Bombay High Court
Mr. Manoj Bhikamchand Kucheria vs Mr. Sonu Satu Patil And Others on 23 August, 2013
Author: R.K. Deshpande
Bench: R.K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
CIVIL APPELLATE JURISDICTION
Writ Petition No.5775 of 2012
With
Civil Revision Application No.482 of 2012
Writ Petition No.5775 of 2012
1. Mr. Manoj Bhikamchand Kucheria,
Age 40 years,
Occupation - Medical Practitioner,
Residing at Mohopada,
Taluka Khalapur,
District Raigad.
2. Mr. Padamshee Shyamshee Cheda,
Age 60 years,
Occupation - Business,
Residing at Shashi Villa,
Third Floor, Tilaknagar,
Near Post Office,
Dombivali, District Thane. ... Petitioners
Versus
1. Mr. Sonu Satu Patil and others,
Age 75 years,
Occupation - Agriculturist.
2. Mr. Narayan Sonu Patil,
Age 42 years,
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Occupation - Service.
Both residing at Panshil,
Post Rasayani,
Taluka Khalapur,
District Raigad.
3. Smt. Gouru K. Patnaik,
Age 60 years,
Occupation - Nil,
R/At Post Bhatwadi,
Ris, Taluka Khalapur.
4. Mr. Mohan Dattatraya Kawde,
Age 58 years,
Occupation - Business.
5. Mr. Pandharinath Devalal Lohar,
Age 58 years,
Occupation - Nil.
6. Mr. Vijay Jagannth Jagtap,
Age 58 years,
Occupation - Business.
7. Mr. Tukaram Shankar Bhoir,
Age 55 years,
Occupation - Business,
Gangai Bungalow,
1st Floor, Plot No.5,
Road No.6, Sector 19.
8. Sou. Nada Ashok Lohar,
Age 60 years,
Occupation - Nil,
R/At Durgamana Colony,
Chanbharli,
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Post Mohopada,
Taluka Khalapur.
9. Sou. Kavita Ashok Lohar,
Age 51 years,
Occupation - Nil,
R/At Chanbali, Taluka Khalapur.
10. Mr. Arvind Gajanan Kulkarni,
Age 62 years, Occupation - Nil,
R/At New Panvel, Taluka Panvel,
District Raigad.
11. Mr. R.N. Naik,
Age 70 years,
Occupation - Nil,
R/At New Panvel, Taluka Panvel,
District Raigad.
12. Mr. G.B. Mali,
Age 52 years,
Occupation - Nil,
R/At Block No.9,
Surya Co-op. Housing Society,
Ris.
13. Sou. Anita Jagdish Paliwal,
Age 50 years,
Occupation - Nil,
R/At Block No.11,
Surya Co-op. Housing Society,
Ris, Mohopada, Taluka Khalapur.
14. Mr. Vikas Ramdas Patil,
Age 55 years,
Occupation - Nil,
R/At Takshila Co-op. Housing
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Society, 1st Floor Block No.6,
Ramnagar, Dombivali,
District Thane.
15. Sou. Vandna S. Naimbalkar,
Age 65 years,
Occupation Nil,
R/At Bingo Plaza No.4 B Wing
R-203, Manpada Road,
Shrikanwadi, Dombivali,
District Thane.
16. Mr. Padmakar Kashinath Panchal,
Age 50 years,
Occupation - Service,
R/At Yashopuram Vasant Vihar,
Panvel, Taluka Panvel,
District Raigad. ... Respondents
Shri P.B. Shah and Smt. Jaymala Oswal, Advocates for Petitioners.
Shri Kiran Kandipile, Advocate for Respondents.
Civil Revision Application No.482 of 2012
1. Mr. Manoj Bhikamchand Kucheria,
Age 40 years,
Occupation - Medical Practitioner,
Residing at Mohopada,
Taluka Khalapur,
District Raigad.
2. Mr. Padamshee Shyamshee Cheda,
Age 60 years,
Occupation - Business,
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Residing at Shashi Villa,
Third Floor, Tilaknagar,
Near Post Office,
Dombivali, District Thane. ... Applicants
Versus
1. Mr. Sonu Satu Patil and others,
Age 75 years,
Occupation - Agriculturist.
2. Mr. Narayan Sonu Patil,
Age 42 years,
Occupation - Service.
Both residing at Panshil,
Post Rasayani,
Taluka Khalapur,
District Raigad.
3. Smt. Gouru K. Patnaik,
Age 60 years,
Occupation - Nil,
R/At Post Bhatwadi,
Ris, Taluka Khalapur.
4. Mr. Mohan Dattatraya Kawde,
Age 58 years,
Occupation - Business.
5. Mr. Pandharinath Devalal Lohar,
Age 58 years,
Occupation - Nil.
6. Mr. Vijay Jagannth Jagtap,
Age 58 years,
Occupation - Business.
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7. Mr. Tukaram Shankar Bhoir,
Age 55 years,
Occupation - Business,
Gangai Bungalow,
1st Floor, Plot No.5,
Road No.6, Sector 19.
