The Full Bench of this Court in Kazi Syed Saifuddin (supra) has
held that once a suit is valued and jurisdiction of the Court is determined
when the suit is instituted, same would be the valuation for the subsequent
proceedings in the suit. Said valuation would govern the appeal and for the
purposes of forum of appeal same criteria would apply. It was further held
that the forum of appeal is determined with reference to value of the suit and
not the amount decreed. Jurisdiction is determined by valuation in the plaint
and not by result of the suit. The law as laid down by the Full Bench has
been referred to in Dilip Khasbage (supra) while holding that valuation for
the purposes of jurisdiction and court fees are two different factors.
Similarly in Sagar Sakhare (supra) same view has been taken following the
law laid down by the Full Bench. The Supreme Court in Nemi Chand
(supra) has held that a memorandum of appeal has to be stamped according
to value of the subject matter of dispute in appeal and the relief claimed in
the memorandum of appeal determines the value of the appeal for purposes
of court fee.
It is thus obvious that what is material is the valuation of the suit
in the plaint and the jurisdiction has to be determined in that context. Result
of the suit would not govern determination of forum of the appeal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5828 OF 2014
Dr Pramod Prakashchandra Banait, vs Dr Avinash Prakashchandra Banait
CORAM : A.S.CHANDURKAR, J.
DATED: SEPTEMBER 09, 2015.
Citation:2016(3) MHLJ 809:2016(4) ALLMR 249
Rule. Heard finally with consent of learned counsel for the parties.
The petitioner who is the appellant in R.C.A. No.437/13 is
aggrieved by the order dated 28/07/2014 passed below Exhibit18 directing
him to pay court fee on an amount of Rs.1,10,00,000/ with further direction
to file the appeal before the appropriate forum.
2. The respondent No.1 herein along with his mother had filed Spl.
C.S. No.165 of 2000 seeking relief of permanent injunction in favour of his
mother that her possession should not be disturbed. Prayer for mandatory
injunction on his behalf was made against the present petitioner so as to
direct him to execute sale deed of the suit property. This relief was coupled
with prayer for possession. The trial Court by judgment dated 05/10/2013
partly decreed the suit. The petitioner was directed to execute sale deed in
favour of respondent No.1 after receiving consideration of Rs.1,10,00,000/
and he was further directed to deliver vacant possession of the suit property.
The suit was dismissed against respondent No.2 herein. Being aggrieved the
petitioner filed R.C.A. No.437 of 2013. The following note was appended to
said appeal which reads thus :
“ The original suit was valued at Rs.10,00,300/, Rs.10,00,000/
for possession and Rs.300/ for permanent injunction. Due to death
of plaintiff No.1 the relief of injunction did not survive so relief
granted is confined to possession valued at Rs.10,00,000/. Hence
the valuation of this appeal is restricted to this valuation. Therefore
this appeal in this court. ”
3. The respondent No.1 filed an application vide Exhibit18 praying
that the appeal be dismissed for want of jurisdiction on the ground that the
petitioner had undervalued the appeal to bring it within the jurisdiction of
the District Court. It was stated that as the value of the suit property was
Rs.1,10,00,000/, the appeal was required to be be filed before the High
Court. This application was opposed by the petitioner and the Appellate
Court by order dated 28/07/2014 directed the petitioner to pay court fee on
the amount of Rs.1,10,00,000/ and thereafter file the appeal before the
appropriate forum. This order is impugned in the present writ petition.
4. Shri P. A. Markandeywar, learned counsel for the petitioner
submitted that the petitioner had rightly filed the appeal before the District
Court. According to him, the suit as filed was valued by the original plaintiff
for Rs.10,00,000/ in respect of prayer for mandatory injunction and
possession. The claim for injunction was further valued at Rs.300/. It
was submitted that during pendency of the suit, the original plaintiff No.1
mother had expired and hence the petitioner was not required to claim any
relief in the matter of permanent injunction. Therefore the appeal was
valued at Rs.10,00,000/ which give jurisdiction to the District Court. He
submitted that the aspect of jurisdiction for the purposes of court fee was
different than the aspect of valuation for the purposes of jurisdiction. The
forum for filing the appeal would be dependent on the basis of valuation of
the suit. He therefore submitted that the Appellate Court was not justified
in directing the petitioner to pay court fee on the amount of
Rs.1,10,00,000/. In support of his submission, learned counsel placed
reliance on the following judgments :
(i) Dilip s/o Kisanrao Khasbage vs. Leeladhar s/o Pandurang
Ganorkar 2011(1) Mh.L.J. 969.
