Monday, 14 April 2014

Whether it is mandatory for plaintiff to give full description of suit property?



No care was taken by the Plaintiff to cure the

defect of wrong valuation and vagueness
in description of
the suit property despite the fact that specific written objections
were taken by the defendant. The Plaintiff could have valued
the Suit separately for the purposes of the Court fees and
jurisdiction of the Court as contemplated under the
Suit
Valuation Act and mentioning the relevant provision of the
Bombay Court fees Act. Valuation for the purposes of the Court

fees and for the purposes of the jurisdiction may also be the

same. But when the plaintiff in substance wanted to claim the
declaration as to the right , title as Owner of the immovable
residential property situated at Matunga, prime area in City of
Mumbai capable being valued in terms of money preferably by

the Government ready reckoner price and was duty bound to
state the market price of the property by reasonably estimating
the suit for the purposes of valuation of the Suit and for
jurisdiction of the Court and ought to have made payment of
ad valorem court fees stating the relevant provisions briefly for
benefit of the ministerial officer of the Court for to file the
plaint. . This was not done even till plaint was rejected by the
Court and not even till this appellate stage. The plaintiff must
be vigilant to give description of the immovable suit property
with its full description including boundaries thereof as
required in Order 7 rule 3 of the civil procedure code, as
amended in state of Maharashtra and cannot suppress the

market value of the Suit property from the court, as required to


be stated for the purposes of valuation of the suit for the

purpose of jurisdiction of the court as also for payment of the
Court fees. 

APPELLATE SIDE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

FIRST APPEAL NO. 729 OF 2013

Kishorbhai Premchand Shah   HIRJI BHOJRAJ & SONS

CORAM:-A. P. BHANGALE, J.
DATED : 2/9/2013
Citation;2014(2) MHLJ187 Bom

The appeal is directed against the
order dated
22-10-2011 passed in Civil Suit No. 1711 of 2010 below Ex. 6
passed by the Learned City Civil judge , City Civil Court
Mumbai rejecting the plaint under order 7 Rule 11 (d) of the
Code of Civil Procedure.

The plaintiff claimed as transferee, occupant and
ownership of the premises being Room No. 3, Mahavir

Building. According to the Plaintiff there was a clause 10 of

re-conveyance in earlier written agreement for Sale dated
31-03-1957 between Occupant Kishorbhai Premchand Shah
and charitable Trust (Defendant no. 1). The Trust issued notice
to the Plaintiff on 04-07-1988 to enforce clause 10 of the

agreement offering sum of Rs 1575/- by cheque and sought re-
acquisition of the suit premises on the basis of clause 10 and
offered monthly tenancy of the suit premises at the rate of Rs
50/- to the Plaintiff . The Plaintiff rejected the offer of tenancy,
disputing the right of the Trust under clause 10 of the
Agreement dated 31-03-1957 to re-conveyance of suit
premises.

It is case of the Plaintiff that plaintiff took
objection after the Trust decided to dispose off it’s property by
a Public notice dated 28-01-2009 published in ‘Mumbai
Samachar’Gujrathi News Paper and objected by letter dated
21-02-2009 . Trust replied and denied the statements made by

the Plaintiff by reply dated 02-03-2009. Thus Plaintiff had

filed S.C suit 1711 of 2010 for declaration that he holds and
occupy the suit premises; with full and complete ownership
challenging clause 10 and 14 of the Agreement for Sale dated
31-03-1957 as void and have no legal effect, with an prayer for

permanent injunction restraining Defendants from interfering
with the Plaintiff’s Possession, on the basis of clause 10 and 14
of the Agreement dated 31-03-1957.

The Suit was valued for Rs 1000/-only mentioning
clause Section 6 (iv) (j) of the Bombay Court Fees Act though
the Plaintiff was seeking declaration as to ownership of the Suit
property and also seeking relief to declare that clauses 10 and
14 of the Agreement dated 31-03-1957 are void.

The Trial Court had noticed after hearing the
Parties and upon perusal of the Plaint that the Plaintiff claimed
declaration that She is occupying the suit property as Owner
and also that the clauses 10 and 14 of the Agreement dated

31-03-1957 as Void. The Plaintiff had knowledge about the

notice dated 04-07-1988 (vide Para 6 of the Plaint) from the
Trust but She claimed that suit premises was allegedly
purchased by her in 1994. Learned Trial Judge applied Art 58
of the Limitation Act, 1963 whereby the period of Limitation is

three years reckoned from when the Trust gave notice dated 04-
07-1988 to the Plaintiff’s predecessor of enforcing the clause
10 of agreement dated 31-03-1957 while offering Tenancy to
the Plaintiff’s predecessor, who had rejected the offer of
Tenancy. No Suit was filed within three years from 04-07-1988
when the right to Sue first accrued in favour of the Plaintiff or
her predecessor. Thus it was observed by a reasoned order that
the Suit was barred under Art 58 of limitation Act as filed
beyond period of Limitation.

