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2015 DIGILAW 368 (CAL)

Subimal Kanti Paul v. Parimal Paul

2015-04-23

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

body2015
JUDGMENT : Jyotirmay Bhattacharya, J. Re: FMAT 1074 of 2012 1. Two first miscellaneous appeals were filed by two different parties challenging a common order passed by the Learned Trial Judge on 3rd August, 2012 Order No.7 in T.S. No. 929 of 2012. One of such appeals was filed by the plaintiff/appellant. The other appeal which was filed by the defendants is registered as FMAT 1035 of 2012. Both the aforesaid appeals were heard by us simultaneously. 2. Let us first of all consider the merit of the plaintiff’s appeal being FMAT 1074 of 2012. 3. By a common order passed by the Learned Trial Judge, two different applications filed by two different groups of respondents were disposed of. By the said order, the Learned Trial Judge was also pleased to extend the ad-interim order of injunction for a limited period. The defendant no. 2 filed an application praying for return of the plaint to the plaintiff as according to him, the Court lacks pecuniary jurisdiction to entertain or try the said suit. It was contended by the defendant that since the valuation of the suit property is Rs. 46,83,295/-, the plaintiff ought to have valued the reliefs claimed in the suit at Rs. 46,83,295/-. It was further contended therein that since the City Civil Court at Calcutta did not have the jurisdiction to entertain any suit where the valuation of the suit exceeds Rs.10 lac, the Learned Trial Judge was required to return the plaint to the plaintiff for filing the same to the competent court which has both pecuniary and territorial jurisdiction to entertain such suit. The said application of the defendant no.2 was allowed by the Learned Trial Judge. 4. The plaintiff is aggrieved by the said order. Hence, he has filed the instant miscellaneous appeal before this Court. 5. Mr. Dutta, learned advocate appearing for the plaintiff/appellant submits that the plaintiff has filed a suit for declaration and injunction. As such, he can value the relief claimed in such suit as per his own choice. By drawing our attention to the relief claimed in the suit, he pointed out that his client has simply prayed for a declaration to the effect that the plaintiff has the right of pre-emption and/or repurchase the sale of the suit property which was made by the defendant no.1 in favour of the defendant nos. By drawing our attention to the relief claimed in the suit, he pointed out that his client has simply prayed for a declaration to the effect that the plaintiff has the right of pre-emption and/or repurchase the sale of the suit property which was made by the defendant no.1 in favour of the defendant nos. 2, 3 and 4 through three different deeds of conveyance. 6. He has also contended that the principal relief claimed in the suit is declaration. Incidental relief which was claimed in the said suit, is injunction. As such, the plaintiff has valued the relief claimed by way of declaration at Rs. 100/- and the relief claimed for injunction was valued at Rs. 100/-. 7. Let us now consider as to how far the plaintiff was justified in valuing the relief claimed in the suit at Rs.200/- in the facts of the instant case. 8. It is well settled that though in a suit for declaration and permanent injunction, the plaintiff could value the relief as per his own choice where there is no objective standard of assessing the valuation. However, the position is different where the relief was capable of appropriate valuation in which case the plaintiff could not arbitrarily value the relief according to his own choice. 9. In the instant case, the plaintiff sought for a declaration for recognising his right to exercise the right of pre-emption in respect of three different transactions made by the defendant no.1 in favour of defendant nos. 2, 3 and 4 through three different registered sale deeds. Consideration stated in one of such sale deed was Rs. 1,50,000/-. Consideration for the other transaction mentioned in the other sale deed was Rs. 5 lac. Consideration for the other transaction mentioned in the sale deed was Rs. 3,50,000/-. 10. Thus, when the plaintiff is seeking a declaration for recognising his right of pre-emption under Section 22 of the Hindu Succession Act in respect of the transaction which are valued at Rs. 10 lac as a whole, we are of the view that the relief for declaration and injunction is capable of valuation and in such cases the plaintiff in our considered view, cannot whimsically value the relief claimed in the said suit as per his own choice. 11. 10 lac as a whole, we are of the view that the relief for declaration and injunction is capable of valuation and in such cases the plaintiff in our considered view, cannot whimsically value the relief claimed in the said suit as per his own choice. 11. On reading the plaint as a whole, we are of the view that the plaintiff should have valued the relief for declaration claimed in the suit at Rs. 10 lac and for injunction being an incidental relief could have been valued at Rs. 100/-. 12. Mr. Dutta, learned advocate in his usual fairness submits that the plaintiff should have valued the relief claimed in the suit on the basis of the actual consideration price passed for the disputed transactions as stated in the sale deeds. He thus, submits that his client will amend the valuation statement accordingly, and will pay requisite fees on such valuation. 13. Let us now consider as to whether the City Civil Court is competent to try this suit, in case such amendment is carried out by the plaintiff. 14. Having regard to the fact that subsequent notification was issued in the Calcutta Gazette on 10th October, 2013 by enhancing the pecuniary jurisdiction of the Civil Court to try and entertain the Civil suit upto Rs. 1 crore, we hold that City Civil Court has the jurisdiction to try the said suit even if the suit is valued at rupees ten lac one hundred. 15. As such, we set aside that part of the impugned order by which the Learned Trial Judge was pleased to allow the application of the defendant no. 2 and direct for return of the plaint to the plaintiff for presentation of the same to the competent court. 