iv)(a), as held by the learned Judge, but it falls under Section 6(iv)(i). as contended by the plaintiff. It is, however, still open to the City Civil Court to hold an enquiry, if it considers so fit, under Section 8 of the Act.

18. At the same time, it must be held that it cannot be said that the real nature of the suit is that of a multifarious suit within the meaning of Section 18 having regard to the substance of the allegations made in the plaint. As held in Ishwarappa's case. ILR 56 Bom 23 = AIR 1932 Bom 111 in a suit for accounts it is for the plaintiff to fix the value of the relief sought in his plaint under Section 8 of the Suits Valuation Act, 1887, it is the value so fixed that determines the jurisdiction of the Court and not any, contention raised by the defendant. The learned Judge was, therefore, in error in coming to the conclusion that the suit was in respect of the subject-matter, the value of which exceeded the pecuniary jurisdiction, of the City Civil Court. The subject-matter which, he referred to was the amount of Rs. 1,40,578.44 demanded under the 17 notices of demand. Those notices of demand referred to the 17 bills beginning from bill No. 10946 and ending with bill No. 10964 in the statement Ex. C annexed to the plaint. The learned Judge appears to have fallen into the error as a result of his ignoring the essential fact of inclusion of the said bills in Ex. C. It has been even held in Krishnaji's case. 31 Bom LR 476 = AIR 1929 Bom 337 referred to above that the jurisdiction of a subordinate Judge depended on the valuation of the claim as made in the plaint and that especially in a suit for accounts, the jurisdiction to pass a decree for more than five thousand rupees was not excluded when it was found on taking accounts that a sum of more than five thousand rupees was due.

19. In view of these authorities and what I consider to be the essential nature of the suit, the order passed by the learned Judge must be set aside. The learned Judge acted without jurisdiction in deciding the point of limitation even though he came to the conclusion that he had no jurisdiction to decide the suit. Hence that finding also mustbe set aside. The suit must, therefore, be restored. The Notice of Motion is also restored and is directed to be heard and disposed of in accordance with law and the observations made in this judgment within two weeks after the receipt of the writ of this Court in the City Civil Court. In the circumstances of the case, there shall be an interim injunction restraining the defendants from taking any coercive action for recovery of the property taxes due from the plaintiff for the period upto 31st March 1968 till the hearing of the Motion by the City Civil Court. Parties to bear their own costs. In view of the above orders, rule in civil application No. 3073 of 1969 discharged with no order as to costs.

20. Order accordingly.


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