8. Sou. Nada Ashok Lohar,
Age 60 years,
Occupation - Nil,
R/At Durgamana Colony,
Chanbharli,
Post Mohopada,
Taluka Khalapur.
9. Sou. Kavita Ashok Lohar,
Age 51 years,
Occupation - Nil,
R/At Chanbali, Taluka Khalapur.
10. Mr. Arvind Gajanan Kulkarni,
Age 62 years, Occupation - Nil,
R/At New Panvel, Taluka Panvel,
District Raigad.
11. Mr. R.N. Naik,
Age 70 years,
Occupation - Nil,
R/At New Panvel, Taluka Panvel,
District Raigad.
12. Mr. G.B. Mali,
Age 52 years,
Occupation - Nil,
R/At Block No.9,
Surya Co-op. Housing Society,
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Ris.
13. Sou. Anita Jagdish Paliwal,
Age 50 years,
Occupation - Nil,
R/At Block No.11,
Surya Co-op. Housing Society,
Ris, Mohopada, Taluka Khalapur.
14. Mr. Vikas Ramdas Patil,
Age 55 years,
Occupation - Nil,
R/At Takshila Co-op. Housing
Society, 1st Floor Block No.6,
Ramnagar, Dombivali,
District Thane.
15. Sou. Vandna S. Naimbalkar,
Age 65 years,
Occupation Nil,
R/At Bingo Plaza No.4 B Wing
R-203, Manpada Road,
Shrikanwadi, Dombivali,
District Thane.
16. Mr. Padmakar Kashinath Panchal,
Age 50 years,
Occupation - Service,
R/At Yashopuram Vasant Vihar,
Panvel, Taluka Panvel,
District Raigad. ... Non-Applicants
Shri P.B. Shah and Smt. Jaymala Oswal, Advocates for Applicants.
Shri Kiran Kandipile, Advocate for Non-Applicants.
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Coram : R.K. Deshpande, J.
Date of Reserving the Judgment : 23-8-2013.
Date of Pronouncing the Judgment : 25-9-2013 Common Judgment :
1. In Writ Petition No.5775 of 2012, the challenge is to the order dated 11-3-2010 passed below Exhibit 18 by the Trial Court rejecting an application under Order VII, Rule 11(b) of the Civil Procedure Code, raising an objection as to the valuation of the suit and the pecuniary jurisdiction of the Court to entertain, try and decide the suit. The Trial Court has held that the claim in the suit has been valued for the purpose of court fee and jurisdiction under Section 6(v)(a) of the Bombay Court Fees Act, 1959, which is legal, correct and proper.
2. The prayer clause in Civil Revision Application No.482 of 2012 indicates that the challenge is to the same order dated 11-3-2010 passed by the Trial Court on the application under Order VII, Rule 11(b) of the Civil Procedure Code, filed in ::: Downloaded on - 27/11/2013 20:11:26 ::: 9 wp5775.12.cra482.12.odt Regular Civil Suit No.42 of 2008. However, the order annexed is one passed under Section 9-A of the Civil Procedure Code, raising a preliminary objection to the pecuniary jurisdiction of the Court to entertain, try and decide the suit. The application has been rejected, holding that the valuation of the suit under Section 6(v)(a) of the Bombay Court Fees act, 1959 is correct and proper.
3. Undisputedly, the parties in both these cases are the same and the orders challenged are also passed in the same suit, i.e. Regular Civil Suit No.42 of 2008.
4. In the common judgment delivered by this Court on 25-9-2013 in Writ Petitions Nos.722 of 2013, 5775 of 2012 and Civil Revision Application No.482 of 2012, it has been held by this Court in paragraphs 50 and 68 to 72 as under :
"50. The law on the point of lack of inherent jurisdiction on one hand and the lack of ::: Downloaded on - 27/11/2013 20:11:26 ::: 10 wp5775.12.cra482.12.odt territorial or pecuniary jurisdiction on the other hand, can be summarized as under :
(i) A decree passed by the Court lacking territorial or pecuniary jurisdiction does not automatically become void; at the most it becomes voidable, in the sense that it could be challenged in an appeal or revision on limited grounds.
(ii) A decree passed by a Court with lack of inherent jurisdiction becomes null and void in law and its validity can be set up whether and whenever it is sought to be enforced or relied upon - be it at the stage of execution or even in the collateral proceedings.
(iii) The factors, like waiver, acquiescence, consent, estoppel, etc., are not at all relevant in the case of a decree passed by a Court with lack of inherent jurisdiction; whereas, these factors are relevant where a decree is passed by a Court with lack of pecuniary and territorial jurisdiction.
(iv) The question of valuation of a suit or an ::: Downloaded on - 27/11/2013 20:11:26 ::: 11 wp5775.12.cra482.12.odt appeal is closely interlinked to some extent with the question of payment of court-fee and pecuniary jurisdiction of the Court, and the provisions relevant are Sections 8 and 11 of the Suits Valuation Act, Section 8 and 14 of the Bombay Court Fees Act, Sections 24 and 8 of the Bombay Civil Courts Act, and Section 21 of the Civil Procedure Code.
ig (v) The question of categorization or classification of a suit under the different provisions of the Bombay Court Fees Act, which may not have any bearing on the question of pecuniary jurisdiction of the Court, can independently be dealt with."
