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Balgonda Appanna Parvate Patil Vs. Ramgonda Shivgonda Patil - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number Appeal from Order No. 417 of 1968
Judge
Reported in(1969)71BOMLR582; 1970MhLJ641
AppellantBalgonda Appanna Parvate Patil
RespondentRamgonda Shivgonda Patil
DispositionAppeal dismissed
Excerpt:
.....be declared to be illegal and not binding on the plaintiff and and there can be no doubt that the civil judge was clearly wrong in applying the provisions of section 6(iv)(d) to this suit. 3,000 and that even adding the value of the claim for mesne profits, the suit was well under rs. it is also well established that the valuation put by the plaintiff prima facie determines the jurisdiction of the court unless the suit is obviously over-valued and such over-valuation is mala fide. shrikhande relied on these observations and argued that there was no law which compelled the plaintiff to value the suit in any particular way and if the plaintiff, who has the choice having regard to the nature of the suit and the reliefs which he wanted, thought it desirable that his case should be heard by..........of defendant no. 5 and defendants nos. 6, 7 and 8 are the members of the joint family owning the suit land consisting of defendants nos. 5 to 10. on june 14, 1968, defendants nos. 5 to 10 executed a sale-deed of one-half of the land survey no. 205 in favour of defendants nos. 1 to 4 notwithstanding that the plaintiff was in possession thereof as a tenant protected under the provisions of the bombay tenancy and agricultural lands act, 1948. the plaintiff, therefore, submitted that the sale in favour of defendants nos. 1 to 4 was in contravention of the law. he further alleged that relying on the said illegal sale, defendants nos. 1 to 4 were forcibly trying to enter into the suit land and all the defendants nos. 1 to 10 were forcibly interfering and obstructing the possession and.....
Judgment:

Vaidya, J.

1. This is a plaintiff's appeal from an order passed on September 19, 1968, returning his plaint for presentation to the proper Court under the provisions of 0, VII, Rule 10, of the Civil Procedure Code on the ground that the plaintiff overvalued the suit and filed it in the Court of the Civil Judge, Senior Division, at Kolhapur.

2. The suit was filed by the plaintiff on June 19, 1968, in the Court of the Civil Judge, Senior Division, at Kolhapur and was registered as special civil suit No. 52 of 1968. The plaintiff alleged in the plaint that on March 28, 1957, defendants Nos. 5 to 9 sold to the plaintiff the suit property consisting of one half part of agricultural land survey No. 205 situated at village Sulkud in Kagal Taluka. He alleged that prior to this sale he was the tenant of the whole of this land measuring 9 acres 37 gunthas and assessed at Rs. 44-10-0. According to him, as a result of the sale, he became the owner of half of the said land and the remaining half continued to be in his possession as a tenant of defendants Nos. 5 to 10. Defendants Nos. 9 and 10 are the sons of defendant No. 5 and defendants Nos. 6, 7 and 8 are the members of the joint family owning the suit land consisting of defendants Nos. 5 to 10. On June 14, 1968, defendants Nos. 5 to 10 executed a sale-deed of one-half of the land survey No. 205 in favour of defendants Nos. 1 to 4 notwithstanding that the plaintiff was in possession thereof as a tenant protected under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. The plaintiff, therefore, submitted that the sale in favour of defendants Nos. 1 to 4 was in contravention of the law. He further alleged that relying on the said illegal sale, defendants Nos. 1 to 4 were forcibly trying to enter into the suit land and all the defendants Nos. 1 to 10 were forcibly interfering and obstructing the possession and enjoyment of the suit land by the plaintiff. The plaintiff, therefore, prayed in the suit for a declaration that the transaction entered into by defendants Nos. 5 to 10 with defendants Nos. 1 to 4 was illegal and hence not binding on the plaintiff in any manner. The plaintiff further prayed for an injunction restraining defendants Nos. 1 to 10 from interfering with or obstructing the possession and enjoyment of the Suit land by the plaintiff.

3. The suit was resisted by defendants Nos. 1 to 10 who in their written statement exh. 27 inter alia contended that the suit lands being grass lands were not affected by the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, and hence the impugned transaction was valid. They also contended that the Court of the Civil Judge, Senior Division, at Kolhapur had no jurisdiction to try the suit as the lands were situated within the jurisdiction of the Court of the Civil Judge, Junior Division, at Kagal and the plaintiff had paid excessive Court-fees and overvalued the suit for purposes of jurisdiction.

