Shahaja Begum Mohammad Ali ... vs Mohammad Shaukat Mohammad Sharif
2007 Latest Caselaw 206 Bom

JUDGMENT

S.B. Deshmukh, J.

Page 0674

1. Heard learned Counsel for the respective parties.

2. Rule. By consent, Rule is made returnable forthwith and the petition is taken up for final hearing.

3. This petition is directed against the order passed by the learned Civil Judge (S.D.) Aurangabad dated 15.9.2006 below application Exhibit 15 in Special Civil Suit No. 245 of 2006 (suit).

4. Present petitioner is the original plaintiff. Suit was filed on 26.7.2006 for partition and separate possession of the plaintiffs half share in the suit property and for injunction regarding alienation and creation of third party interest in the suit property till disposal of the suit. On the date of filing of the Page 0675 suit, it appears, that an exemption under Bombay Court Fees Act, 1959 (Act of 1959) under Section 46 and Notification dated 1.10.1994 and explanation added by Notification dated 23.3.2000 was sought by the petitioner. The petitioner has alleged in the said application that she is real sister of deceased Noorjahan Begum w/o Mohd. Shawkat, who died in the accident on 26.10.2001 and that as per the Mohammedan Law, husband of deceased Noorjahan (defendant) will share the suit property along with plaintiff as a heir of deceased to the extent of half share each. The plaintiff being a pardanashin Mohammedan lady she is exempted from paying the court fees stamp as per the provisions of the Bombay Court Fees Act (36 of 1959). The plaintiff, therefore, sought permission to file the suit on a token court fees of Rs.10/- by exempting her from the payment of court fees on valuation of Rs.20,25,000/-.

5. Learned Civil Judge heard this application and passed an order on 26.7.2006 granting application, in view of Government Notification of 1994. Thereafter, the suit was registered and processed in due course.

6. The defendant, in response to suit summons, appeared in the suit and filed an application under Order VII Rule 11 of Civil Procedure Code (CPC) and prayed to reject the plaint. After hearing respective parties, this application was allowed by the learned Civil Judge on 15.9.2006 and the plaintiff was directed to pay requisite court fee as per the valuation of Rs.20,25,000/-as mentioned in the plaint, on or before 17.10.2006. It is further clarified that on failure of the plaintiff to do so, the plaint be rejected.

7. With the assistance of learned Counsel for the respective parties, I have gone through the provisions of Order VII Rule 11 (b) and (c) of CPC, which are reproduced herein below:

11.Rejection of plaint.-The plaint shall be rejected in the following cases:

(a) ...

(b) where the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) ...

(e) ...

(f) ...

8. I have also gone through the order passed by the trial Court below Exhibit 15. Provision of Order VII Rule 11(b) of CPC is not applicable to the facts of the present case for the simple reason that the case of under valuation of the relief at the first instance is considered with direction or order by the Court for correction in the valuation within the time fixed by the Court and failure of following this order ensues the rejection of the plaint. Under Sub-rule (b) of Rule 11 of Order VII contingency regarding proper valuation is being Page 0676 considered. However, if the plaint is written upon insufficiently stamped paper and if the Court directs to supply the requisitie stamp paper within a specified time and if plaintiff fails to do so, plaint can be rejected under this Sub-rule (c) or Rule 11 of Order VII of CPC. In the present case, there is no grievance raised by the defendant in regard to valuation of the property made by the plaintiff to the tune of Rs.20,25,000/-or insufficiency of stamp towards court fees.

Under Sub-rule (c) of Rule 11 of Order VII, a contingency is considered when the property i.e. subject matter of the suit is properly valued but written upon a paper insufficiently stamped and the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court and despite this fact there is failure on the part of the plaintiff, the plaint shall end in rejection thereof. Present case also cannot be said to be governed by Clause (c).

Thus, in my view, here is the case in respect of entitlement of the plaintiff to seek an exemption for payment of court fees within four corners of notification issued under Section 46 of the Act of 1959. Here, the Court has considered this aspect and passed the order on 26.7.2006. This order seems to be not a subject matter of review and/or seems to not have been challenged by filing an appropriate proceeding. Under Order VII Rule 11 (b) (c) CPC, an application is filed by defendant before filing the written statement in the suit. Such application, in fact, was not competent in the trial Court. The Court below should not have accepted and considered this application on merits. In this fact situation, in my view, so long earlier order passed by the learned trial Judge dated 26.7.2006 exempting the court fees is not quashed and set aside, there was no occasion for the trial Court to allow this application under Order VII Rule 11 (b) or (c) of CPC. On this ground, this writ petition needs to be allowed by quashing and setting aside the order of Court below. It is however, made clear that so far respondent is concerned, he is at liberty to take appropriate steps in accordance with the provisions of law regarding the grievance i.e. grant of exemption by the trial Court by an order dated 26.7.2006.

9. In the result, the writ petition is partly allowed. Order passed by the Civil Judge (S.D.), Aurangabad dated 15.9.2006 below Exhibit 15 in Special Civil Suit No. 245 of 2006 is quashed and set aside, with liberty to the defendant to seek an appropriate remedy in accordance with the provisions of law, if he wish to do so.

10. Rule is accordingly made partly absolute, with no order as to costs.