Judgment · High Court

Kendurkar, learned counsel for the respondents – original plaintiffs. The suit filed by the respondents seeking injunction on the lines as mentioned in prayer clauses (i) and (ii) in the plaint was dismissed by the Court below after holding that those prayer clauses could not have been interpreted to mean that there was prayer for restoration of possession. Those prayer clauses are as under :

(i) and issue mandatory injunction against the defendant ordering him to remove all his articles and lock, if any, from the room shown by letters ABCD in the plaint map and make the same vacant within stipulated time; (ii)the Hon'ble Court be pleased to issue a 2 permanent injunction against the defendant permanently restraining him or his family members, agents, assigns, executors, friends etc. from in any way disturbing or interfering with the possession of the plaintiffs over the room by letters ABCD in the plaint map.

The rejection of suit was challenged by Respondents No. 1 & 2 by filing Regular Civil Appeal and the lower appellate Court found that the prayer clauses also contain within themselves a prayer for restoration of possession. Accordingly, the appeal was allowed and suit came to be decreed. In present Second Appeal filed by the defendant, this Court on 31.10.2007, after noticing the fact that strong prima facie arguable case was made out, notice before admission was issued. On

23.4.2008, this Court heard both the advocates and ordered an enquiry under Section 8 of Bombay Court Fees Act, 1959, to find out valuation. Accordingly enquiry was held by 6th Joint Civil Judge, Junior Division, Nagpur and said Court has submitted its report on 6.11.2008 mentioning that valuation of hall in dispute is Rs.14,900. The present respondents (original plaintiffs) accordingly paid Court fee on said valuation. Shri Choube, learned counsel 3 appellant has raised two contentions. According to him, the valuation report is not correct because the proportionate land cost has not been looked into and he further states that the learned trial Court did not consider the valuation report prepared by the Architect of present appellant in its proper perspective. According to him, the valuation ought to have been Rs.3,05,000/-. He points out that hall is situated in busy locality like Dhantoli and it can be used as residential as also for non-residential use and its area is about 292 Sq. feet.

He further argues that in any case, the prayer clauses could not have been interpreted to mean that prayer for possession was also made. Shri Kendurkar, learned counsel for the respondents, on the other hand, states that entire remaining part of the property is in possession of the respondents and dispute was only in relation to hall which was occupied by present appellant and hence the prayers as reproduced above were made. He contends that the position has been rightly appreciated in Section 8 enquiry and the report of the valuer of present respondents has been accepted. He further states that the prayers made have been rightly interpreted to include prayer for restoration of possession. 4 The prayers made show that there was direction sought that the present appellant should remove his articles and lock, if any, from the room and make it vacant within stipulated time. The second prayer is to restrain the present appellant, his family members, agents, assigns, executors, friends etc. from disturbing or interfering with the possession of the plaintiffs.

It is, therefore, obvious that the finding of lower appellate Court in this respect is neither erroneous nor perverse. The only procedural error was in relation to payment of court fee and by order of this Court dated 23.11.2008, the said error has been rectified. The challenge to valuation worked out by 6th Joint Civil Judge, Junior Division, Nagpur, appreciating contentions in respect of valuation report in these circumstances is not very relevant. It is also to be noticed that the trial Court has decided all issues in favour of the respondents – plaintiffs but only because of its interpretation of the prayer clauses, it did not grant him the complete relief. This application of mind and findings recorded by the trial Court have not been questioned before the lower appellate Court by the appellant. In circumstances, when possession of hall was sought, it is clear that there 5 was no need to include the cost of land for the purposes of valuation of that hall. After determination of valuation, the court fee has been already paid. Hence, I do not find any substantial question of law involved in this Second Appeal. It is dismissed. JUDGE *GS.