Shri Rajaram Bhagwati Tiwari And ... vs The Municipal Corporation Of ...
2004 Latest Caselaw 170 Bom

ORDER

V.M. Kanade, J.

1. The appellants-plaintiffs are challenging the Order passed by the Trial Court whereby the Trial Court has held that the appellants-plaintiffs should have valued the plaint as per the prevailing market value of Room No. 302 which would be beyond Rs. 50,000/- and, therefore, that would be beyond the pecuniary jurisdiction of the City Civil Court. The Trial Court, therefore, returned the plaint under the provisions of Order VII Rule 10 of the Civil Procedure Code. The facts which are relevant for the purpose of deciding the present Appeal from Order are as follows.

2. Appellants are the original plaintiffs and the respondents are the original defendants. For the sake of convenience, the parties shall be referred to as the plaintiffs and defendants.

3. The plaintiffs have filed a suit in the City Civil Court and have averred in the plaint that the plaintiffs and defendant No. 4 had acquired the premises some time in the year 1957 from one Mr. Maharaj. The said premises was a room admeasuring 10' x 12' ft. being Room No. 25 in New Municipal Chawl No. 47-K, formerly known as Putalabai Chawl, Ganesh Nagar, Mumbai 4000 12. The said premises was situated on the land belonging to the Municipal Corporation of Greater Bombay. The case of the plaintiffs in the plaint was that though the said premises were acquired by the plaintiff No. 1 and defendant No. 4 yet, defendant No. 4, being his elder brother, the said premises were acquired in his name. In the plaint, a further averment has been made that the rent receipts in respect of the said premises stand in the name of defendant No. 4. However, the plaintiffs were contributing their share towards the rent to the defendant Nos. 4 and 6. Further, it is stated that plaintiffs have been residing in the said premises since 1957 and they have relied upon the Ration Card, Identity Card issued by Morarji Gokuldas Spinning and Weaving Company, xerox copy of the Pass-book issued by the Mahanagar Co-operative Bank, State Bank of India, Voter's Identity Card and other documents. It is averred in para 4 of the plaint that Rehabilitation Scheme was introduced for redevelopment of Ganesh Nagar wherein the said premises were situated. It is stated that under the Rehabilitation Scheme, the tenants/occupiers of the said Ganesh Nagar are to be accommodated in the newly constructed building developed by defendant No. 2. It is their case that defendant Nos. 4 to 6, with a view to grab the premises in the new Building, in collusion with the other defendants, succeeded in getting allotment of Room No. 302, 3rd floor, Ganesh Nagar, Mumbai 4000 12 without the knowledge of the plaintiffs. According to the plaintiffs, the cause of action for filing the suit arose on 9/9/2003 when the defendants threatened to dispossess the plaintiffs and, therefore, they had to file present suit. In para 16 of the plaint, prayer Clause (a) is quoted which reads as follows:

"(a) This Hon'ble Court may be pleased to declare that the plaintiffs are jointly entitled to the permanent alternate accommodation viz. Room No. B-302, 3rd Floor, Building No. 4, Ganesh Nagar, Mumbai - 400 012, granted in lieu of the said premises viz. Room No. 25, New Municipal Chawl No. 47-k, Ganesh Nagar, Mumbai - 400 012, along with Defendants Nos. 4 to 6."

Prayer Clause (b) has been deleted and prayer Clause (c) is the interim relief which is claimed during the pendency of the suit. In para 13, it is stated that the subject matter of the present suit was not susceptible to the monetary valuation and 5 they, therefore, valued the said claim at Rs. 1000/-.

4. The defendants raised a preliminary issue regarding the pecuniary jurisdiction of the City Civil Court and, therefore, the City Civil Court framed a preliminary issue and, thereafter, by Order dated 16/12/2003, the Trial Court returned the plaint.

