Judgment:
F.I. Rebello, J.
1. The Applicant has approached this Court against the Order dated 25th August, 1995 passed in Bombay City Civil Court S.C. Suit No. 3410 of 1995. By the said order the trial Court disposed of the issue framed in para 5 of the order. It was a composite issue consisting of two issues viz.
(1) Whether the Court had no pecuniary jurisdiction?
(2) Whether by virtue of Sections 71 and 177 of the Maharashtra Housing and Area Development Act the jurisdiction of the Court was barred.?
The trial Court rejected both the issues and held that the Court has jurisdiction.
2. In so far as the ouster of jurisdiction by virtue of Sections 71 and 177 of Maharashtra Housing and Area Development Act is concerned, the reliefs herein prayed are by the Applicant against the Respondent No. 1. Admittedly, the Respondent No. 1 was allotted the premises by Respondent No. 2. The suit filed by the Plaintiff is for declaration that the agreement arrived at between him and the Applicant is null and void and for various injunction. In such a suit. Respondent No. 2 is not a necessary party. In fact no relief is available against respondent No. 2 to question the ouster of jurisdiction of Civil Court. The Civil Court has jurisdiction under Section 9 of the Code of Civil Procedure to decide and dispose of all suits of a civil nature except those which are expressly barred by any other law. In the present case the relief claimed by the Applicant and the Respondent is for possession in respect of which remedy is provided for under the Act and consequently it cannot be said that the Civil Court has no jurisdiction to hear and decide the subject matter of the suit. The trial Court was therefore right in so far as holding that the suit is not barred on that count.
3. Coming to the second issue of pecuniary jurisdiction, the question has been decided by the trial Court by holding that the suit falls within the meaning of Section 6(iv)(d) of the Bombay Court Fees Act, 1959 and accordingly the City Civil Court has jurisdiction. The jurisdiction of City Civil Court is limited to the extent of the suit of the value of Rs. 50,000/-. In the present case, the Court has gone by the fact that the prayers in the Plaint are merely for declaration and permanent injunction. If the prayers are carefully considered it may be seen that in fact what the Respondent is claiming against the Applicant is recovery of possession. It is the case of Respondent No. 1 that the agreement by virtue of which he entered into an Agreement to Assign/Transfer his right in the suit shop is null and void. Admittedly, the Applicant is in possession of both the shops. The suit therefore would not be a suit falling within the meaning of Section 6(iv)(j) of the Bombay Court Fees Act, 1959. Only reason why the Court has dismissed the issue of pecuniary jurisdiction is that the suit is for declaration and injunction 'and the subject matter of the suit is not susceptible of monetary evaluation. The finding of the court has therefore to be set aside.
4. There is no material before the Court today to find out as to exactly what is the value of the suit in terms of pecuniary jurisdiction. The jurisdiction as of today is based on relief of declaration and injunction. Once the Respondent No. 1 files a suit against the Applicant on the ground that the agreement arrived between him and the Applicant is null and void and Plaintiff is not in possession then the suit has to fall under some other entry other than 6(iv)(j). If recovery of possession is sought whether styled as mandatory injunction or otherwise then also the valuation has to be done and court fees have to be paid on such valuation. The trial Court has not addressed itself on this aspect of the matter. The matter is therefore remanded to the trial Court for a consideration afresh. The trial Court to decide whether the suit has been properly valued or not and if not properly valued then to direct the Respondent No. 1 to value the suit properly for the purpose of suit valuation and then pay requisite Court fees in terms of the provisions of the Suit Valuation Act and the Court Fees Act respectively.
5. With the above directions, the order of the trial Court to the extent of finding on issue of pecuniary jurisdiction is set aside. Finding so far as ouster of jurisdiction by virtue of Sections 71 and 177 of the Maharashtra Housing and Area Development Act is confirmed. The matter is remanded to the trial Court for decision in the light of the observations passed hereinabove.
6. Civil Revision Application is disposed of accordingly. Rule partly made absolute in terms aforesaid. In the circumstances of the case, there shall be no order as to costs.