16. The appeal is thus, disposed of. Re: FMAT 1035 of 2012 17. Let us now consider the merit of the other appeal being FMAT 1035 of 2012 filed by the defendants/appellants. In the said appeal that part of the impugned order being No.7 dated 3rd August, 2012 by which the ad interim order of injunction passed in the suit was extended till the date of presentation of the plaint before the competent court, was challenged. 18. Mr. In the said appeal that part of the impugned order being No.7 dated 3rd August, 2012 by which the ad interim order of injunction passed in the suit was extended till the date of presentation of the plaint before the competent court, was challenged. 18. Mr. Chatterjee, learned advocate appearing for the appellants challenges the legality of that part of the impugned order, by drawing our attention to the reliefs claimed by the plaintiff in the suit. He pointed out that the plaintiff has prayed for a declaration for recognising his right of pre-emption under Section 22 of the Hindu Succession Act in respect of the transactions made between the defendant no. 1 on the one side and the defendant nos. 2, 3 and 4 on the other side respectively. He submits that the plaintiff has not prayed for any relief for allowing him to exercise the right of pre-emption in respect of those transactions as per Section 22 of the Hindu Succession Act. 19. In the absence of such relief being claimed by the plaintiff, the suit, according to Mr. Chatterjee, is barred under the provision of Section 34 of the Specific Relief Act. He thus contends that if the suit is apparently not maintainable on the basis of the pleadings made out in the plaint and the reliefs claimed therein, no interim order can be passed in such an application. As a matter of fact, interim order is passed in aid of the final relief claimed by the plaintiff in the suit. If the final relief cannot be granted, then of course, interim relief cannot be granted in such a suit. This proposition of law was laid down by a Learned Single Judge of this Court in a reference made in the case of British Airways PLC v. Barunendra Nath Basu [reported in 2002 (2) CHN 123 ] to His Lordship due to difference of opinion between two Learned Judges of this Court in the Division Bench. 20. For considering the substance of this part of the submission of Mr. Chatterjee, we have perused the pleadings made out in the plaint and the reliefs claimed by the plaintiff therein. We find that this is a suit for declaration and injunction simplicitor. The relief for exercising right of pre-emption under Section 22 of the Hindu Succession Act has not been claimed by the plaintiff in the said suit. Chatterjee, we have perused the pleadings made out in the plaint and the reliefs claimed by the plaintiff therein. We find that this is a suit for declaration and injunction simplicitor. The relief for exercising right of pre-emption under Section 22 of the Hindu Succession Act has not been claimed by the plaintiff in the said suit. Unless such relief is claimed in the suit, the relief which the plaintiff has claimed in the suit, cannot be given in such a suit which is barred under Section 34 of the Specific Relief Act. 21. That apart, we find that neither in the initial order of injunction which was passed by the Learned Trial Judge nor in the impugned order by which the order was extended, the Learned Trial Judge discussed anything about the existence of a prima facie case of the plaintiff and/or the balance of convenience and inconvenience of the parties and the irreparable loss which the plaintiff is likely to suffer, in case such injunction is not granted. Even ad-interim order of injunction cannot be passed without satisfying all the three tests as mentioned above. While passing the ad-interim order of injunction, the Court is required to record its satisfaction about the fulfilment of those three conditions warranting grant of injunction. This has not been followed by the Learned Trial Judge while passing the ad-interim order of injunction and/or while extending the same by the impugned order. 22. Accordingly, we hold that this part of the impugned order cannot be retained. Thus, that part of the impugned order by which the ad interim order of injunction was extended for a limited period is set aside. 23. The appeal is thus, allowed. 24. Before parting with, we make it clear that since the legality of the order which was passed by the Learned Trial Judge on the other application under Order 7 Rule 11 of the Code of Civil Procedure filed by the other set of defendant, is not challenged in any of these appeals, we have not considered the legality of that part of the impugned order while disposing of these two appeals. 25. 25. Both the appeals are disposed of with this rider that the findings which we have arrived at on the maintainability of the suit because of the bar of Section 34 of the Specific Relief Act, are our tentative findings which we have arrived at only for the purpose of disposal of the injunction proceeding at the ad-interim stage. 26. As such, it is made clear that in the event such an objection is raised by the defendants at the trial of the suit on at the hearing of the plaintiff’s application for temporary injunction, the learned Trial Judge will be absolutely free to decide the said objection in its own wisdom without being influenced by any of the observations made by this Court hereinabove. 27. We request the Learned Trial Judge to dispose of the plaintiff’s application for temporary injunction as expeditiously as possible on its own merit without being influenced by any of the observation made in this appeal filed by the defendants. 28. We are informed by Mr. Dutta that a sum of Rs. 11,50,000/- was deposited by his client with the Learned Registrar General of this Court in terms of the order passed by this Court earlier as a condition for grant of injunction by this Court. 29. Having regard to the fact that the appeal has been disposed of and the injunction order which was passed by this Court is not maintained by this Court, we permit the plaintiff/appellant in FMAT 1074 of 2012 to withdraw such deposited amount together with interest accumulated thereon, within two weeks from the date of compliance of the necessary formalities by the plaintiff/appellant in this regard. The Learned Registrar General of this Court is directed to act accordingly. 30. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocate for the appellant immediately.