5 The learned Counsel appearing on behalf of the plaintiffs submitted that, essentially, suit was a suit seeking performance of the statutory obligation by the defendants and, therefore, it was not susceptible to the monetary valuation. He relied upon the judgment in the case of Virodavan (Borivali) Co-operative Housing Society Limited v. Karmarkar Bros. and Ors. reported in 1982 Mh.L.J. page 607 and submitted that the ratio of the said case was squarely applicable to the facts of the present case. He submitted that, in the said case, a suit was filed by the Co-operative Housing Society against the Builder to enforce the obligation under Sections 4, 11 and 12 of the Maharashtra Ownership Flats (Regulation of the promotion of Construction, Sale, Management and Transfer) Act, 1963 (For snort "MOFA"). He submitted that in the said case, the learned Single Judge of this Court had held that since the suit was filed for seeking enforcement of the obligation under the Act, it was not susceptible of monetary valuation. The learned Counsel appearing on behalf of the plaintiffs-appellants further relied upon the Judgment in the case of Maria Philomina Pereira v. Rodrigues Construction wherein a similar view had been taken by the learned Single Judge. He submitted that so far as the valuation of the suit is concerned, the averments in the plaint had to be taken into consideration as & whole and on the basis of the said averments, the value of the suit will have to be taken into consideration. He further submitted that the cause of action which constitutes the bundle of facts also would be a relevant factor for the purposes of deciding the valuation of the suit. He submitted that, in the present case, as a result of the Slum Redevelopment Scheme, certain rights had accrued to the tenants/occupiers of certain premises and they were entitled to be rehabilitated free of cost in a new building. It was submitted that thus the Scheme of Rehabilitation was formulated as a result of the statutory provisions under the Slum Redevelopment Act. He submitted that under Regulation 33(7) (10) of the D.C. Regulations, a Scheme had been framed and, as a result, it had become necessary for the developed to develop a slum and rehabilitate the occupants free of cost and only then the said developer would be entitled to get the higher FSI. He submitted that, therefore, in the suit, what was claimed by the plaintiffs was their entitlement under the Scheme which was framed as a result of the provisions under the said Act and, therefore, the Scheme had a statutory binding force. He submitted that merely because the tenement in the new building was given to the occupant/tenant on ownership basis, it cannot be said that, that would be the subject matter of the suit.

6. The learned counsel appearing on behalf of defendant No. 1-respondent No. 1 herein, vehemently opposed the submissions made on behalf of the plaintiffs-appellants. He submitted that from the perusal of the prayer clause itself it was very clear that the plaintiffs were seeking possession of the permanent alternative accommodation in the newly constructed building. It was submitted that in the plaint itself an averment was made to the effect that the said room was allotted to defendant No. 4 behind the back of the plaintiffs and in collusion with other defendants. He submitted that, therefore, the suit, in effect, was a suit for declaration of possession. He, therefore, submitted that the provisions of Section 6(iv)(j) would be squarely applicable in the present case and, therefore, the City Civil Court would not have jurisdiction to decide the said suit as the valuation of the said flat would be mare than Rs. 50,000/-. The learned counsel relied upon the judgment in the case of Ratilal Manilal v. Chandulal Chhotalal reported in [1946] XLIX BLR 552. He submitted that the Division Bench of this Court has observed that the said Section 7(v) of the Court Fees Acts which is equivalent to Section 6(iv)(c) of the present Act, contemplates that the subject matter of a suit for the possession of land as being the land and the subject matter of a suit for the possession of a garden as being the garden and the subject matter of a suit for the possession of a house as being the house, and that no different interpretation would be given once the relief claimed was seeking possession of the said house. He relied on the observations made by the Division Bench wherein Division Bench has observed that the provision was a harsh provision, however, that being the law, there is no escape from it and the law could be changed only by way of amendment. He submitted that, in the present case also, in effect, what the plaintiff was seeking was joint possession of the said flat and, therefore, the case squarely falls under the provisions of Section 6(iv)(d). The learned Counsel further relied upon the judgment of the Full Bench of this Court in the case of Prem Ratan Vohra v. Lalitkumar Dayalji Lakhani in which the Full Bench was called upon to decide two questions of law regarding the determination of the market value of the suit for the purposes of jurisdiction of the Court and the basis on which the said valuation was to be made. He submitted that the ratio of the said judgment was squarely applicable to this case. He submitted that in para 11, the Full Bench had observed as under.