The Court also found that the Suit was not valued
properly for the purposes of the Court fees and jurisdiction.
Learned Trial Judge refereed to Section 6 (iv)(d) of the

Bombay court fees Act and observed that 1⁄4 th ad valorem fee

was leviable on the market value of the Suit property.
Valuation for the purposes of the Court fees and jurisdiction
was made at Rs 1000/- only as stated in Para 23 of the Plaint
despite the fact that the residential property is situated at

Matunga, prime area in City of Mumbai where market price

cannot be less than Ten Lakhs.
It is true that the plaintiff is free to make his or her
own estimation of the reliefs sought in the Plaint. But if
meager, arbitrary, and unreasonable the
valuation appears
Court can consider the prayers made and valuation made for
reliefs of declaration and injunction in respect ownership title
claimed over suit property, and may reject the plaint if
valuation for the purposes of the Court fees and jurisdiction is
found deliberately wrong.

In the Plaint valuation was stated in Para 23 thus;
“23.The Plaintiff values the relief claimed in the Suit

at Rs 1000/- and has paid the court fees accordingly”

This was deliberate, bald and vague statement in mischievous
disregard to the relevant provisions of the Suit valuation Act as
well as the the Bombay court Fees Act or willful ignorance of
relevant provisions of law to avoid revenue. By improper and

unjust valuation with scant disregard for the provisions of the
Suit valuation Act and the provisions of the Bombay Court
Fees Act the plaintiff can not allowed to get away from the
fiscal liability before approaching the Court of law.
No care was taken by the Plaintiff to cure the

defect of wrong valuation and vagueness
in description of
the suit property despite the fact that specific written objections
were taken by the defendant. The Plaintiff could have valued
the Suit separately for the purposes of the Court fees and
jurisdiction of the Court as contemplated under the
Suit
Valuation Act and mentioning the relevant provision of the
Bombay Court fees Act. Valuation for the purposes of the Court

fees and for the purposes of the jurisdiction may also be the

same. But when the plaintiff in substance wanted to claim the
declaration as to the right , title as Owner of the immovable
residential property situated at Matunga, prime area in City of
Mumbai capable being valued in terms of money preferably by

the Government ready reckoner price and was duty bound to
state the market price of the property by reasonably estimating
the suit for the purposes of valuation of the Suit and for
jurisdiction of the Court and ought to have made payment of
ad valorem court fees stating the relevant provisions briefly for
benefit of the ministerial officer of the Court for to file the
plaint. . This was not done even till plaint was rejected by the
Court and not even till this appellate stage. The plaintiff must
be vigilant to give description of the immovable suit property
with its full description including boundaries thereof as
required in Order 7 rule 3 of the civil procedure code, as
amended in state of Maharashtra and cannot suppress the

market value of the Suit property from the court, as required to

be stated for the purposes of valuation of the suit for the
purpose of jurisdiction of the court as also for payment of the
Court fees. The relevant facts which need to be looked into for
whether to return or reject the plaint
are the
deciding

averments made in the plaint. The trial Court can exercise the
power to reject the plaint at any stage of the suit even before
registering the plaint or after issuing summons to the defendant
or
at any time before the conclusion of the trial. For the
purposes of deciding an application under clauses (a) and (d) of
O.7, R. 11, the averments in the plaint are the relevant and not
the defence pleas taken by the defendant in the written
statement. Defence would be wholly irrelevant at the stage of
rejection of the plaint under order 7 Rule 11 (Saleembhai &
Ors. v. AIR 2003 SC 759). Hence no fault is found with the
impugned order rejecting the Plaint as barred by Article 58 of
the Limitation Act as also the plaintiff continued to run the risk

of rejecting of plaint due to wrong valuation for the purposes of
10
the Court fees and jurisdiction in view of the provisions under
Order 7 rule 11 (d) of the Code of Civil procedure.
10
For all the reasons stated no interference is
required by this Court with the impugned reasoned order. The
(A.P. BHANGALE, J.)

appeal lacks merits and is dismissed with costs.

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