Allowed

Yashwant Balu Patil v. Housabai Krushna Patil and Ors.

Bombay HC21 Feb 2023WP/4211/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging Trial Court orders on court fee assessment. It held that a non-signatory plaintiff seeking cancellation of a sale deed need only pay fee on their share under Section 6(iv)(j). Impugned orders directing full valuation fee were quashed.

What did the court decide?

All three impugned orders dated 28.02.2019, 23.03.2021, and 17.01.2022 quashed; directions for rejection of plaint on non-compliance set aside; Writ Petition allowed.

Yashwant Balu Patil Vs Housabai Krushna Patil and Ors. — Property and Title | Bombay HC (2023)

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23.WP.4211.22.doc

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S.S.Kilaje

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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. 4211 OF 2022

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Yashwant Balu Patil .. Petitioner
 Versus
Housabai Krushna Patil and Ors...Respondents

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Ms. Pallavi Karanjkar i/by Mr. Sandeep Koregave for Petitioner

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None for Respondents

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CORAM:MILIND N. JADHAV, J.
DATE:FEBRUARY 21, 2023.

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P.C.:

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1. Heard Ms. Karanjkar, learned Advocate for Petitioner.

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2. On 07.02.2023, this Court passed the following order:

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“1. Heard Mr. Koregave, learned Advocate for the Petitioner.

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2. Mr. Koregave would submit that inadvertently the challenge
to the order dated 28.02.2019 has not been adverted to in the
prayer clause of the Writ Petition. He would submit that as a
consequence thereof the impugned orders dated 17.01.2022
and 23.03.2021 came to be passed. Petitioner is the Plaintiff.
He therefore seeks to carry out the necessary amendment to
challenge the impugned order dated 28.02.2019 also. Leave to
amend is granted. Amendment is permitted to be carried out
forthwith. Copy of the amended Petition be served upon
Respondents.

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3. The controversy in the present Writ Petition is very narrow
in as much as the Petitioner is not a signatory to the subject
document of which declaration is sought for setting it aside.
Hence, according to him Petitioner’s case is governed by
Section 6(iv)(j) of the Bombay Court Fees Act, 1959.

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4. By virtue of the impugned order dated 28.02.2019, the said contention of the Petitioner has been rejected by the learned Trial Court.

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5. An arguable case has been made out by Mr. Koregave.

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23.WP.4211.22.doc

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6. Issue notice to Respondents. Humdast permitted.

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7. In addition to service of notice through Court, Petitioner
shall serve a copy of the Petition on Respondents and inform
them about the next date of hearing by any permissible mode
of service and file affidavit of service with tangible proof
thereof before the returnable date.

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8. Respondents are directed to file their Reply after the service of the amended Writ Petition.

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9. In the meanwhile, ad-interim relief is granted in terms of
prayer clause (c).

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10. It is clarified that if Respondents do not appear on the
adjourned date this Court shall pass appropriate order and
dispose of the Writ Petition in accordance with law.

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11. List the Writ Petition on 21st February, 2023. To be placed
High on Board.”

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3.Record indicates that contesting Respondent Nos. 1 to 8 and
20 are duly served. None appears for Respondents. This matter
cannot be protracted any further in their absence.

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4.By the present Writ Petition, exception is taken to the
common order dated 28.02.2019 passed below Exhibits 35, 36 and 42.
These Applications were filed by Respondent Nos.1 to 8 and 20 under
Section 9A, Order VII Rule 11 of the Civil Procedure Code, 1908 (for
short “CPC”) read with Section 6 (iv) (ha) of the Bombay Court Fees
Act, 1959 seeking rejection of the plaint, contending that the Trial
Court did not have pecuniary jurisdiction to try the suit, as valuation
of the suit property was in excess of its pecuniary jurisdiction.
Petitioner - Plaintiff filed his reply below Exhibit 37 to oppose the
Applications. Writ Petition takes further exception to the order dated

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23.WP.4211.22.doc

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23.02.2021 passed below Exhibit 88. This Application below Exhibit
88 is filed by Respondent Nos.1 to 8 and 20 seeking rejection of plaint
on the ground of non-compliance of the above order dated
28.02.2019. Petitioner – Plaintiff resisted the Application, inter alia,
contending that he has complied with the above order and corrected
the valuation of the suit plaint and deposited Court fee of Rs.26,215/-
as directed by the learned Trial Court which was in respect of the
Plaintiff’s claim / share in the suit property. Admittedly, Plaintiff has
claimed 1/8th share in the suit property as belonging to him. By order
dated 23.03.2021, the learned Trial Court allowed the Application
filed by Respondent Nos.1 to 8 and 20 below Exhibit 88 and directed
Petitioner – Plaintiff to comply with the order dated 28.02.2019.

