C.R.A.No.848 of 1991

22nd November, 1991

Petitioner Counsel: N. K. Mudnaney
Respondent Counsel: Ajit P. Shah

JUDGMENT

JUDGMENT :- This revision by defendant No. 4 takes exception to the finding recorded by a Judge of the City Civil Court vis-a-vis the preliminary issue relating to pecuniary jurisdiction.

2. Respondent No. 1 - the plaintiff - has claimed possession of site measuring 23' x 13' described in para 1 of the plaint, injunctions - prohibitory and mandatory - as at prayer clauses (e) and (f) and a decretal direction for ascertainment of pendente lite and future mesne profits at Rs. 1,000/- per month. The valuation clause being para 19 of the plaint recites that the subject matter of the suit is valued at Rs. 10,500/- being 100 times the monthly rent i.e. Rs. 105/- per month payable by plaintiff to the Bombay Municipal Corporation (defendant No. 3). Defendant No. 4 questioned the valuation contending that plaintiff had to value the suit site according to its market price and that if it was so valued, the City Civil Court where the suit had been instituted, would have no pecuniary jurisdiction to try the suit.

3. The Judge whose finding is questioned feels that the plaintiff has been generous both in the matter of the suit's valuation and the Court fee paid. According to him the claim in suit fell within the terms of clause (f) of section 6(xii) and not section 6(v) of the Bombay Court Fees Act, 1959 (Act). The plaint - as do most of the plaints in Bombay - ignores the legal requirement incorporated in sub-rule (1) of Rule 1 of Order VII of the Code of CivilProcedure, 1908 (CPC). This rule to the extent relevant together with the sub-rule lays it down that :-

"The plaint shall contain....... a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits, showing the provisions of law under which the valuation for court-fees and jurisdiction is separately made."

The expression "subject-matter of the suit" has an indestructible linkage to the reliefs claimed in a suit. The plaint ignores all this as so much forth and places an omnibus value that being the market value of the land in dispute. Plaintiff has chosen to work out the market value by what is known as the rental method of valuation. Plaintiff knew that market value as provided by section 6(v) of the Act had to be the basis for the relief of possession. His error lay in forgetting that the suit embraced two or more distinct subjects viz. the reliefs of possession and injunctions sought vide prayer clauses (e) and (f). In fact each such clause can be- properly split into more than two. This attracted section 18 of the Act which says :-

"Where a suit embraces two or more distinct subjects the plaint..... shall be chargeable with the aggregate amount of the fees to which the plaints...... in suits embracing separately each of such subjects would be liable under this Act."

4. The digression apart, how did the trial Court come to the conclusion that plaintiff had over-valued the claim and paid court fee in excess of that leviable? The reasoning is to be found in paras 8 and 19 to 21 of the impugned order. To summarise, the view is that plaintiff is a tenant illegally ejected by the landlord and his suit is for recovery of the occupancy of immovable property, thus attracting section 6(xii)(f), the valuation therefor being the rent payable for the year preceding the presentation of the plaint. The suit is construed as a suit for possession against the BMC for recovery of the site from which plaintiff has been dispossessed by reason of the repairs permission accorded by the BMC to Defendant No. 1. Having said that the plaint has been over-valued, the Judge also goes on to describe the valuation as having the appearance of being correct.

5. What has been overlooked by the Judge is that the plaint specifically excludes the BMC from the liability to restore possession of the site or pay mesne profits therefor. Reliefs sought against the BMC are the injunctions enumerated in prayer clauses (e) and (f). What the BMC is accused of is its ignoring the repair permission accorded to defendant No. 1 in regard to adjacent premises, being used for demolition of plaintiff's structure on the suit site and thus permitting a land grab by defendants 1, 2 and 4. Suitable injunctions are sought to set right the damage done by the BMC. What is not averred in the plaint is the allegation that the BMC illegally ejected or allowed the other defendants to so eject plaintiff from the site. To such a relief, section 6(xii)(f) was not attracted.

6. If section 6(v) was germane to the valuation - and it is - vis-à-vis the relief of possession, what would be the method or working out the market value? The market value can be determined by the rental method. The crucial question is whether this method is applicable to the facts of this case? Mr. Mudnaney for defendant No. 4 relies on Premratan vs. Lalit Kumar, 1988 Mh.L.J. 321 to contend the contrary. Says the learned counsel that the valuation of this case should be that worked out on the basis of the deprivation plaintiff suffers. The plaint places the future mesne profits at Rs. 1,000/- per month. 100 times the said rate would come to Rs. 1,00,000/-. The Court fees and jurisdiction clause in the plaint would have to be reshaped and the plaint would have to be returned for presentation to the Original Side of this Court. Premratan (supra) is not an apposite authority for this case. There the plaint valuation was that made by a tenant-licensor against his licensee - the valuation for possession being pegged at 100 times the rent paid by the licensor to his landlord which rent was near about 9 times less than the compensation payable by the licensee to the licensor. The relief sought had thus a direct bearing on the deprivation that the licensor could be said to be suffering in the shape of compensation lost. That is not the case here?. What plaintiff alleges is a usurpation of the demised property by trespassers whose trespass has been connived at by his landlord. For regaining the demised property from the trespassers and valuating the leasehold property by the rental method of valuation would not be erroneous. The rent would represent the value per month of the site to the plaintiff for that is what he pays to the BMC for the occupation of the site. By reason of the loss of the site he is deprived of the value that he was receiving in exchange for the rent being paid by him. Thus the market value would correspond to the figure reached by the rental method of valuation. Mr. Mudnaney contends that the market value spoken of in section 6 corresponds to the open market value i.e. what money a willing purchaser would pay to a willing seller in the market. But there are differing methods of arriving at the market value and that chosen by the plaintiff is not a prohibited route. Moreover plaintiff does not claim a proprietary interest in the site, but a lesser right. Relating the rent payable by him to the market value would not be precluded in the facts of this case.

7. Sustaining the plaint valuation vis-a-vis the relief of possession is not the end of the revision. The correct valuation for pecuniary jurisdiction will have to await an amendment to the plaint. The plaint will have to be amended to explain how the different reliefs are valued. If necessary, additional court fees will have to be paid by or recovered from the plaintiff. Only after this has been done and defendants given the right to question the fresh pleading, will the preliminary issue be taken up for a fresh consideration.

8. The affirmative finding impugned here is quashed. The matter will go back to the City Civil Court. Plaintiff will apply for amending the plaint valuation clause bearing in mind the provisions of the law adverted to above. Only after the pleadings on the subject of valuation are complete will there be a fresh hearing on the preliminary issue. That issue could do with being worded with greater clarity and also by being suitably split up. Costs in the revision to be costs in the cause. Rule made partially absolute in the above terms with a direction that parties do appear before the trial Court on 19-12-1991 so that the matter can be further proceeded with.

Order accordingly.