"11. Our answers to the two questions referred to us are, therefore, as follows-

The basis for calculating the market value of the property should be the compensation charged and not the rent of the premises in question. It is the net income which accrues to the licensor calculated in the manner stated hereinabove which should be taken as its unit value and its market value should be arrived at by multiplying it by 12 1/2 years' purchase or by one hundred and fifty months' value."

The learned Counsel relied upon the observations made by the Full Bench in para 6-A, para 9 and para 11 of the said judgment. He also relied upon Judgments in the case of Pushparaj Surajprasad Modh v. Sayyad Altaf Sayyad Wazir and Ors. reported in 2004 Mh.L.J. page 492 as also in the case of Gajanan Anandrao Dake and Ors. v. Vishwanath Ahilaji Thembekar and Ors. reported in 1977 U.C.R. (Bom.) 441. He also referred to the Judgment in which a contrary view was taken by the learned Single Judge of this Court in the case of Madhukar Abaji Kalbande and Ors. v. Mangalchand Mannalal Agrawal and Ors. reported in 1988 Mh.L.J. 558 and invited my attention to the observations made by the learned Single Judge in para 3 of the said judgment.

7. The learned Counsel appearing on behalf of respondent No. 2 has relied upon the judgment in the case of Mohan Meakin Breweries Ltd. v. Oceanic Imports and Exports Corporation reported in 1980 Mh.L.J 803. He has also relied on the judgment of Division Bench of this Court in the case of Nagin M. Daoli v. Haribhai M. Patel . He has also relied upon the Judgments in the case of Bermer Shipping INC and Anr. v. Kala Rachandran reported in 2002(4) Bombay 460 as also in the case of Parekh Market Premises Co-op. Society Ltd. v. Padmanabh Builders and Ors. reported in 1998 (2) ALL MR page 313, and the Division Bench Judgment of this Court in the case of Gulam Mohamed Mohamed Yunus and Anr. v. Lalchand Chelaram and Ors. . He has submitted that there is no averment in the plaint or in the prayer clause stating that the plaintiffs are seeking enforcement of the obligations under any Statutory Scheme or Act. He submits that, therefore, the ratio of the judgments which are relied upon by the plaintiffs-appellants would not be applicable to the facts of the present case.

8. I have heard the parties at length. I have perused the impugned order as also the plaint and affidavit in support and reply filed by the parties. I have perused the documents referred to by the plaintiffs-appellants.

9. The Suits Valuation Act as also the Bombay Court Fees Act, 1959 are in the nature of Taxing Statutes and a consistent view has been taken by the Apex Court that while interpreting the provisions of such a Statute) the provisions have to be complied with strictly.

10. So far as the parameters of valuation of the suit are concerned, they are laid down under Section 3 of the Suit Valuation Act, 1887. Section 8 of the Suits Valuation Act lays down that for the purpose of determining the court fees, the provisions of Bombay Court Fees Act will be applicable. By virtue of the amendment to the Court Fees Act, Central Act is not applicable to the State of Maharashtra as now there is a special Statute for the State of Maharashtra. It is a settled position in law that for the purpose of deciding the court fees and the valuation of the subject matter for the purpose of jurisdiction of the court, the averments in the plaint have to be taken into consideration as a whole. From the various judgments which are cited by both the parties, it is clear that for the purpose of jurisdiction, the subject matter of the suit has to be taken into consideration as also the averments in the plaint and the reliefs claimed by the plaintiff in the prayer clause. So far as the suits for possession are concerned on any declaration of ownership of immovable property is concerned, they fall within the provisions of section 6(iv)(d) of the Bombay Court Fees Act. The provisions of Section 6(iv)(d) of the Bombay Court Fees Act are reproduced hereinbelow:-

6. Computation of fees payable in certain suits

X X X X X X X X X X X X X X

(iv)(d) for ownership etc. of immovable property, etc.

In suits for declaration in respect of ownership, or nature of tenancy, title, tenure, right, lease, freedom or exemption from or non-liability to, attachment with or without sale or other attributes, of immoveable property, such as a declaration that certain land is personal property of the Ruler of any former Indian State or public trust property or property of any class or community one-fourth of ad valorem fee leviable for a suit for possession on the basis of title of the subject-matter, subject to a minimum fee of one hundred rupees.

