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1976 Supreme(Bom) 102
IN THE HIGH COURT OF BOMBAY
(G.N. Vaidya and P.R. Mridul JJ.)
HIRANAND ASSUMAL - Appellant
Versus
MOHANDAS VISHINDAS CHAINANI - Respondent
Appeal No. 75 of 1975
Decided on 26/ 7-4-1976
Advocates appeared
For respondent-R.W. Adik with A.G. Kriplani and L.A. Kriplani. M.R. Kotwal, Assistant Government Pleader as per notice.
The market value of a house, which is the subject matter of a suit, must be determined having regard to the averments in the plaint and the facts placed by the parties relevant to the valuation made in the plaint, such as the legal interests which may be existing in the house, whether the interests are interdependent or independent or joint or contractual or statutory.
Headnote:
COURT FEES - Valuation of suit property for purposes of court fees - Market value of house or garden - Determination - Principles - Bombay Court Fees Act, 1959, section 6(v).
Fact of the Case:
Plaintiff, a tenant, filed a suit in the Bombay City Civil Court against the defendant, his ex-licensee, seeking possession of the suit premises. The defendant objected to the valuation of the suit property for purposes of court fees, contending that the market value was in excess of Rs. 25,000. The trial court upheld the defendant's objection and ordered the return of the plaint for presentation to the proper court. The plaintiff appealed to the High Court, which remanded the suit for hearing on other issues. The defendant filed a Letters Patent Appeal, which was pending when the Supreme Court set aside the earlier decisions of the City Civil Court, the single Judge, and the Division Bench on the issue of res judicata.
Finding of the Court:
The High Court held that there was no conflict between the judgments of Patel J. and Chandrachud J. in determining the market value of the premises in dispute in the two suits before them. Both judges had applied the well-settled principles for determining the market value of the property for the purposes of court fees.
Issues: 1. Whether there was a conflict between the judgments of Patel J. and Chandrachud J. in determining the market value of the premises in dispute. 2. Whether the principles laid down by the Division Bench in Miss Aninha D'Costa v. Mrs. Parvatibai M. Thakur were correctly applied by the trial court in determining the market value of the suit property.
Ratio Decidendi: 1. The market value of a house, which is the subject matter of a suit, must be determined having regard to the averments in the plaint and the facts placed by the parties relevant to the valuation made in the plaint, such as the legal interests which may be existing in the house, whether the interests are interdependent or independent or joint or contractual or statutory. 2. Such interests will have to be taken into consideration with due regard to the laws regarding the transfer of the said interest in the property. 3. The price which a willing purchaser will pay to a willing vendor would be the agreed price as such willing purchasers or vendors will take such interest into consideration when determining prudently the fair or reasonable price of the property.
Final Decision: The High Court directed that the matter be placed before any single Judge for disposal of the Appeal from order on the other points raised by the appellant.
VAIDYA J.- The above Appeal from order was referred to Division Bench on January 21, 1976, by Naik: J. as he was of the view that there was a conflict of judgments of this Court on the question of the proper valuation for the purposes of Court fee of suit of the nature filed by the Appellant in the Bombay City Civil Court.
2. There is no dispute a bout the following facts: The plaintiff is the tenant of the suit premises, paying rent to his landlord, at the rate of the standard rent, fixed under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, i.e. Rs. 171-65. There is also no dispute that he gave part of the premises in the suit shop No. 19 Block B Cusrow Baug, Colaba-Causeway, Bombay 1, to the respondent-defendant by way of "leave and licence" in April 1955 for Rs. 325 p. m. as "licence fee or compensation", which was subsequently raised to Rs. 350 p. m. from February 1, 1958.
3. The appellant filed a suit in City Civil Court as far back as in the year 1961 alleging that he had terminated the leave and licence granted to the defendant in March 1958; but subsequently the defendant dispossessed him from some additional portion of the premises in possession of the plaintiff.
4. The suit was resisted on numerous grounds. Two preliminary issues were tried by the learned Judge of the City Civil Court relating to res judicata and pecuniary jurisdiction. The City Civil Court decided the issue of res judicata in favour of the defendant and dismissed the suit as barred by res judicata. The appellant filed an appeal to this Court. The appeal was allowed by a single Judge and the suit was remanded for hearing on other issues. The Letters Patent Appeal filed by the defendant was dismissed. The defendant carried an appeal against the said decision of this Court to the Supreme Court.
5. In the meanwhile, as no stay of the hearing of the suit was ordered the suit was taken up for hearing in the City Civil Court on the other preliminary issue with regard to pecuniary jurisdiction. The City Civil Court upheld the defendant's objection and ordered the return of the plaint for presentation to the proper Court. The plaintiff filed an Appeal against the said Order and the single Judge of this Court allowed the appeal.
6. The defendant filed a Letters Patent Appeal against the said decision. The Letters Patent Appeal was pending when the Supreme Court heard the earlier appeal and by its judgment dated. September 18, 1975, set aside the decision of the City Civil Court, the decision of the single Judge of this Court and also of the Division Bench of this Court on the question of res judicata. The Supreme Court disposed of the appeal before it with the following directions and observations :-
"If finally the appellant does not succeed on the question of pecuniary jurisdiction of the City Civil Court to try the Suit No. 2020 of 1961, then that Court will have to decide this issue of res judicata again, but, in the circumstances that Court is directed not to decide this issue as a preliminary issue but to decide it as at the trial of the suit along with other issues. If, however, the appellant Ultimately succeeds on the question of jurisdiction and the plaint stands returned from the Court of the City Civil Court Judge, in that event, it will be open to the Appellant to pray to the Court where the Plaint may be re-instituted to try the issue of res Judicata as a preliminary issue and it will be for that Court to accede to this prayer or not to accede to it."
7. On November 12, 1975, the Letters Patent Appeal No. 55 of 1975 pending in this Court came up for hearing before Hajarnavis and Mukhi JJ., who set aside the order passed by the single Judge, who had remanded the suit after setting aside the order passed by the City Civil Court directing the return of the plaint on the ground that the City Civil Court had no pecuniary jurisdiction; and sent the case to the single Judge for disposal of the appeal according to law on othe