4. In view of the contention regarding over-valuation, the learned Civil Judge framed issues as to whether the plaintiff had valued the suit properly for the purpose of payment of Court-fee stamp and for the purpose of jurisdiction of the Court and also as to whether the suit was maintainable in special jurisdiction of the Court. The issues were tried as preliminary issues, and the learned Civil Judge held that as the plaintiff had not explained the basis on which he had valued the suit and as the principal relief claimed in the suit was concerning the transaction between defendants, which was a sale-deed for a consideration of Rs. 12,000, the plaintiff ought to have paid Court-fee of Rs. 18.75. The learned Civil Judge held that the suit fell within the ambit of Section 6(IV)(d) under which as the suit property was agricultural land, the plaintiff would be liable to pay half of the ad valorem fee which would be payable if the suit was for possession of agricultural land. In other words, the plaintiff would be liable only to pay half the Court-fee which the Civil Judge worked out at Rs. 14 and held that the minimum Court-fee of Rs. 18.75 would be the Court-fee payable by the plaintiff if he had properly valued the suit. The learned Judge further held that under Section 8 of the Suits Valuation Act, the value of the suit for purposes of jurisdiction would be the same as the value for payment of Court-fees, viz., Rs. 278.50. He also held that even assuming that the valuation of the suit for purposes of jurisdiction would be Rs. 6,000, i.e., one-half of the amount of Rs. 12,000, the suit would not be maintainable in the Court of the Civil Judge, Senior Division, as the suit property was situated at Sulkud in Kagal Taluka. Hence he ordered that the plaint should be returned to the plaintiff for presentation to the proper Court under Order VII, Rule 10 of the Civil Procedure Code.

5. Mr. Shrikhande, the learned Counsel for the plaintiff, has challenged the order firstly on the ground that the learned Civil Judge was wrong in applying the provisions of Section 6(IV)(d) of the Bombay Court-fees Act, 1959, to the present suit. He submitted that having regard to the nature of the suit, the only provision applicable is Section 6(iv)(j). In my judgment, this contention of Mr. Shrikhande is correct because Section 6(IV)(d) relates to suits 'for declaration in respect of ownership, or nature of tenancy, tenure, right, lease, freedom or exemption from, or non-liability to, attachment with or without sale or other attributes, of immovable property' and no such declaration is prayed for in the present suit. The plaintiff has not asked for a declaration in respect of his ownership of the suit land which, if his contention was correct, could be declared only by the tenancy Court. Nor has he asked for a declaration with respect to his nature of tenancy which again would be a matter for the tenancy Court. He has asked for a declaration that the transaction of sale dated June 14, 1968, between the defendants should be declared to be illegal and not binding on the plaintiff and and there can be no doubt that the Civil Judge was clearly wrong in applying the provisions of Section 6(IV)(d) to this suit. The only provision of the Court-fees Act which is attracted to this suit is, as contended by Mr. Shrikhande, Clause (j) of Section 6(iv) which applies to a suit 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 is not otherwise provided for by the Act. The right which is the subject-matter of the dispute is the right claimed by the plaintiff to continue in uninterrupted possession of the suit land and his right to challenge any sale in contravention of the rights conferred on him under the Bombay Tenancy and Agricultural Lands Act, 1948. These rights, in my judgment, are incapable of monetary evaluation as it is the plaintiff's case that he has been in .possession of the suit land and hence the proper Court-fee payable on the plaint was Rs. 30 under 6(iv)(j),

6. The second contention urged by Mr. Shrikhande is that, whatever may be the valuation for purposes of Court-fees, the defendants cannot object to that valuation. The State receives the 'Court-fees and if the plaintiff chooses to pay more Court-fees than what is proper, whatever may be the valuation for the purposes of Court-fees, the pecuniary jurisdiction of the Court is determined by the evaluation of the suit by the plaintiff himself. According to him, the learned Civil Judge was wrong in applying the provisions of Section 8 of the Suits Valuation Act to the present suit. Section 8 of the Suits Valuation Act, 1887, as amended by Maharashtra Act IV of 1960, reads as under:

Where in suits ether 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, court-fees are payable ad valorem under the Bombay Court-fees Act, 1959, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same.

It is clear from these provisions that the rule of valuation under Section 8 cannot apply to a suit of which Section 6(iv)(j) will apply. Mr. Shrikhande is, therefore, right in his contention that the Civil Judge erred in holding that in the present case the valuation for purposes of jurisdiction should have been the same as the valuation for purposes of payment of Court-fees.

