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2004 Supreme(Bom) 1006
IN THE HIGH COURT OF BOMBAY
Daga V.C., J.
Basant Kumar Jain .... Appellant.
Versus
Chief Executive Officer, M.I.D.C. others.... Respondents.
Appeal from Order No. 307 of 2002, decided on 21-7-2004.
Advocates appeared :
Arun Kumar Barthakur, for appellant.
Mrs. Deepa Chavan i/b. Little Co., for respondents.
Headnote:Civil Procedure Code, 1908 - Section 21(2) - Suits Valuation Act, 1887, Section 11 - Objection as to pecuniary jurisdiction. - Since objection to pecuniary jurisdiction of Court is "most technical of technicalities hence decree of Court cannot be set aside on such technical ground. - It is settled law that objection to the territorial and pecuniary jurisdiction of a Court is ``the most technical of technicalities’’ and that such a technicality cannot be allowed to be used to set aside the decree on the technical ground. Even if it is held that because of under valuation of the suit the Civil Court (J.D.) Pampri, a Court inferior in hierarchy to the Civil Court (SD) Pune has decided the suit without it having pecuniary jurisdiction to try the suit, even then, the defendants cannot succeed unless they demonstrate and prove that they have suffered any prejudice or that there was consequence failure of justice on merits. No prejudice or consequent failure of justice could be demonstrated by the defendant. Indeed, the trial Court had allowed every opportunity available to the defendant to lead evidence in support of its contest to the claim made by the plaintiff. Indeed, under valuation of the suit has enlarged the defendant’s right of appeal, while they would have only a right of one appeal to the High Court if the suit had been correctly valued. By reason of under valuation the defendant would be entitled to exercise two rights of appeal, one to the District Court and another to the High Court. As such, no prejudice whatsoever has been suffered by the defendant. There is also no consequent failure of justice on merits. The Judge, thus, was wrong in setting aside the judgment and decree passed by the trial Court. 2004(4) SCC 26, AIR 1954 SC 340, (1993) 3 SCC 130, Ref., AIR 1981 SC 1683, 1955 SCA 725 : AIR 1954 SC 340, (4) LR 46IA 24, (1993) 2 SCC 130, AIR 1992 Gau 91, AIR 1995 Raj 284, AIR 1986 Del 293 - Relied on.
Factual Matrix:
2.The appellant herein (the "plaintiff" for short) filed civil suit in the Court of Civil Judge, SD, Pune, contending that the plot bearing No. A-2 located in H block, MIDC, Pimpri Industrial Estate, Bhosari, Pune, was reserved for industrial purpose. The plaintiff applied for allotment of this plot under Regulation 4(ii) of the M.I.D.C. Disposal of Land Regulations, 1975 vide his application dated 10-1-1986 in the prescribed form (Ex. 49), with a view to establish manufacturing unit. (The said plot is hereinafter referred to as "suit plot" for the sake of brevity.
3.The defendants-respondents (the 'defendant' for short) rejected the laid application of the plaintiff for the allotment of the said plot being reserved for amenity purposes. The plaintiff alleged that as per section 2(ii) of the Maharashtra Industrial Act, 1961 (the "MIDC" Act for short) whenever plot is reserved for an amenity, the State Government is required to specify such purpose by publishing notification in the Official Gazette. Since no such notification was ever published by the MIDC, as he contends that suit plot was never reserved for any amenity. All other neighbouring plots were allotted for industrial purposes. The plaintiff alleged that the defendants on 17-3-1989 published one public notice in daily "Sakal" inviting applications for allotment of the plots for commercial purposes. The suit plot was shown to be available for allotment in the said advertisement as such refusal to allot suit plot to the plaintiff was mala fide.
4.The plaintiff further alleged that the defendant M.I.D.C. always followed the "First Come First Served" principle for allotment of plots. That it never invited tenders for allotment of the plots. The plaintiff, thus, asserted that the M.I.D.C. was also bound to follow the same norm while considering his application and was bound to allot the said plot following the principle of "First Come First Served" he being the first applicant. The plaintiff based on this assertion, sought declaration that he was entitled to the allotment of the said suit plot at the rate prevailing on the date of his application, i.e. on 10-1-1986. He valued suit claim at Rs. 600/- and paid Court fee thereon as prescribed under section 6(iv)(i) of the Bombay Court Fees Act, 1959.
5.On being summoned, defendant appeared and contested the claim of the plaintiff on various grounds. Initially, it objected to the jurisdiction of the Civil Court at Pune to entertain and try the suit on the ground that a new Court having been established at Pimpri-Chinchwad, the Pune Court has a jurisdiction to try the suit since the suit plot situate within the territorial jurisdiction of the Pimpri Court. Consequently, jurisdiction of the Court of Civil Judge, SD, Pune was sought to be excluded for want of territorial jurisdiction over the subject-matter. The Civil Judge, SD, Pune, accepted the said objection taken by the defendant and by an order dated 4-8-1989 directed return of plaint to the plaintiff under Order VII, Rule 10 of C.P.C. for presenting it to the proper Court. Parties to the suit were directed to appear before the Civil Judge, JD, Pimpri, on 5-8-1989.
6.In view of the aforesaid order, a fresh suit came to be filed being Reg. Civil Suit No. 332/89 in the Court of Civil Judge, JD, Pimpri. The defendants submitted their written statement. The trial Court, considering rival pleadings, was pleased to frame as many as 7 material issues; one of such issues was: whether suit has been property valued?
7.The trial Court, after recording evidence and hearing parties to