Provided that if the question is of attachment with or without sale the amount of fee shall be the ad valorem fee according to the value of the property sought to be protected from attachment with or without sale or the fee of sixty rupees, whichever is less:

Provided further that, whenever the defendant is or claims under or through a limited owner, the amount of fee shall be one third of such ad valorem fee, subject to the minimum fee specified above:

Provided also that, in any of the cases, falling under this clause except its first proviso, when in addition any consequential relief other than possession is sought the amount of fee shall be one-half of ad valorem fee and when the consequential reliefs also sought include a relief for possession the amount of fee shall be the full ad valorem fee;"

However, there is a residuary clause in Section 6 which is 6(iv)(j) which reads as follows:-

6. Computation of fees payable in certain suits

X X X X X X X X X X X X X X

(iv) (j) for other declarations.

In suits where declaration is sought, with or without injunction or other consequential relief and subject-matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by this Act ad valorem fee payable, as if the amount or value of the subject-matter was one thousand rupees;

In all suits under Clauses (a) to (i) the plaintiff shall state the amount at which the values the relief sought, with the reasons for the valuation;"

From the perusal of the aforesaid provisions, it is apparent that the provisions of Section 6(iv)(d) practically covers all types of definitions regarding immovable property in respect of the ownership or other- interest regarding ownership and Court Fee as prescribed on the market value of the property.

11. The provision of Section 6(iv)(j), however, contemplates a situation where the subject matter in dispute is not susceptible of monetary evaluation and which is not otherwise provided for by the Act. The term "not susceptible of monetary evaluation" obviously prescribes a situation where the rules which are laid down regarding valuation of the property either on the basis of market value or on the basis of multiplier which is used is not available. Ordinarily, the term "not susceptible of monetary evaluation" would mean that the bundle of facts which are mentioned in the plaint and which constitute the cause of action are such that it cannot be evaluated in terms of money. Section 6(iv)(j) therefore, in a sense is a residuary section which seeks to carve out an exception to the general rule which is laid down under Section 6(iv)(d).

12. In the present case, the plaintiffs have filed a suit in which they have stated that they have right in respect of Room No. 302 which has been allotted to defendant No. 4 by virtue of Rehabilitation Scheme which is framed under the provisions of the Rehabilitation Act. The Rehabilitation Scheme prescribes that a tenant or occupant of the premises would have a right of being accommodated in a new building which would be constructed by the Builder who is authorized to develop a slum according to the guidelines which are laid down for the implementation of the reconstruction/redevelopment schemes under the Regulation No. 33(7) of the Development Control Regulations for Greater Bombay, 1991. These guidelines, therefore, have a statutory force and certain rights are created in favour of the occupants/tenants who are residing in the said slum or area which is to be redeveloped. The said Scheme has laid down various eligibility criteria as also the manner in which a Co-operative Society is to be formed, procedure for raising of loan, the prerequisites of construction, proposal etc. The Slum Rehabilitation Act also has been amended and, as a result, rights of certain occupants are also protected. In the present case, if the plaint is read as a whole, it would appear that the plaintiffs are, in fact, seeking a right which stems from the said Scheme. It is the plaintiffs case that they were in occupation of the old structure since 1957 and in para 12 of the plaint, they state that the defendants had threatened to dispossess them from the premises on 9/9/2003. In para 6 of the plaint, it is averred by the plaintiffs that they were jointly entitled to permanent alternative accommodation which was granted in lieu of the old premises. In para 5A of the plaint, they have alleged that the defendant No. 4, in collusion with the other defendants, succeeded in getting the allotment of Room No. 302 in his favour and to the exclusion of the plaintiffs. It is no doubt true that it is not specifically averred in the plaint that the Plaintiffs are seeking to enforce the obligations which are created by the Rehabilitation Scheme. However, the fact remains that in para 4 of the plaint, they have made reference to the Rehabilitation Scheme. They have mentioned in para 5 that they were in possession of the old premises for more than 45 years and that they were jointly entitled to the permanent alternative accommodation. In my view, therefore, the prayer which is aside in the plaint cannot be read in isolation and has to be read in the context of the case which is tried to be made out in the plaint. In my view, therefore, the subject matter of the suit is not susceptible to the monetary valuation as it pertains to the rights which the plaintiffs are seeking and which flow out of the statutory obligations which are created in favour of the occupants of a slum under the Slum Rehabilitation Act as also the Scheme which is framed under Rule 33(7) of the Development Control Rules. The submission made by the learned counsel appearing on behalf of the defendants-respondents, therefore, cannot be accepted. In my view, the Trial Court also has not taken into consideration the averments in the plaint in its entirety and has considered it in a piecemeal manner. There cannot be any doubt regarding the ratio laid down in the various judgments which are relied upon by the learned counsel appearing on behalf of the defendants-respondents. However, in my view, the ratio of the said judgments would not be applicable to the facts of the present case. So far as the Judgment is concerned, reference which was made to the Full Bench was regarding the manner in which the market value of the suit property was to be arrived at for the purpose of jurisdiction of the Court and whether the valuation should be on the basis of Valuer's Report or on the basis of compensation or rent which is charged to the occupant. In the light of the aforesaid controversy, the Full Bench has made various observations in paras 8, 9 and 10 and, finally, in para 11, the Full Bench has given its answer to the two questions in the following manner. Para 11 of the said judgment reads as follows:

"11. Our answers to the two questions referred to us are, therefore, as follows-

The basis for calculating the market value of the property should be the compensation charged and not the rent of the premises in question. It is the net income which accrues to the licensor calculated in the manner stated hereinabove which should be taken as its unit value and its market value should be arrived at by multiplying it by 12 1/2 years' purchase or by one hundred and fifty months' value."

Therefore, in my view, in the said case, the Full Bench was not required to consider whether the questions fall in Section 6(iv)(d) or Section 6(iv)(j) of the Bombay Court Fees Act. The ratio of the said judgment, in my view, would not be applicable to the facts of the present case. So far as the judgment of the Division Bench of this Court in the case of Ratilal Manilal v. Chandulal Chhotalal reported in [1946] XLIX BLR 552 is concerned, the question which fell for consideration before the Division Bench was on the point of court fee when the plaintiff filed a suit for possession of the house, claiming that the defendant is in possession as a licensee and, therefore, the question before the court was: whether the court fee is payable under Section 7(v)(a) of the Bombay Court Fees Act. In the light of the said question, the Division Bench came to the conclusion that the provisions of Section 7(v)(a) would be applicable and held that the subject matter of the suit is what the suit is about and that it did not change the abject of the suit. It, therefore, came to the conclusion that the suit was the house and, therefore, a suit would not have to be valued as per the market value of the house or garden. The Division Bench speaking through Macklin, J. has further observed as under:

"I can imagine hard cases arising out of this provision; I can imagine cases where paying the court-fee on the value of a house might in all the circumstances be an unduly heavy price to pay in the event of the suit being lost. But we cannot do anything about that. The law seems to be as I have said; and if the law is harsh, it can always be amended."

There cannot be any dispute regarding the ratio laid down by the Division Bench of this Court in Manilal's case (supra) which was decided an 24th September) 1946. However, again the question before the Court was not whether the subject matter was susceptible to the monetary evaluation or not. Therefore, in my view, the ratio of the said judgment will not be applicable to the facts of the present case. In the case reported in 1980 Mh.L.J 803 [Mohan Meakin Breweries Ltd. v. Oceanic Imports and Exports Corporation] which was relied upon by the learned counsel appearing on behalf of respondent No. 2, the question before the Court was: whether the suit could be valued under Section 6(iv)(j). In the said Judgment, the learned Single Judge (P.B. Savant, J. as he then was) observed that in order to decide the point of jurisdiction, it was first necessary to look at the frame of the suit itself and it was further observed that, in essence, the plaintiff was claiming that he was entitled to the premium of Rs. 2,48,535/- from the second defendant and that the second defendant was not entitled to claim refund of the same. The learned Single Judge, while construing the provisions of Section 6(iv)(j) has observed as under:-