(ii) Bans Gopal Singh vs. Sheo Bardan Singh and others A.I.R. (31)
1944 Oudh 276.
(iii) Nemi Chand and Anr. Vs Edward Mills Co. Ltd. And Anr. AIR
1953 SC 28
(iv) Sagar Dattatraya Sakhare and Anr. vs. Sanjay Waman Sathe
and others 2014(4) Mh.L.J. 676.
(v) Kazi Syed Saifuddin vs. Kasturchand Abhayrajji Golchha
1999(2) Mh.L.J. 675.
5. Per contra Dr R. S. Sundaram, learned counsel respondent No.1
supported the impugned order. It was submitted that the forum of the
appeal could not be chosen by the appellant and it would depend upon the
decree as passed by the trial Court. As the trial court had held the suit
property to be valued at Rs.1,10,00,000/the appeal would lie before the
High Court. It was submitted that the court fees could fluctuate depending
upon the decree passed by the trial Court. It was submitted that the
appellant could not be permitted to value the appeal for purposes of
jurisdiction at Rs.10,00,000/ as was done in the suit. It was therefore
submitted that the Appellate Court was justified in passing the impugned
order. Learned counsel placed reliance on the following decisions :
(i) Deepak Chaturaji Tabhane vs. Sunanda wd/o Laxman Tanmane and
Ors. 2010(7) Mh.L.J. 438.
(ii) Nirmal Quality Products vs. M/s Contey Industries and anr. (1995(1)
Mh.L.J. 189.
6. I have heard the learned counsel at length and I have given thoughtful
consideration to their submissions. The suit as filed was valued for the
purposes of jurisdiction and court fees at Rs.10,00,300/ The relief of
possession was valued at Rs.10,00,000/ and the relief of injunction was
valued at Rs.300/. The trial Court partly decreed the suit and directed the
petitioner to execute sale deed of the property after receiving consideration
of an amount of Rs.1,10,00,000/. In the appeal filed by the petitioner he
has restricted his claim with regard to relief of possession valued at
Rs.10,00,000/ and has paid court fees accordingly.
7. In so far as the relief for permanent injunction is concerned, same
was not granted by the trial Court on account of death of plaintiff No.1 and
the petitioner has therefore not sought any relief in that regard. The only
issue therefore that requires consideration is in respect of valuation of the
appeal. While according to the petitioner the appeal was required to be
valued on the basis of claim as made in the suit, according to the respondent
as the trial court had fixed the sale consideration at Rs.1,10,000/, appeal
was to be valued on that basis.
8. The Full Bench of this Court in Kazi Syed Saifuddin (supra) has
held that once a suit is valued and jurisdiction of the Court is determined
when the suit is instituted, same would be the valuation for the subsequent
proceedings in the suit. Said valuation would govern the appeal and for the
purposes of forum of appeal same criteria would apply. It was further held
that the forum of appeal is determined with reference to value of the suit and
not the amount decreed. Jurisdiction is determined by valuation in the plaint
and not by result of the suit. The law as laid down by the Full Bench has
been referred to in Dilip Khasbage (supra) while holding that valuation for
the purposes of jurisdiction and court fees are two different factors.
Similarly in Sagar Sakhare (supra) same view has been taken following the
law laid down by the Full Bench. The Supreme Court in Nemi Chand
(supra) has held that a memorandum of appeal has to be stamped according
to value of the subject matter of dispute in appeal and the relief claimed in
the memorandum of appeal determines the value of the appeal for purposes
of court fee.
It is thus obvious that what is material is the valuation of the suit
in the plaint and the jurisdiction has to be determined in that context. Result
of the suit would not govern determination of forum of the appeal.
9. The decisions in Deepak Tabhane (supra) and Nirmal Quality
Products (supra) do not support the stand as taken by the respondent that
the appeal as filed before the District Court was not tenable on account of the
decree as passed. As noted above, the jurisdiction of the appellate forum is
determined on the basis of valuation of the suit and on that basis it is held
that the appeal has been properly instituted.
10. The Appellate Court in the impugned order has observed that as
the trial Court had determined the valuation of the property at
Rs.1,10,00,000/ the appellant was required to pay court fee on said amount.
Considering the law as laid down by the Full Bench in Kazi Syed Saifuddin
(supra), valuation of the appeal would be governed by the valuation put for
the relevant relief by the plaintiff when the suit was filed. On that basis
therefore the appeal was properly valued both for the purposes of jurisdiction
as well as for court fees.
11. In view of aforesaid discussion, the impugned order directing the
petitioner to pay court fees on the basis of the decree passed by the trial
Court cannot be sustained. The same is accordingly set aside. The appeal has
to be entertained on merits. Writ petition is allowed in aforesaid terms with
no order as to costs.
