Allowed

Smt. Rakhamabai Maruti Waghmare and Ors. v. Shri. Baalkrishna Pandurang Dhore and Ors.

Bombay HC26 Sept 2019WP/10718/2014

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an order under Order VII Rule 11 CPC and Maharashtra Court Fees Act. The bench found the lower court's order lacked reasons and failed to apply the law to facts appropriately. The Supreme Judgement remitted the matter to the lower court.

What did the court decide?

The impugned order is quashed; the application preferred by Defendant No.8 to be decided afresh after hearing parties.

Smt. Rakhamabai Maruti Waghmare and Ors. Vs Shri. Baalkrishna… — Partition | Bombay HC (2019)

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SAS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.10718 OF 2014

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Smt. Rakhmabai Maruti Waghmare & Ors. ..Petitioners. V/s. Balkrishna Pandurang Dhore ..Respondent.

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..Respondent.

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Mr.Vilas Babanrao Tapkir for the petitioner.

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Ms.Yogita Kuveskar i/b. P.G.Sarda for respondent Nos.1 & 2. Mr.Deepak R.More for respondent No.8.

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CORAM : N.J. JAMADAR, J.

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DATE : SEPTEMBER 26, 2019

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P.C. :-

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Heard learned counsel for the parties.

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Challenge in this petition is to the order dated

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August 7, 2014 on an application (Exhibit-54) in Regular Civil Suit No.119/2008, under Order VII Rule 11 of the Code of civil Procedure (‘the Code’) passed by the second joint Civil Judge, Vadgaon, Maval, whereby the learned Civil Judge was persuaded to allow the application preferred by defendant No.8 and directed the petitioners-plaintifs to pay Court fees on Rs.2,14,31,250/- i.e. half of ad-valorem fee leviable as per

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section 6(iv)(ha) of the Maharashtra Court Fees Act, 1959 before September 17, 2014 and in the event of failure to deposit the requisite court fee, the plaint shall be deemed to have been rejected.

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The petitioners-plaintifs have instituted the suit being Regular Civil Suit No.119/2008, seeking relief of declaration that the deed of partition executed and registered on March 28, 2002, having been allegedly obtained by practicing fraud and after exercising undue infuence, is void; the plaintifs and defendant Nos.1 to 7 have undivided interest in the suit lands and that the development agreement executed by defendant Nos.3 to 5 in favour of defendant No.8 in respect of the suit properties, is not binding on the share of the plaintifs. The plaintifs valued the suit claim as a suit for partition, declaration and injunction.

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Defendant No.8, fled an application contending that the suit claim was not properly valued and in accordance with the provisions contained in section 6(iv)(ha) of the Maharashtra Court Fees Act, 1959, the plaintifs were required to pay the Court fees of half of the ad-valorem fee leviable on the value of the property i.e. Rs.2,14,31,250/-. The learned civil Judge by the impugned order allowed the application and

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directed the petitioners-plaintifs to correct the valuation and to pay the requisite defcit Court fee. Hence the petition.

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From the perusal of the impugned order, it becomes evident that though the learned Civil Judge has copiously extracted the judgments relied upon by the respective parties in support of rival contentions, yet the learned Judge has not made any endeavour to record as to how those judgments govern or do not govern the facts of the case. Upon a bare perusal of the impugned order, an inference is inevitable that the learned Civil Judge has not properly appreciated the question of applicability of the particular provisions of the Court Fees Act to the facts of the present case. Though the impugned order runs into several pages, it essentially lacks reasons.

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Learned counsels for the parties do not dispute this

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position.

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In the aforesaid view of the matter, without delving into the merits of the matter, it would be expedient and in the interest of justice to remit the matter to the learned second Joint Civil Judge, Junior Division, Vadgaon Maval to decide the application (Exhibit-54) preferred by Defendant No.8 afresh, in accordance with law, after providing an opportunity of hearing

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to all the parties.

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Hence the following order :-

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(i) The petition is allowed;

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(ii) The impugned order dated August 7, 2014 below application (Exhibit-54) in Regular Civil Suit No.119/2008 passed by the Second Joint Civil Judge, Vadgaon Maval, is quashed and set aside and the learned Civil Judge is directed to decide the application (Exhibit-54), preferred by defendant No.8 afresh, in accordance with law after providing opportunity of hearing to all the parties;

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(iii) The learned Civil Judge shall make an endeavour to decide the application as expeditiously as possible and preferably within a period of 8 weeks from the date of communication of this order.

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All concerned to act on an authenticated copy of

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this order.

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( N.J. JAMADAR, J. )

Smt. Rakhamabai Maruti Waghmare and Ors. v. Shri. Baalkrishna Pandurang Dhore and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Rakhamabai Maruti Waghmare and Ors. v. Shri. Baalkrishna Pandurang Dhore and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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