"The aforesaid provision as attracted only when three conditions are satisfied, namely, that the suit is (i) for declaration, (ii) the subject-matter in dispute is not susceptible of monetary evaluation and (iii) the suit is not otherwise provided for under the Act. Prayer (a) in the present suit is for a declaration that the second defendants are not entitled to demand, recover or receive any payment under the two guarantees or to enforce either of the said guarantees and that the first defendants have no right to make any such payment to the second defendants under either of the two guarantees. The subject-matter in dispute further is the amount due under the said two bank guarantees and the same is clearly susceptible of monetary evaluation. Further Item 7 of Schedule 1 of the said Act covers a suit such as the present one, and therefore, the third condition mentioned in Section 6(iv)(j) is also not satisfied in the present case. The said Item 7 of Schedule I is as follows :-

"Any other plaint, application or petition (including memorandum of appeal), to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss, including cases wherein application or petition is either treated as plaint or is described as the mode of obtaining the relief as aforesaid".

As is clear from what has been stated earlier, the present suit is for a substantive relief of a declaration that under the two bank guarantees, the second defendants are not entitled to demand, recover or receive any amount and the first defendant have no right to make such payment to the second defendants. The suit is also for an injunction restraining the first defendants from making the said payment and the second defendants from enforcing the same thereby preventing a loss to the plaintiffs of the amount guaranteed under the said two guarantees. The suit therefore clearly falls under the said Item 7 of Schedule I of the said Act."

Therefore the learned Single Judge in the facts and circumstances of the said case came to the conclusion that the provisions of Section 6(iv)(j) were not attracted since the suit was clearly filed for preventing a loss of the said amount which was given under the two bank guarantees. In my view, the facts of the present case are entirely different. In the present case, the appellant claims to be jointly entitled to get allotment of alternative accommodation pursuant to the claim of rehabilitation as envisaged under the D.C. Regulation 33(7)(10) and the provisions of Slum Rehabilitation Act. The learned Counsel appearing on behalf of respondent No. 2 further relied upon the judgment of the learned Single Judge (Kantawala, J. as he then was) in the case of Jaikrishna & Co. v. The Municipal Corporation of Greater Bombay and Anr. reported in 1978 U.C.R. 173 in which the learned Single Judge has observed in para 7 as under:-

"7. Under Section 6(iv)(j) of the Act, in suit where declaration is sought, with or without injunction or other consequential relief and the subject matter in dispute is not susceptible of monetary valuation and which are not otherwise provided for by this Act, the Court fees payable shall be thirty rupees. The material part of the Article 7 of the Schedule 1 of the Act provides that in respect of any other plaint, application or petition (including memorandum of appeal) to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss, including cases wherein application or petition is either treated as a plaint or is described as the mode of obtaining the relief as aforesaid, a fee on the amount of the monetary gain or loss to be prevented according to the scale prescribed under Article I shall be paid as and by way of Court fees."

In the said case, the material allegations in the plaint were that M/s. Parshurampura & Sons Pvt. Ltd. were the owners of the immovable property situated at Walkeshwar Road, comprising two plots of land bearing Cadestral Survey Nos. 3 and 7 of Malabar Hill Division and that under the registered indenture of lease dated 23/1/1960 a lease was created in favour of the plaintiff for a period of 15 years and therefore, the plaintiff had prayed for a declaration that the notice dated 31/5/1968 was null and void, illegal and not binding on the plaintiff and further consequential relief of injunction was sought. In the light of the said averments, this Court came to the conclusion that the case would not fall under the provisions of Section 6(iv)(j) but would be governed by Article 7 of Schedule I of the Bombay Court Fees Act and the plaintiff in the said case was bound and liable to pay the court fees accordingly. In para 15 of the said Judgment) it is observed as under:-

"15. .................................

In every case, the substance of the matter has to be judged from the averments made in the plaint, rights claimed thereafter and the reliefs asked for."............................"

