Smt. Sushila Uttamchand Jain vs Rajesh Kumar Prakashchand Jain

D.G. Karnik, J.—This revision application is directed against the order dated 25th October, 2010 deciding the preliminary issue of jurisdiction against the original plaintiff (defendant in the counter-claim). The revision applicant (for short "the applicant") is the original plaintiff and the respondent is the original defendant. The applicant filed a suit in the Court of Civil Judge, Junior Division at Bhiwandi for an injunction simpliciter restraining the respondent from taking forcible possession and/or dispossessing the applicant from flat No. 13 situated on the 3rd floor in house No. 365, Mahavir Sadan, Gokul Nagar, Bhiwandi, Thane (for short "the suit flat").

The case of the applicant is that she was the owner of the suit flat and had agreed to sell the same to the respondent for a sum of Rs. 3,00,000/-. According to her, the respondent did not pay the agreed consideration. The applicant had not handed over the possession of the suit flat to the respondent but the respondent threatened to take possession by force and, therefore, the applicant had filed the suit for injunction. The respondent filed the written statement contesting the suit and contended that he had paid the full consideration and the applicant had put the respondent in possession of the suit flat as an owner. The name of the respondent was also registered as a consumer with the Electricity Board and he was paying the electricity charges. However, on 11th March, 2010, the applicant by concealing material facts from the trial Court obtained an ex parte order of status quo, broke open the lock of the respondent and illegally and forcibly dispossessed the respondent. The respondent, therefore, by his written statement made a counter-claim for restoration of possession. The applicant filed the written statement to the counterclaim made by the respondent denying the allegations made in the counter-claim. He further contended that since the value of the flat was beyond the limit of pecuniary jurisdiction of the Civil Judge, Junior Division, the Court of Civil Judge, Junior Division had no jurisdiction to entertain the counter-claim. Accordingly the trial Court framed a preliminary issue as to its jurisdiction but held that it had the jurisdiction to entertain the counterclaim.

Learned counsel for the applicant invited my attention to the averments made in the written statement contained in the counter-claim and in particular para 2(y) thereof and submitted that the respondent himself has stated that the flat was valued at Rs. 3,00,000/- and, therefore, the Court of Civil Judge, Junior Division had no jurisdiction to try a suit or a counter-claim for restoration of possession. In support of his submission, he invited my attention to the provisions of Order 8, Rule 6A of the CPC (for short "the Code") and in particular proviso to sub-rule (1) thereof. Order 8, Rule 6A of the Code provides that a defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against me plaintiff either before or after the filing of the suit but before the defendant has delivered his defence. Proviso to sub-rule (1) of Rule 6A, however, says that the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Counsel for the applicant submitted that the pecuniary jurisdiction of the Civil Judge, Junior Division is Rs. 1,00,000/-. Value of the suit flat admittedly is not less than Rs. 3,00,000/- and consequently the suit for possession of the suit flat was beyond its pecuniary jurisdiction as the suit for possession was required to be valued at the market value of the flat u/s 6(v) of the Bombay Court-fees Act.

At the outset, it may be stated that the respondent has claimed possession of the suit flat not on the basis of a title but on the basis of prior possession by filing the counterclaim u/s 6 of the Specific Relief Act. The respondent had agreed to purchase the suit flat and in pursuance thereof was put in possession. The agreement was pleaded for the purpose of showing the origin of possession and/or for showing that the respondent was in possession of the suit flat within 6 months before the filing of the counterclaim. The counter-claim is not based on the agreement of sale but on Section 6 of the Specific Relief Act and is based solely on prior possession within 6 months before the counter-claim. In other words, the counterclaim is for enforcement of the statutory right u/s 6 of the Specific Relief Act.

In somewhat different circumstances, this Court has considered how the suit for possession to enforce a statutory right is required to be valued in the case of Vrindavan (Borivali) Co-operative Housing Society Limited Vs. Karmarkar Brothers and Others, and in the case of Maria Philomina Pereira Vs. M/s. Rodrigues Construction, . In the case of Maria Philomina Pereira (supra), the appellant before the High Court had filed a suit in the Bombay City Civil Court for specific performance of an agreement for sale dated 21st February, 1983 executed by the respondent-builder/promoter. The respondent-builder contended that the value of the flat was Rs. 87,000/- which was more than the pecuniary limit of jurisdiction of the City Civil Court which was Rs. 50,000/-. It was contended that since the suit was for specific performance and possession of the flat, it was required to be valued on the market value of the flat u/s 6(xi) of the Bombay Court-fees Act. The Court held what the appellant was trying to enforce was a statutory right conferred on her under the provisions of the Maharashtra Ownership Flats Act, 1963 and, therefore, the suit was not required to be valued for specific performance u/s 6(xi) of the Bombay Court-fees Act but would fall u/s 6(iv)(j). In the present case also, what the respondent is claiming is that he has been unlawfully dispossessed and wants to enforce his statutory right conferred upon him by Section 6 of the Specific Relief Act. Since the respondent is claiming to enforce his statutory right u/s 6 of the Specific Relief Act, following the decisions of this Court in Maria Philomina Pereira Vs. M/s. Rodrigues Construction, and Vrindavan (Borivali) Co-operative Housing Society Limited Vs. Karmarkar Brothers and Others, , it must be held that the counter-claim which is like a plaint in a suit would not be required to be valued u/s 6(v) of the Bombay Court-fees Act. Consequently, the counter-claim would be within the pecuniary limit of jurisdiction of the Civil Judge, Junior Division. The trial Court committed no error in holding that it had jurisdiction to entertain and try the counter-claim. The revision application is rejected summarily. After this order was pronounced in the open Court, learned counsel for the applicant prays for continuation of the ad-interim order previously granted on 25th January 2011 for some time to enable him to take appropriate recourse against this decision. Accordingly it is directed that the ad-interim order shall remain in force for a period of 4 weeks from today.