7. Even then, however, Mr. Shrikhande cannot succeed unless the suit in this case is one which could not have been instituted in the Court of the lowest grade competent to try it. Under Section 15 of the Code of Civil Procedure, 1908, every suit shall be instituted in the Court of the lowest grade competent to try it. Mr. Shrikhande, therefore, submitted that the concept of the lowest grade implies two or more Courts with concurrent jurisdiction and a hierarchy amongst them. He submitted that the Court of the Civil Judge, Senior Division was competent to try the suit as it was valued at Ks. 10,500 by the plaintiff, He relied on a decision of the Rangoon High Court in Mange Sit Paling v. Mange Tun A. I. R.[1925] Ran 278, in which it is laid down that the valuation put by the plaintiff prima facie determines the jurisdiction of the Court unless the suit is obviously overvalued and such overvaluation is mala fide. In that case the plaintiff had filed a suit to recover a piece of land measuring about 40 acres. He valued the land at, Rs. 5,000 and adding to that sum Rs. 802 which he claimed as mesne profits, he valued the whole suit for purposes of jurisdiction at Rs. 5,802. The defendants challenged this valuation and alleged that the land was not worth more than Rs. 3,000 and that even adding the value of the claim for mesne profits, the suit was well under Rs. 5,000 which was the limit of the jurisdiction of the Sub-Divisional Court. The Sub-Divisional Court made an elaborate enquiry and held that the land was worth Rs. 75 per acre only and hence the suit would be triable only by the District Court. Heald and Chari JJ., who heard this appeal from the order, set aside that order on the ground that the District Judge made a mistake in thinking that the word 'shall' in Section 15 was imperative and he had no jurisdiction to try the case. They held:.S. 15 of the Civil Procedure Code is imperative, undoubtedly, but it is so framed to show that it is imperative on the suitor who is bound to bring his suit in the Court of lowest grade. The word 'shall' is certainly not imperative on the Courts and does not deprive the higher Court of its jurisdiction to try the suit: Nidhi Lal v. Husain Husain I.L.R. (1884) All. 230. That Section is intended to prevent the Courts of higher grade from being overcrowded with suits and is intended for the benefit of such Courts. The higher Court is not bound to take advantage of it and can try such suits. It is also well established that the valuation put by the plaintiff prima facie determines the jurisdiction of the Court unless the suit is obviously over-valued and such over-valuation is mala fide.

Mr. Shrikhande relied on these observations and argued that there was no law which compelled the plaintiff to value the suit in any particular way and if the plaintiff, who has the choice having regard to the nature of the suit and the reliefs which he wanted, thought it desirable that his case should be heard by a more experienced Judge like the Civil Judge, Senior Division and, therefore, valued his suit so as to bring the suit within the jurisdiction of that Court, there was nothing mala fide about it and it cannot be said that he has overvalued the suit. But this argument of Mr. Shrikhande cannot be accepted because it appears to be well-established that although ordinarily it is the value put by the plaintiff on his suit that prima facie determines the jurisdiction, it does not follow that a plaintiff is in every case at liberty to assign any arbitrary value to the suit and thus be free to choose the Court in which he should bring the suit. It cannot be disputed that Section 15 is a rule of procedure and not of jurisdiction and whilst it lays down that a suit shall be instituted in the Court of the lowest grade, it does not oust the jurisdiction of the Courts of the higher grade which can try the suits under the Acts constituting them. It is well-established that as a matter of procedure, the higher Court will not entertain the suit but should return the plaint to the plaintiff to be presented to the proper Court as provided by Order VII, Rule 10 In Appa Rao v. Sofohanadri Rao I. L. R.(1899) Mad. 158 and Hamidunnisia Bibi v. Gopal Chandra Malakar I.L.R. (1897) Cal 601, the Madras and the Calcutta High Courts respectively went to the extent of laying down that if the over-valuation or under-valuation was patent on the face of the plaint, it is the duty of the Court to which the plaint was presented to return it to the plaintiff to be presented to the proper Court under Order VII, Rule 10. In Boidya Nath Adya v. Makhan Lal Adya I. L. R. (1800) Cal. 680, it was held that the Court-fees Act, 1870, Section 7, Clause 4 did not contemplate that the plaintiff could assign an arbitrary value to the subject-matter of the suit and the provisions of the Suits Valuation Act, Sections 7, 8 and 11 indicated that this was not the intention of the Legislature, and observed (p. 683) -.

The Court-fees Act ( Section 7, Clause 4 ) provides that for the purpose of determining the amount of court-fee payable, the value of certain classes of suits should be taken to be the amount at which the plaintiff values the relief sought. But we do not think the Legislature ever intended to leave it to the plaintiff to choose the Court in which he should bring his suit for possession or partition of property by assigning an arbitrary value to the subject-matter of the suit.

The same view is expressed in Dayaram v. Gordhandas I. L. R. (1906) Bom. 73, 8 L.R. 885 Bom which is a decision of a Division Bench of this Court consisting of Russel, Acting Chief Justice, and Mr. Justice Aston, where .Russel, Acting Chief Justice, applied the above decision of the Calcutta High Court in Boidya Nath Adya's case and Mr. Justice Aston observed in his judgment (p. 80) :.It being nowhere enacted in the Act that where such value is not determined by rules made under Section 3, the value shall be such as the plaintiff chooses to adopt, I am of opinion that the value must be (where disputed) determined by judicial decision in the suit, such determination being subject to the provisions of Section 11 of the Suits Valuation Act, VII of 1887.

