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2014 DIGILAW 647 (BOM)

Mount Mary Enterprises v. Jivratna Medi Treat

2014-03-10

R.M.SAVANT

body2014
JUDGMENT : R.M. Savant, J. 1. The writ jurisdiction of this Court is invoked against the order dated 22nd November, 2013 passed by the learned Judge of the City Civil Court, Greater Mumbai, by which order, the Chamber Summons for amendment of the plaint, so as to amend the jurisdiction clause, came to be rejected. It is required to be noted that the suit in question has been filed principally for the following reliefs: "The plaintiff therefore prays that:-- a. the plaintiff is entitled to a declaration by this Hon'ble Court that the Articles of Agreement dated 26th December 2002 executed by and between Smt. Yashodabai yashwant Shahade, the landlord (since deceased) allegedly through her Constituted Attorney Yatin Raoji Shahade and the defendant No. 1 is illegal, invalid and thus null and void as the same is executed without authority to do so. b. (Deleted) c. Pending the hearing and final disposal of the suit, this Hon'ble Court be pleased to appoint the Court Receiver, High Court, Bombay or some other fit and proper person as receiver for the said premises i.e. premises No. 16 situated on the first floor of the structure known as Yashwant Niwas situated at N.C. Kelkar Road, Dadar (West), Mumbai 400 028 on land bearing Cadastral Survey No. 53, T.P.S. IV, Mahim Division and to appoint the Plaintiff as the agent of the Court Receiver, High Court, Bombay without any security and without any charge. d.........." Hence, what is sought is a declaration that the agreement entered into between the predecessor of the plaintiff Yashodabai Yashwant Shahade through her Constituted Attorney Yatin Raoji Shahade and the defendant No. 1 is illegal, invalid and thus null and void. The agreement in respect of which the declaration is sought is valued at Rs. 13,50,000/- (Rupees thirteen lacs fifty thousand only), on the basis of which, in the jurisdiction clause, the Suit is valued at Rs. 14,00,000/- (Rupees fourteen lacs only). The instant Chamber Summons No. 1817 of 2013 has been filed on the basis that the valuation of the suit property is more than Rs. 1,20,00,000/- (Rupees one crore twenty lacs only) and that the original plaintiff is ready to pay the deficit Court fees. 14,00,000/- (Rupees fourteen lacs only). The instant Chamber Summons No. 1817 of 2013 has been filed on the basis that the valuation of the suit property is more than Rs. 1,20,00,000/- (Rupees one crore twenty lacs only) and that the original plaintiff is ready to pay the deficit Court fees. The trial Court, considered the said application on the touch stone of the relief sought in the suit which is, as indicated above, for a declaration in respect of the said agreement and not for possession of the suit property and in the said context held that the jurisdiction clause based on the consideration mentioned in the agreement is proper and therefore the amendment cannot be allowed. The learned Counsel appearing for the petitioner seeks to rely upon a judgment of the Apex Court in the case of (A. Nawab John and ors. v. V.N. Submmaniyam), reported in 2013 (7) Bom. C.R. 873 (S.C.) : (2012) 7 S.C.C. 738 . The said judgment is an exposition of the Apex Court as regards the power of the Civil Court under Order 149 (sic section 149) of the Civil Procedure Code. In my view, the said judgment cannot aid the petitioner for seeking the relief which was sought by way of the Chamber Summons. No case for interference is therefore made out. The writ petition is accordingly dismissed.