"68. If the claim for rejection of a plaint under clauses (b) and (c) for under-valuation is rejected by the Trial Court, then it is a decision on an inquiry under Section 8 of the Bombay Court Fees Act. The decision on such question of valuation rendered by the Trial Court then becomes final as between the parties in terms of sub-section (1) of Section 14 of the said Act. In such a situation, the defendant, who may believe, ::: Downloaded on - 27/11/2013 20:11:26 ::: 12 wp5775.12.cra482.12.odt and even honestly, that the suit has not been properly valued, has no right to move the superior Court either by way of appeal or revision against the order adjudging the valuation, for the reason that it is a matter between the plaintiff and the State Government and other party has no role to play. It has been held by the Apex Court in the case of Sri Rathnavarmaraja v. Smt. Vimla, reported in AIR 1961 SC 1299, that whether ig proper court-fee is paid, is a question between the plaintiff and the State Government, and whenever such suit comes before a Court of Appeal, Reference or Revision, and if such Court considers that the said question has been wrongly decided, then it can direct the party to pay so much additional fee as would have been payable had the question been rightly decided. Hence, the question of entertaining either a revision under Section 115 of CPC or a petition under Article 226 or 227 of the Constitution of India, may not at all arise."
"69. The question of valuation of the suit is also interlinked with the pecuniary jurisdiction of the Trial or the Appellate Court to entertain, try ::: Downloaded on - 27/11/2013 20:11:26 ::: 13 wp5775.12.cra482.12.odt and decide the suit or the appeal through the provisions of Section 24 and Section 8 respectively of the Bombay Court Fees Act prescribing the pecuniary limits of jurisdiction. Whenever any decision either on the question of valuation of the suit or payment of the court-fee affects the pecuniary jurisdiction of the Trial or the Appellate Court to entertain, try and decide the suit or an appeal, the provisions of ig sub-section (2) of Section 21 of CPC along with Section 11 of the Suits Valuation Act and Section 14 of the Bombay Court Fees Act come into operation. A combined reading of all these provisions indicate that any interference in such order can only be when an Appellate or the Revisional Court is satisfied that - (i) such objection was taken at the first instance; (ii) there has been a consequent failure of justice; and (iii) the wrong valuation has prejudicially affected the merits of the case. This, however, does not mean that the question of valuation also covers the classification or categorization of suits under various provisions of the Bombay Court Fees Act, which may be dealt with in accordance with law."::: Downloaded on - 27/11/2013 20:11:26 ::: 14
wp5775.12.cra482.12.odt "70. The Apex Court, in the decisions rendered in the cases of R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Work Ltd., reported in (1993) 2 SCC 130; and Subhash Mahadevasa Habib v. Nemasa Ambada Dharmadas, reported in (2007) 13 SCC 650, has held that a decree passed by a Court lacking pecuniary jurisdiction, does not automatically become void. At the most, it becomes voidable and could be challenged, ig provided the aforesaid conditions at (a) to (d) are satisfied. It has held that if the objection to the pecuniary jurisdiction of the Court is rejected, then such an order can be set aside either in appeal or revisional jurisdiction subject to the conditions - (a) that such an objection was taken in the Court of first instance at the earliest opportunity; (b) that in all the cases where the issues are settled, then at or before such settlement of the issues; and (c) that there has been a consequent failure of justice; or (d) that wrong valuation has prejudicially affected the disposal on its own merits.
"71. In the decision in Kiran Singh's case, cited supra, it was held that the prejudice is not a ::: Downloaded on - 27/11/2013 20:11:26 ::: 15 wp5775.12.cra482.12.odt mere change of forum, but it must be something other than an appeal being heard in a different forum. It is also different from mere error in the decision on merits. An instance of prejudice is quoted where the suit to be tried by the regular Court has been tried by the Court of Small Causes in a summary inquiry where the provisions of discovery or inspection or that of evidence are not in extenso applicable and no right of appeal is ig available against such decision. There may be cases where as a result of the order of the Trial Court deciding the question of valuation or payment of court-fee will not change the pecuniary jurisdiction of the Court passing such an order."
"72. In all the aforestated situations, when a test to interfere in such order is the same so far as appeal and revision is concerned, there cannot be a different test to interfere in such order in exercise of jurisdiction either under Section 115 of CPC or under Article 226 or 227 of the Constitution of India. In such a situation, the High Court will be slow in interfering with such an order at an interlocutory stage, when such ::: Downloaded on - 27/11/2013 20:11:26 ::: 16 wp5775.12.cra482.12.odt question can be more conveniently and effectively dealt with in a regular appeal against a decree or a final decision."
5. In view of the aforesaid position of law, the orders impugned in both these cases can be challenged in an appeal after the ultimate decision in Regular Civil Suit No.42 of 2008. No interference is called for in the impugned orders. Hence, the writ petition and the civil revision application are dismissed. No order as to costs.
JUDGE.
P.M. Adgokar, Personal Assistant/ PD Lanjewar, Private Secretary ::: Downloaded on - 27/11/2013 20:11:26 :::