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held that once a suit is valued and jurisdiction of the Court is determined
when the suit is instituted, same would be the valuation for the subsequent
proceedings in the suit. Said valuation would govern the appeal and for the
purposes of forum of appeal same criteria would apply. It was further held
that the forum of appeal is determined with reference to value of the suit and
not the amount decreed. Jurisdiction is determined by valuation in the plaint
and not by result of the suit. The law as laid down by the Full Bench has
been referred to in Dilip Khasbage (supra) while holding that valuation for
the purposes of jurisdiction and court fees are two different factors.
Similarly in Sagar Sakhare (supra) same view has been taken following the
law laid down by the Full Bench. The Supreme Court in Nemi Chand
(supra) has held that a memorandum of appeal has to be stamped according
to value of the subject matter of dispute in appeal and the relief claimed in
the memorandum of appeal determines the value of the appeal for purposes
of court fee.
It is thus obvious that what is material is the valuation of the suit
in the plaint and the jurisdiction has to be determined in that context. Result
of the suit would not govern determination of forum of the appeal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5828 OF 2014
Dr Pramod Prakashchandra Banait, vs Dr Avinash Prakashchandra Banait
CORAM : A.S.CHANDURKAR, J.
DATED: SEPTEMBER 09, 2015.
Citation:2016(3) MHLJ 809:2016(4) ALLMR 249
The petitioner who is the appellant in R.C.A. No.437/13 is
aggrieved by the order dated 28/07/2014 passed below Exhibit18 directing
him to pay court fee on an amount of Rs.1,10,00,000/ with further direction
to file the appeal before the appropriate forum.
2. The respondent No.1 herein along with his mother had filed Spl.
C.S. No.165 of 2000 seeking relief of permanent injunction in favour of his
mother that her possession should not be disturbed. Prayer for mandatory
injunction on his behalf was made against the present petitioner so as to
direct him to execute sale deed of the suit property. This relief was coupled
with prayer for possession. The trial Court by judgment dated 05/10/2013
partly decreed the suit. The petitioner was directed to execute sale deed in
favour of respondent No.1 after receiving consideration of Rs.1,10,00,000/
and he was further directed to deliver vacant possession of the suit property.
The suit was dismissed against respondent No.2 herein. Being aggrieved the
petitioner filed R.C.A. No.437 of 2013. The following note was appended to
said appeal which reads thus :
“ The original suit was valued at Rs.10,00,300/, Rs.10,00,000/
for possession and Rs.300/ for permanent injunction. Due to death
of plaintiff No.1 the relief of injunction did not survive so relief
granted is confined to possession valued at Rs.10,00,000/. Hence
the valuation of this appeal is restricted to this valuation. Therefore
this appeal in this court. ”
3. The respondent No.1 filed an application vide Exhibit18 praying
that the appeal be dismissed for want of jurisdiction on the ground that the
petitioner had undervalued the appeal to bring it within the jurisdiction of
the District Court. It was stated that as the value of the suit property was
Rs.1,10,00,000/, the appeal was required to be be filed before the High
Court. This application was opposed by the petitioner and the Appellate
Court by order dated 28/07/2014 directed the petitioner to pay court fee on
the amount of Rs.1,10,00,000/ and thereafter file the appeal before the
appropriate forum. This order is impugned in the present writ petition.
4. Shri P. A. Markandeywar, learned counsel for the petitioner
submitted that the petitioner had rightly filed the appeal before the District
Court. According to him, the suit as filed was valued by the original plaintiff
for Rs.10,00,000/ in respect of prayer for mandatory injunction and
possession. The claim for injunction was further valued at Rs.300/. It
was submitted that during pendency of the suit, the original plaintiff No.1
mother had expired and hence the petitioner was not required to claim any
relief in the matter of permanent injunction. Therefore the appeal was
valued at Rs.10,00,000/ which give jurisdiction to the District Court. He
submitted that the aspect of jurisdiction for the purposes of court fee was
different than the aspect of valuation for the purposes of jurisdiction. The
forum for filing the appeal would be dependent on the basis of valuation of
the suit. He therefore submitted that the Appellate Court was not justified
in directing the petitioner to pay court fee on the amount of
Rs.1,10,00,000/. In support of his submission, learned counsel placed
reliance on the following judgments :
(i) Dilip s/o Kisanrao Khasbage vs. Leeladhar s/o Pandurang
Ganorkar 2011(1) Mh.L.J. 969.