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5.Petitioner – Plaintiff being aggrieved, filed review
Application under Section 47 of the CPC below Exhibit 111 seeking
review of the order dated 23.03.2021. Respondents resisted the said
Application by filing their reply. Learned Trial Court rejected the
review Application filed by Petitioner – Plaintiff vide order dated
17.01.2022.

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6.Thus, challenge in the present Writ Petition is to the three
orders, viz; orders dated 28.02.2019, 23.03.2021 and 17.01.2022.

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7.Controversy is with respect to payment of Court fee by
Plaintiff. Record shows that Plaintiff has paid proportionate Court fee
to the extent of his share, i.e. 1/8th share.

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23.WP.4211.22.doc

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8.The learned Trial Court has however held that though
Plaintiff is entitled to 1/8th share, considering the challenge in the suit
plaint which is for cancellation of the sale deed, for the purpose of
paying ad-valorem Court fee, Plaintiff’s share cannot be restricted to
1/8th only and he needs to pay Court fee for the entire valuation of the
suit property. The aforesaid finding is returned by the learned Trial
Court in paragraph Nos. 9 and 10 of the impugned order. However, it
is seen that the said finding is contrary to settled principles of law.

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9.Record clearly reveals that Petitioner - Plaintiff herein has
sought cancellation of the sale deed to which the Plaintiff (Petitioner)
is not a party nor a signatory. This is the most uncial fact.

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10.In that view of the matter, for the purpose of payment of ad-
valorem Court fee, provisions of Section 6(4)(j) would clearly apply as
contended by Petitioner. That apart, record clearly shows that the
Court fee has now been paid by the Petitioner – Plaintiff and the same
is in excess of the Court fee that is required to be paid by him under
the provisions of Section 6(4)(j).

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11.Ms. Karanjkar has placed reliance on the following two
decisions of this Court:-

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(i) Sushant Bapusaheb Nimbalkar & Anr. Vs. Prashant Bapusaheb Nimbalkar in C.R.A. No. 230 of 2022 passed on 09.12.2022 ; and

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23.WP.4211.22.doc

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(ii) Shri Ganpat @ Ganpati Laxman Devne Vs. Smt. Kasturibai Shankar Devne & Ors. in Civil Writ Petition

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(S) No.8924 of 2021 passed on 30.08.2021.

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11.1. The facts of the present case are squarely covered by the aforesaid two decisions. It is seen that the Petitioner is a non executant of the sale deed of which cancellation is sought. In that view of the matter, Petitioner would be entitled to pay Court fee under the provision of Section 6(iv)(j) and not 6(iv)(h) or any other provision. In that view of the matter the impugned orders, inter alia, directing the Petitioner to pay Court fee as per ad-valorem value of the entire property cannot be sustained.

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12. In view of the above, all three impugned orders are not sustainable and to that extent stand quashed and set aside.

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13. It is clarified that the directions for rejection of the plaint on

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account of non compliance of the impugned order passed below
Exhs.35, 36 and 42 under Order VI Rule 11(b) of CPC stand set aside.

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14. Writ Petition is allowed in terms of prayer clause (b).

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15. Writ Petition is disposed.

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[ MILIND N. JADHAV, J. ]

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SONALI Digitally signedby SONALI SATISH SATISH KILAJEDate: 2023.03.24 KILAJE 19:14:15 +0530

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Yashwant Balu Patil v. Housabai Krushna Patil and Ors.

Case brief

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Yashwant Balu Patil v. Housabai Krushna Patil and Ors.

Case brief

What is this about?

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