Mr. Justice Aston has also relied on the following observations of Mr. Justice West in Lakshman Bhatkar v. Babaji Bhatkar I. L. R. (1888) Bom. 31 :.An exaggerated claim thus brought for the purpose of getting a trial in a different Court from the one intended by the Legislature is substantially a fraud upon the law, and must be rejected, whether it arises from mere recklessness or from an artful design to get the adjudication one Judge instead of that of another.

With respect, these observations are binding on me and I must, therefore, hold that whatever be the valuation of the suit by the plaintiff, where an objection is raised by the defendants to the valuation on the ground that the suit is over-valued, the Court is bound to consider the objection and decide judicially the value of the suit for the purposes of jurisdiction.

8. Under Order VII, Rule 1(i) it was the duty of the plaintiff to make a statement of the value of the subject-matter of the suit for purposes of jurisdiction and Court-fees so far as the case admitted. Paragraph 17 of Chapter II of the Civil Manual issued by the High Court provides:

17. The plaintiff shall state in the plaint or in a memorandum annexed thereto the value of the subject matter of the suit, as required by Rule 1 (i) of Order VII and also how and under what provision the valuation has been arrived at. Where it is not clear how the valuation is arrived at, the officer examining the plaint should place the matter before the Judge for orders.

It is patent in the present case that the plaintiff has not cared to explain how he valued the suit at Rs. 10,500. He has merely stated that he valued the suit at Rs. 10,500 and he had paid Court-fees on Rs. 10,500. I have already found that the proper Court-fee which was payable on this plaint was Rs. 30 and the proper provision of the Court-fees Act which applied was Section 6(iv)(j) because the matter in dispute in the suit is not susceptible of monetary valuation. The land in dispute is situated within the local limits of the Court of the Civil Judge, Junior Division, at Kagal. The plaintiff and the defendants also are residing in the jurisdiction of the Civil Judge, Junior Division, at Kagal and Mr. Shrikhande for the plaintiff did not contend that if the value was less than Rs. 10,000, the Court of the Civil Judge, Junior Division would not have jurisdiction to try the suit. In view of the decisions of the Bombay High Court cited above, what the Court has to decide is as to what is the proper valuation of the suit for jurisdiction and where the plaint should have been filed by the plaintiff. In my judgment, this is one of those cases where the suit has been patently over-valued and although I have found that the learned Civil Judge was in error in arriving at his conclusion with regard to the proper valuation of the suit, I must confirm the order passed by him for the reasons stated in this judgment. If the suit was incapable of monetary valuation, ordinarily a litigant would put a valuation which would bring the suit within the Court which would have normally jurisdiction in the suit. I think that Section 15 is enacted by the Legislature not merely to avoid overcrowding in the higher Courts but also for the convenience of parties and witnesses who may be examined by them. It may not be possible to fix the value of the suit at a particular sum as it is incapable of monetary valuation, but there can be no doubt that the suit could be valued at less than Rs. 10,000 and the suit should have been ordinarily filed in the Court of the Civil Judge, Junior Division, at Kagal under Section 15 of the Civil Procedure Code.

9. Lastly, Mr. Shrikhande has submitted that the defendants are disturbing the possession of the plaintiff and in the ends of justice it is necessary that the injunction which was granted by this Court should be continued. Mr. Hombalkar appearing for the defendants urged that the plaintiff has already filed another suit in the Court of the Civil Judge, Junior Division, at Kagal, and the injunction which was granted by this Court was exhausted as it was granted only for three weeks on January 8, 1969. It is unfortunate that although this matter was placed on the board, it did not reach till today and the defendants cannot take advantage of the fact that the three weeks' time which was originally granted as the period of the injunction has now expired. Ends of justice require that the status quo should be maintained and if the plaintiff has substantial rights to remain in possession, those rights should not be interfered with by the defendants merely because they have chosen to raise a technical plea which has succeeded. In my judgment, the defendants should be restrained from interfering with the possession of the plaintiff of the suit land for a period of four weeks from today to enable the plaintiff to present the plaint, which is returned to him, to the proper Court.

10. Mr. Shrikhande has submitted that as the proper Court-fee payable on the suit is only Rs. 30, the excess Court-fee paid by the plaintiff should be refunded to his client. This appeal is only against the order returning his plaint and the plaintiff is at liberty, if so advised, to move the lower Court for refund of the Court-fees.

11. In the result, appeal is dismissed, but the injunction shall issue for a period of four weeks from today, as stated above. Subject to this, rule discharged. In the circumstances of the case, no order as to costs.


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