Subhash Eknath Babade & Anr. v. Raju Bhavrao Narwade & Ors.

...RESPONDENTS. (Nos.1 & 2 Ori. plaintiffs. & 3 to 6 Ori. Defts.3 to 6). Shri D.K. Kulkarni, Advocate for appellants. ... ... CORAM: S.S. SHINDE,J. 8th September, 2011. PER COURT:

This appeal from order takes exception to the order dated 3rd August, 2011 below Exh.11 in Special Civil Suit No.133 of 2011 passed by 2 ao146.11 the 6th Jt. C.J.S.D., Aurangabad.

The learned Counsel for the appellants submits that for the relief of injunction and possession, the suit up to the valuation of Rs.1,00,000/- can be tried by the C.J.J.D., Paithan. The transaction of sale had taken place within the jurisdiction of C.J.J.D., Paithan, the parties are residing within the jurisdiction of C.J.J.D., Paithan and, therefore, the suit is maintainable before the C.J.J.D., Paithan. However, the plaintiff has filed the suit before the C.J.S.D., Aurangabad. The learned Counsel for the appellants submits that the provisions of Section 8 of the Suits Valuation Act, 1887 are not considered by the C.J.S.D., Aurangabad while passing the impugned order. The learned Counsel invited my attention to para 9 of the plaint and submitted that it is the contention of the plaintiffs themselves that they have filed the suit for declaration of cancellation 3 ao146.11 of sale deed. the valuation shown in the sale deed is Rs.1,00,000/- and ad valorem court fees of Rs.6430/- has been paid. Therefore, according to the learned Counsel for the appellants, the plaintiffs themselves have stated in para 9 that ad valorem court fees has been paid on suit valuation at Rs. 1,00,000/-, and therefore, the provisions of section 8 of the Suits Valuation Act, 1887 are very much attracted. The suit of the plaintiffs, therefore, should not have been entertained by the C.J.S.D., Aurangabad. According to the learned Counsel for the appellants, matter requires consideration.

I have given due consideration to the submissions advanced by the learned Counsel for the appellants, perused the grounds raised in appeal memo, annexures thereto and also the impugned order passed by the trial Court. Para 15 of the impugned order reads, thus: 4 ao146.11 "In the present case, the suit is valued for the purpose of relief of declaration and possession of Rs.1,00,000/- as per Sec.4 of Suit Valuation Act, 1887 r/w Sec. 6, IV (h) and V of Bombay Court Fees Act, 1959. The suit for the purpose of relief of injunction is valued Rs.1,000/- as per section 9 of Suit Valuation Act r/w Sec. 6 IV (h-a) V Schedule II, entry No.23, (f) of Bombay Court Fees Act, 1959. The relief of declaration and injunction are independent reliefs and relief of possession is consequential relief to the relief of declaration. Therefore, for the purpose of declaration and injunction the suit is properly valued Rs.1,01,000/-. The suit property is situated and parties are residing within the ordinary jurisdiction of this court. Hence in view of Sec.25 of Bombay Civil Court Act, 1959 and Sec.16 of Civil Procedure Code, 1908, this court has jurisdiction to try this suit. Hence the submissions of learned advocate Shri M.M. Adwant have no substance consequently I conclude that this court has jurisdiction to try the suit, accordingly I answered preliminary Issue No.1 n the affirmative. "

The contention of the learned Counsel for the appellants is that the provisions of Section 8 of the Suits Valuation Act, 1887 are not considered by the 6th Jt. C.J.S.D., Aurangabad. The said section itself makes it clear that so far as the suit for declaration 5 ao146.11 and possession is concerned, section 8 of the Suits Valuation Act has no application since that section is restricted to the suits other than those referred to in the Court-fees Act, 1870, in which court fees are payable ad valorem under the Court-fees Act, 1870.

In the instant case, the plaintiffs have sought main relief of declaration that the sale deed should be declared as null and void and other ancillary reliefs are prayed i.e. possession and injunction during pendency of the suit. In that view of the matter, the provisions of section 8 of the Suits Valuation Act, 1887 are not applicable in the instant case. In para 15 reproduced herein above, the controversy raised by the appellants herein is properly answered by the concerned Court. In my opinion, the view taken by the Court below cannot be faulted with.

In that view of the matter, I do not find 6 ao146.11 any substance in the appeal from order and the same stands dismissed. Consequently, civil application does not survive and stands