(ii) Bans Gopal Singh vs. Sheo Bardan Singh and others A.I.R. (31)
1944 Oudh 276.
(iii) Nemi Chand and Anr. Vs Edward Mills Co. Ltd. And Anr. AIR
1953 SC 28
(iv) Sagar Dattatraya Sakhare and Anr. vs. Sanjay Waman Sathe
and others 2014(4) Mh.L.J. 676.
(v) Kazi Syed Saifuddin vs. Kasturchand Abhayrajji Golchha
1999(2) Mh.L.J. 675.
5. Per contra Dr R. S. Sundaram, learned counsel respondent No.1
supported the impugned order. It was submitted that the forum of the
appeal could not be chosen by the appellant and it would depend upon the
decree as passed by the trial Court. As the trial court had held the suit
property to be valued at Rs.1,10,00,000/the appeal would lie before the
High Court. It was submitted that the court fees could fluctuate depending
upon the decree passed by the trial Court. It was submitted that the
appellant could not be permitted to value the appeal for purposes of
jurisdiction at Rs.10,00,000/ as was done in the suit. It was therefore
submitted that the Appellate Court was justified in passing the impugned
order. Learned counsel placed reliance on the following decisions :
(i) Deepak Chaturaji Tabhane vs. Sunanda wd/o Laxman Tanmane and
Ors. 2010(7) Mh.L.J. 438.
(ii) Nirmal Quality Products vs. M/s Contey Industries and anr. (1995(1)
Mh.L.J. 189.
6. I have heard the learned counsel at length and I have given thoughtful
consideration to their submissions. The suit as filed was valued for the
purposes of jurisdiction and court fees at Rs.10,00,300/ The relief of
possession was valued at Rs.10,00,000/ and the relief of injunction was
valued at Rs.300/. The trial Court partly decreed the suit and directed the
petitioner to execute sale deed of the property after receiving consideration
of an amount of Rs.1,10,00,000/. In the appeal filed by the petitioner he
has restricted his claim with regard to relief of possession valued at
Rs.10,00,000/ and has paid court fees accordingly.
7. In so far as the relief for permanent injunction is concerned, same
was not granted by the trial Court on account of death of plaintiff No.1 and
the petitioner has therefore not sought any relief in that regard. The only
issue therefore that requires consideration is in respect of valuation of the
appeal. While according to the petitioner the appeal was required to be
valued on the basis of claim as made in the suit, according to the respondent
as the trial court had fixed the sale consideration at Rs.1,10,000/, appeal
was to be valued on that basis.
8. The Full Bench of this Court in Kazi Syed Saifuddin (supra) has
held that once a suit is valued and jurisdiction of the Court is determined
when the suit is instituted, same would be the valuation for the subsequent
proceedings in the suit. Said valuation would govern the appeal and for the
purposes of forum of appeal same criteria would apply. It was further held
that the forum of appeal is determined with reference to value of the suit and
not the amount decreed. Jurisdiction is determined by valuation in the plaint
and not by result of the suit. The law as laid down by the Full Bench has
been referred to in Dilip Khasbage (supra) while holding that valuation for
the purposes of jurisdiction and court fees are two different factors.
Similarly in Sagar Sakhare (supra) same view has been taken following the
law laid down by the Full Bench. The Supreme Court in Nemi Chand
(supra) has held that a memorandum of appeal has to be stamped according
to value of the subject matter of dispute in appeal and the relief claimed in
the memorandum of appeal determines the value of the appeal for purposes
of court fee.
It is thus obvious that what is material is the valuation of the suit
in the plaint and the jurisdiction has to be determined in that context. Result
of the suit would not govern determination of forum of the appeal.
9. The decisions in Deepak Tabhane (supra) and Nirmal Quality
Products (supra) do not support the stand as taken by the respondent that
the appeal as filed before the District Court was not tenable on account of the
decree as passed. As noted above, the jurisdiction of the appellate forum is
determined on the basis of valuation of the suit and on that basis it is held
that the appeal has been properly instituted.
10. The Appellate Court in the impugned order has observed that as
the trial Court had determined the valuation of the property at
Rs.1,10,00,000/ the appellant was required to pay court fee on said amount.
Considering the law as laid down by the Full Bench in Kazi Syed Saifuddin
(supra), valuation of the appeal would be governed by the valuation put for
the relevant relief by the plaintiff when the suit was filed. On that basis
therefore the appeal was properly valued both for the purposes of jurisdiction
as well as for court fees.
11. In view of aforesaid discussion, the impugned order directing the
petitioner to pay court fees on the basis of the decree passed by the trial
Court cannot be sustained. The same is accordingly set aside. The appeal has
to be entertained on merits. Writ petition is allowed in aforesaid terms with
no order as to costs.
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