Yeshwant Vishnu Tambe & Ors. v. Narayan Ganpat Metry & Ors.

............ Mr.Akhilesh Dubey, Vagish Mishra, A.A.Khan i/by M.Tripathi & Company, for the Appellants. Mr.Vachan Bodke i/by Chitnis Vaithy & Company, for the Respondent Nos.3 to 5. ............ CORAM : S.C.DHARMADHIKARI, J. 19th November, 2012. P.C.: 1 The City Civil Court has held that the suit claim is beyond its pecuniary jurisdiction and that is why aggrieved Plaintiffs have approached this Court in this appeal. 2 The only contention raised before me by the learned counsel appearing for the Appellants/ Plaintiffs is that the suit claim has been properly valued for the purpose of court fees and pecuniary jurisdiction and the impugned order is erroneous. The claim in the suit proceeds on the basis that the allotment of flats is right created in the Appellants/ Plaintiffs by a Government Resolution and the terms and conditions of which were binding on both, the Appellants as also the Cooperative Housing Society, therefore, this is not a case where substantive right based on title is claimed on the basis of possession in the immovable property and therefore, valuation or market value of the property would govern the *2* ao.326.11.39.sxw payment of court fees. 3 My attention is invited to Section 6(iv)(j) of the Bombay Court Fees Act, 1959 in this behalf and to the additional compilation of documents at pages 1 and 54. 4 It is not possible to accept this contention for more than one reason. The reliefs claimed in the suit are for declaration that the original Defendants should not violate the terms and conditions imposed by the Collector, Mumbai while allotting the plot of land. It is based on these terms and conditions that land has been allotted and therefore, the claim is that the Plaintiffs are entitled for flats in buildings being constructed or to be constructed on the property being Survey No.356, Plot No.1, CTS No.1850 and CTS No.125/4 of village Chembur, Taluka : Kurla, Mumbai Suburban District admeasuring 1593.60 sq.mtrs.. 5 Further relief is that the Development Agreement dated

09.12.2004 as well as Power of Attorney dated 22.12.2004 executed by the Defendant No.1 in the capacity as a Secretary and Defendant No.2 as a Chairman of Jay Shashank Cooperative Housing Society (Defendant No.6) in favour of the Defendant Nos.3 and 4 is not binding on the Plaintiffs. 6 To my mind, these prayers were clearly capable of monetary valuation. The suit claim proceeds on the footing that the plot of land was allotted by the Collector of Mumbai and which land belongs to the State Government, for providing housing accommodation to certain specified categories of persons, namely, backward class housing scheme. 7 It is common ground that the plaint alleges that backward class persons organized themselves into a cooperative housing society consisting of 40 members, out of which 36 from backward class and 04 from non backward class Hindu community. Their names were approved *3* ao.326.11.39.sxw by the Collector, but thereafter, there have been certain wrongful acts on the part of the contesting Respondents resulting in the Appellants being deprived of their entitlement.

8 The claim gives rise to, nothing but an allotment of immovable property, namely, flats in Mumbai in favour of the Appellants/ Plaintiffs. They accused the contesting Respondents of depriving them of their lawful entitlement. This is not statutory scheme or statutory entitlement as claimed. The allotment of land may be made in terms of certain statutory powers and under Government Resolution, but thereafter, allotment of flats or tenements was to be made by distinct legal entity, namely, cooperative housing society. In such circumstances the claim arising out of wrongful acts of the members or office bearers of the Society resulting into alleged deprivation of the Plaintiffs' right as backward class members is a claim clearly capable of monetary valuation. The learned Judge has committed no error in holding that in such suit the court fees will have to be paid on monetary valuation and in this case the flat of which possession is claimed, then market value of the same ought to be taken into consideration.

Once that is taken into consideration the pecuniary limit of the court's jurisdiction would not permit the City Civil Court to entertain and try the suit. The learned counsel appearing for the Appellants fairly stated that the claim would exceed even the present pecuniary limit of the City Civil Court. In other words, if the claim in the suit is essentially right to use, occupy and possess the flat which is immovable property, then, the court fees will have to be paid on the value of immovable property, namely, flat in this case and if so taken, it may exceed even the present pecuniary limit. 9 In such circumstances I do not find that the order under appeal suffers from such error or infirmity requiring interference in my *4* ao.326.11.39.sxw appellate jurisdiction. The order under appeal is based on the averments in the plaint and relevant statutory provisions and particularly in the Bombay Court Fees Act, 1959.

In these circumstances, the appeal is devoid of any merit and is dismissed. No costs. (S.C. Dharmadhikari, J) *5* ao.326.11.39.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.465 OF 2011 IN APPEAL FROM ORDER NO.326 OF 2011 Yeshwant Vishnu Tambe and others. ..Applicants/Appellants -versus- Narayan Ganpat Metry and others. ..Respondents ............ Mr.Akhilesh Dubey, Vagish Mishra, A.A.Khan i/by M.Tripathi & Company, for the Appellants. Mr.Vachan Bodke i/by Chitnis Vaithy & Company, for the Respondent Nos.3 to 5. ............ CORAM : S.C.DHARMADHIKARI, J. 19th November, 2012. P.C.: 1 In view of dismissal of the appeal, the Civil Application does not survive and it is also disposed of. No costs. (S.C. Dharmadhikari, J)