BADAL M. MITTAL & ANR. Vs. OMPRAKASH M. MITTAL & ORS.
LAWS(BOM)-2017-7-215
HIGH COURT OF BOMBAY
Decided on July 07,2017

Badal M. Mittal And Anr. Appellant
VERSUS
Omprakash M. Mittal And Ors. Respondents

JUDGEMENT

S.C.GUPTE, J. - (1.) This suit is filed by the Plaintiffs, who are brothers, against Defendant No.1, who is their other brother, and Defendant Nos. 2 and 3, who are respectively their sister-in-law and nephew. The subject matter of the suit is a flat, being Flat No.10A on the 8th Floor of a building known as "Mittal Bhawan-I" at Pedar Road in Mumbai. It is the Plaintiffs' case that late Maliramji Mittal, father of the Plaintiffs and Defendant No.1, and his sg 2/10 nms855-17.doc family were occupying this flat originally. The share certificate in respect of the flat stood in the name of late Maliramji Mittal. It is the Plaintiffs' case that their brother - Defendant No.1 shifted to Bangalore permanently in 1982. After the death of Maliramji in the year 1996, the suit flat was transferred in the name of his wife, late Smt. Sitadevi Mittal, mother of the Plaintiffs and Defendant No.1. She resided in the flat till her death in December 2016. It is the Plaintiffs' case that, during her life time, Sitadevi executed a registered gift deed dated 19 October 2015 gifting and transferring the suit flat in their favour. It is the Plaintiffs' case that since the execution of the gift deed, the Plaintiffs have had complete and unobstructed possession and ownership of the suit flat. The share certificate in respect of the flat stands in their name. The Plaintiffs submit that Defendant No.1 used to occasionally visit the suit flat, both during the life time of Maliramji and thereafter, during the life time of Smt. Sitadevi. Whenever he came to the suit flat during this period, he was allowed to make use of two rooms in the flat. It is the grievance of the Plaintiffs that on 4 February 2017, the Defendants visited Mumbai and stayed in these two rooms as guests after taking keys to the suit flat from the Plaintiffs. A few days later, on 7 February 2017, the Plaintiffs found the suit flat locked, the original lock having been replaced by the Defendants and a new lock installed in its place. The keys to this new lock were not provided to the Plaintiffs. In the premises, the Plaintiffs have filed the present suit under Section 6 of the Specific Relief Act, claiming dispossession otherwise than by due process of law and seeking to recover possession of the suit flat.
(2.) The Notice of Motion taken out by the Plaintiffs claims a mandatory order and direction against the Defendants to put the Plaintiffs sg 3/10 nms855-17.doc in possession of the suit flat. The Defendants contest the Notice of Motion. The Defendants have also taken out a Chamber Summons, being Chamber Summons (L) No.645 of 2017, purportedly under Order 7 Rule 10 of the Code of Civil Procedure for return of plaint on the ground that this Court does not have jurisdiction to entertain and try the present suit. Chamber Summons (L) No.645 of 2017:
(3.) This application is on the footing that the present suit, having been filed under Section 6 of the Specific Relief Act and, accordingly, not being on title, is a suit seeking to enforce a statutory right and that the suit, accordingly, should be valued under Section 6(iv)(j) of the Bombay Court Fees Act, which is an entry providing for suits for declarations, whether with or without injunction or other consequential reliefs, where the subject-matter in dispute is not susceptible for monetary evaluation, and which are not otherwise provided for by the Act. According to this entry, ad valorem fee is payable as if the amount or value of the subject-matter was three hundred rupees. Based on this, it is submitted that considering the requirement of the suit having to be filed in the lowest court having pecuniary jurisdiction over the subject matter, this Court has no jurisdiction to entertain the present suit.;


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