[Emphasis supplied]

The learned Single Judge observed that one of the objects of the suit in the said case was to prevent the loss which was capable of being estimated in monetary value. The learned Counsel appearing on behalf of respondent No. 2 further relied upon the Judgment in the case of Nagin Mansukhlal Daoli v. Haribhai Manibhai Patel where the Court was required to decide the question with respect to the jurisdiction and the plaintiff in the said case was a monthly tenant of a flat on the ground floor of a building belonging to Ashok Nagar Co-operative Housing Society Limited situated at 10th North-South Road, Juhu-Vile Parle Development Scheme, Bombay-400056 and, in the said suit, itwas averred that the Leave and License was granted to the defendant and the same came to an end by afflux of time and, therefore, it was alleged that the defendant's occupation of the suit premises since then has become wrongful and illegal and that he has become a trespasser and, therefore, the plaintiff has sought to recover the vacant possession. In the light of the said facts, the Division Bench observed that the declaration sought does not change the real nature of the suit. In para 10 of the said Judgment, Division Bench observed as under:--

"10. Prayer (b) of the plaint, in the guise of a prayer for a mandatory injunction against the defendant to remove himself from the said flat, is in substance no other than a prayer for the recovery of possession of the said flat. Realising full well that the proper relief to pray for would be a decree or order for possession but at the same time being desirous of bringing the suit in this Court and simultaneously not wishing the suit to suffer from technical defect, the draftsman of the plaint has in the said prayer sought to protect the plaintiff by using the phraseology "that the defendant be ordered and decreed by a mandatory order or injunction......"

Thus, really, what is prayed for is a decree for possession. It is now well settled that when we have to determine the nature of the suit what we are to look at is the real substance of the suit and not legal ingenuity in drafting the plaint. The plaint read as a whole and the real substance of the suit leave no doubt that this is a suit between persons who hold the character of a licensor and licensee, which relationship having come to an end according to the plaintiff, the plaintiff has become entitled both in law and under the agreement of licence to recover possession of the property from the defendant, his licensee."

The Division Bench in the said case, therefore, observed that the suit, in effect, is a suit for recovery of possession and by virtue of provisions of Section 41, the Presidency Small Causes Court at Bombay had jurisdiction. In my views ratio of the said judgment would not be applicable to the facts of the present case. Similar Judgments have been cited by the learned Counsel appearing on behalf of the respondents. However, the ratio of the said judgments would not be applicable to the facts of the present case. The learned Counsel appearing on behalf of respondent No. 2 has relied upon the Judgment of the Division Bench in the case of Gulam Mohamed Mohamed Yunus and Anr. v. Lalchand Chelaram and Ors. where the Division Bench had taken into consideration a distinction between Section 6(iv)(j) and Article 7 of Schedule I. In para 12 of the said Judgment, Division Bench observed as under:-

"12. The analysis of the two provisions would show that Section 6(iv)(j) contemplates suits where the subject matter ins dispute is not susceptible of monetary evaluation and where the suit is not otherwise provided for by the Court-fees Act. Article 7, can the other hand, refers to the obtaining of substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss. Thus, whereas Section 6(iv)(j) lays emphasis on the subject matter of the suit, under Article 7 substantive relief is to be looked into. The expression 'subject matter' is a wider expression. In looking to the recitals of the plaint and in assessing the prayers the objective should be to find out what relief is substantively asked for. That would be the primary function for determining the application of Article 7 of Schedule I, so that the next step would toe to find out whether such relief is or is not capable of being valued in terms of money value or at least loss to be occasioned could be estimated in money value. Apparently, if any suit satisfies the element of Article 7, Schedule I, it could be said with reason that the suit is provided for by the Act so that it would automatically be out of the purview of Section 6(iv)(j) of the Act. All these aspects, therefore, have to be looked into for finding out whether Section 6(iv)(j) applies or Article 7 applies and that will have to be done by looking into the subject-matter so far as the former provision is concerned, and by looking to the substantive relief, so far as the latter provision is concerned. The learned counsel for the plaintiffs says that the mortgage-deed or other such document is void, unenforceable and of no legal effect. According to him, that prayer has nothing to do with the evaluation of mortgage property or the mortgage debt. Subject matter of the suit, thus, being the declaration itself, Article 7, Schedule I will not be attracted. As in the court below, he relied upon the decision reported in: Jafferali Allibai v. S.R. Dossa & Co., . The question was discussed in connection with representative suit filed under Section 53 of the Transfer of Property Act, 1882. The suit was by creditors of the defendant for a declaration that a deed of assignment of property passed by him was void, as against them. It was held by Vimadalal, J. "The subject-matter of the suit is not the property comprised in the Deed of Assignment which was sought to be set aside, but is the relief by way of declaration itself, namely, the declaration that the Deed of Assignment was void as against the plaintiffs and the same is not -susceptible of monetary evaluation."

