Bombay High Court
Mir Azghar Ali Khalid Nasiri Mir ... vs Mir Nasir Ali Mujahid Nasiri And ... on 23 December, 2016
Bench: T.V. Nalawade
Writ Petition No.9639/2014
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO.9639 OF 2014
1) Mir. Azghar Ali Khalid Nasiri s/o
Mir Akbar Ali Nasri
Age 60 years, Occ. Business
R/o House No.20-1-330,
Kokabazar, Hyderabad, A.P.
2)
Mir Ather Ali Farooq Nasiri s/o
Mir Akbar Ali Nasri,
Age 58 years, Occ. Business
R/o House No.20-1-330,
Kokabazar, Hyderabad, A.P.
3) Mir Amjad Ali Zubair Nasiri s/o
Mir Akbar Ali Nasri,
Age 52 years, Occ. Business
R/o House No.20-1-330,
Kokabazar, Hyderabad, A.P.
4) Mir Dawere Ali Tariq Nasiri s/o
Mir Akbar Ali Nasri,
Age 49 years, Occ. Business
R/o House No.20-1-330,
Kokabazar, Hyderabad, A.P.
5) Mir Azam Ali Nasiri s/o
Mir Akbar Ali Nasri,
Age 40 years, Occ. Business
R/o House No.20-1-330,
Kokabazar, Hyderabad, A.P.
6) Amatul Yusuf Hafsa Nasiri s/o
Mir Akbar Ali Nasri,
Age 34 years, Occ. Business
R/o House No.20-1-330, ... PETITIONERS
Kokabazar, Hyderabad, A.P. (Orig. Plaintiffs)
VERSUS
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Writ Petition No.9639/2014
2
1) Mir Nasir Ali Mujahid Nasiri,
Age 62 years, Occ. Business
R/o House No.20-1-330,
Kokabazar, Hyderabad, A.P.
2) Amatul Buturool Siddiqua Nasiri
d/o late Mir Akbar Ali Nasiri,
Age 38 years, Occ. Business
R/o House No.20-1-330,
Kokabazar, Hyderabad, A.P.
3) Mohan s/o Kashinathrao Kale,
Age 51 years, Occ. Agriculture
& Business, R/o Dhanshree,
Dhanora Road, Beed. ... RESPONDENTS
ig (Orig. Defendants)
.....
Shri A.D. Kasliwal, Advocate for petitioners
Shrei J.N. Singh, Advocate for respondent No.3
.....
CORAM: T.V. NALAWADE, J.
DATED: 23rd December, 2016.
ORAL JUDGMENT :
1. Rule. Rule returnable forthwith. Heard both sides by
consent for final disposal.
2. The petition is filed by original plaintiffs of Special
Suit No.48/2013, which is pending in the Court of Civil Judge,
Senior Division, Aurangabad. The order made on Exhibit 36 is
challenged by the plaintiffs. By this order, the trial Court has
directed the two plaintiffs to pay separately court fee on share
Writ Petition No.9639/2014
claimed by each plaintiff in a suit filed by them for relief of
partition and separate possession of their respective shares.
3. There is specific order that the court fee should be
paid on market value i.e. total amount of Rs.7,46,84,269/-.
4. The learned counsel for respondents submitted that,
in view of the provisions of Section 6(vii) of the Bombay Court
Fees Act, in a suit for partition, the plaintiffs should pay court fee
on the basis of value of their respective shares. The counsel for
other side took this Court through Schedule I of Article 1 proviso.
The provision runs as under :
"Provided that, maximum fees payable on
the plaint or memorandum of appeal or
cross-objection shall be three lakhs rupees."
She submitted that, even if it is presumed that the
market value of the property is as mentioned above, the
maximum court fees which will be payable by the plaintiffs on the
plaint will be Rs.3 Lakhs and that court fees is already paid and
so, the plaintiffs cannot be made to pay anything more than Rs.3
Lakhs. This Court holds that, there is substance in this
contention in view of the wording of the aforesaid proviso. The
suit needs to be valued for the purpose of court fee and court fee
Writ Petition No.9639/2014
needs to be paid on the plaint. If the value with separate relief is
considered and then the totalling of the relief is done, and the
value then comes as per the aforesaid Article, then the maximum
court fee will be payable. Only if the limitation of court fee is not
reached, separate court fee will be payable on each relief. In
view of this circumstance, this Court holds that the petition needs
to be allowed.
5.
Learned counsel for the respondents placed reliance
on some reported cases like:
(1) 2009(3) Mh.L.J. 35
Khairrunisa Haji Mohammed Vs. Afzal Haji Mohammed & ors.
(2) 2002(6) Kar.L.J. 70
Smt. Gowramma Vs. Nanjappa & ors.
(3) A.I.R. 1973 Bombay 91
Sadhu Mahadu Jagdale Vs. Tatya Sadhu Jagdale & ors.
(4) (1947( 49 Bom.L.R. 72
Shankar Maruti Girme Vs. Bhagwant Gunaji Girme
(5) Hardeep Singh Vs. Baldev Singh & ors. (unreported judgment)
decided by Delhi High Court
6. In view of the facts of the present case and the
aforesaid provision made in the Maharashtra Court Fees Act, this
Court holds that the maximum court fees which can be recovered
from the plaintiffs is Rs.3 Lakhs and they need not make
Writ Petition No.9639/2014
payment of more court fees.
7. In the result, the petition is allowed. Order of the
trial Court is modified, which is to be held that the maximum
court fees is Rs.3 Lakhs which is already paid by the plaintiffs
and the plaintiffs need not make any more court fees. Rule
made absolute. No costs.
(T.V. NALAWADE, J.)
fmp/wp9639.14