The Division Bench observed that the analysis of the two provisions would show that Section 6(iv)(j) contemplates suits where the subject matter in dispute is not susceptible of monetary evaluation and where the suit is not otherwise provided for by the Court Fees Act. The Division Bench has observed that the expression subject-matter is a wider expression and, therefore, looking to the recitals of the plaint and in assessing the prayers the objective should be to find out what relief is substantively asked for.

13. In the present case, obviously, the relief which is substantively asked for is that the plaintiff is jointly entitled for being allotted a permanent alternative accommodation.

14. The learned Counsel appearing on behalf of the plaintiffs-appellants has relied upon the two judgments reported in 1982 Mh.L.J. 607 [Virndavan (Borivali) Co-operative Housing Society Limited v. Karmakar Bros. and Ors.] and in [ Maria Philomina Pereira v. Rodrigues Construction]. In the case of Virndavan (Borivali) Co-op. Housing Society Limited (supra), the facts were that the appellant in the said case was a registered Co-operative Housing Society Limited which was formed on 4/3/1978 and respondent Nos. 2 to 10, in the said case, were flat owners who had taken flats under the agreement from respondent No. 1. A suit was filed by the Society for a declaration that the Plaintiff-Society is a Co-operative Society and for a mandatory injunction against defendant Nos. 2 to 10 to become members of the Society and for a declaration that the members of the plaintiff-Society have paid the entire amount of their purchase price to defendant No. 1 and that defendant No. 1 was liable to execute deed or conveyance in favour of the plaintiff. This Court, after taking into consideration the averments in the plaint, observed that the case squarely fell within the provisions of Section 6(iv)(j) as it related to the performance of the obligation. In para 21 of the said Judgment this Court has observed as under:-

"21. There is another aspect which cannot be lost sight of. It is well known that the co-operative ownership is new phenomenon born in 20th Century on account of acute shortage or space. The Co-operative Societies are farmed with a view to assist and help the people of moderate means to have their own flats, which they cannot individually afford on high costs. It is also notorious that the Co-operative Societies are helped by offering loans from the housing financial society and these loans are repayable by the Co-operative Societies. They are given for building purposes. Therefore, I do not think that such societies when they are involved in litigation, should be subjected to a burden of heavy Court fees. I also do not think that the intention of Legislature in enacting the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 was to impose any such burden on the respective parties governed by the provisions of the said Act, if they are involved in litigation because of non-compliance with the provisions of the said Act."

15. In the present case, the specific averments are not made in the plaint by the plaintiff regarding the statutory obligations and the enforcement of the said statutory obligations. If the averments in the plaint are considered in their entirety, the principal relief which the plaintiffs are seeking is the performance of the obligation which is created in their favour by virtue of the Scheme which is framed under the Development Control Regulations as also under the Slum Regulation Act. In the case also a similar situation had arisen where the learned Single Judge (H. Suresh, J. as the then was) relied upon the ratio laid down in Virndavan (Borivalli Co operative Housing Society Limited (supra) and held that the City Civil Court had jurisdiction to entertain the suit. In the light of above, I am of the view that the order of the Trial Court cannot be sustained and will have to be set aside.

16. Accordingly, the following order is passed:-

ORDER

The Order of the Trial Court is set aside. The Trial Court is directed to decide the suit as expeditiously as possible. Ad-interim order passed by the Trial Court dated 20/11/2003 will continue. However, liberty is given to both the parties to reagitate the question of continuation of the ad-interim relief and the Trial Court shall, after considering the rival contentions, pass appropriate order of ad-interim relief or decide the Notice of Motion expeditiously within a period of three months.

Appeal from Order is allowed in the above terms.

All concerned to act on the copy of this Order duly authenticated by the Associate of This Court.