Bombay High Court
Vijay Deorao Goje vs Shrikrishna Sadashiv Choudhari ... on 25 July, 2016
Bench: S.P. Deshmukh
1 30 wp 9667.13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9667 OF 2013
1. Vijay Deorao Goje
Age: 40 yrs, Occ. Agri.,
R/o Goje Niwas, Ajabnagar,
Tq. & Dist. Aurangabad. ...Petitioner
Vs.
1. Shrikirshna Sadashiv Choudari,
Age: 79 years, Occ. Nil,
R/o. Opp. Gautam Dal Mill,
Namrata Saw Mill, At Post Naregaon,
Dist. Aurangabad.
2. State of Maharashtra,
Through Collector for and on behalf of
State of Maharashtra and
Sub-Registrar, Collector Officer,
Aurangabad.
3. Bhikulal Radhakisan Varma @ Ravat,
Age: 57 years, Occ. Agri & Business,
R/o Kuwarfalli, Rajabazar, Aurangabad. ....Respondents
----
Mr. S.S. Wagh, Advocate for the petitioner.
Mr. Deelip L. Khivsara, Advocate for respondent no.1.
Mr. S.N. Kendre, AGP for respondent-state.
----
CORAM : SUNIL P. DESHMUKH, J.
DATE : 25-07-2016.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally
with consent of the parties.
2. The petitioner is before this court in respect of an order
dated 30-09-2013 passed by 3rd Joint Civil Judge Senior Division,
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Aurangabad in Regular Civil Suit No. 620 of 2013 upon an
application exhibit-23 moved by defendant no.1, purportedly
pursuant to order VII, rule 11 of the Civil Procedure Code,
questioning the valuation of the land for the purpose of payment of
court fee, injunction, declaration and mandatory injunction to
respondent no.2 to carry out official duty registering sale deed
agreed to be executed by defendant in favour of petitioner-plaintiff.
After hearing the learned counsel for the appearing parties, it
appears that registration of sale deed had been refused by the Sub-
registrar, Aurangabad for the reason that the property stands in the
name of defendant no.1, and not in the name of defendant no.3.
3. The sub-registrar as such expressed his inability to
register the deed of conveyance. It is against such refusal, the suit
has been instituted, inter alia, seeking mandatory injunction against
the Sub-registrar, Aurangabad to register the deed of conveyance
between plaintiff and defendant no.1. The plaintiff, inter alia, has
referred to that the market value of land may be around Rs.40 lakh.
It has also been referred to that the suit is for declaration and
injunction and land being an agricultural land, it had been valued
accordingly at 800 times the land revenue assessment and for the
purpose of declaration, it had been valued around Rs.3500/- i.e.
200 times the assessment and for the purpose of injunction it was
valued at Rs. 2000/- and accordingly court fees came to be paid.
3 30 wp 9667.13.odt
4. The application exhibit-23 had been moved disputing
the valuation as is appearing in the pleadings of the plaintiff,
referring to that the suit land value is around Rs. 40 lakhs and
accordingly the court fees ought to have been deposited.
5. The defendant as such purported to move exhibit-23
with reference to order VII, rule 11. The plaintiff resisted the
application and the application of defendant no.1 came to be
allowed. Said order is impugned in the writ petition and since been
suit proceedings have remained stayed.
6. Learned counsel for the petitioner, Mr. Wagh contends
that as far as valuation of the suit property is concerned its an
agricultural land and had been accordingly valued as per the suit
Valuation Act and accordingly provisions of Maharashtra Court Fees
Act, 1959. He submits that the subject matter of the suit is
covered under section 6(iv)(j) of the Maharashtra Court Fees Act,
1959, all the reliefs claimed and the circumstances show that the
suit has been valued properly and market value is not a relevant
consideration. He submits that, the trial court has been swayed
away by considerations which were not relevant.
7. The learned counsel for the respondents submits that,
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the subject suit would be covered by item 7 of schedule I of
Maharashtra Court Fees Act, 1959.
8. After hearing learned counsel, the position emerges that
though pleadings are complete, however, issues have not been
framed as yet. The application decided is stated to be pursuant to
order VII, rule 11, whereunder, the courts are required to go by the
averments in the plaint. Perusal of the impugned order shows that
the court had been oblivious of the pleadings of the parties and that
an issue from the same may arise. There are averments in respect
of the court fees being paid along with the plaint and there is denial
of the same by defendant no.1.
9. Having regard to the subject matter, the stage does not
appear to be ripe enough to come to a definitive conclusive position
that the situation can at this stage said to be covered by item 7 of
schedule I of Maharashtra Court Fees Act, 1959. Such an inference
in the proceedings of the nature under order VII, rule 11 may be
little vulnerable to draw, as the parties may require to address
themselves properly along with evidence in this respect. The
judgments which have been relied on by the trial court while
deciding the application exhibit-23 appear to have been decided in
different factual situations, which do not apparently seem to have
any similarity with the facts as have been involved in the present
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matter. It may not be out of place to refer to that the reliance on an
item of schedule without reference to the substantive provision in
the enactment may not be a proper consideration at the stage at
which application has been decided.
10. In the circumstances, although learned counsel Mr.
Khivsara, with quite some exuberance submits that when the
plaintiff himself refers to the valuation of the property, it is but
natural that he should pay the court fees accordingly.
11. In the circumstances, it would be expedient that having
regard to the pleadings of the parties proper issue be framed and
the same be decided in accordance with facts and law and the
parties be given an opportunity. Having regard to the present
scenario, the suit is pending for issues since 2013 and has been
stayed under an interim order of this court, it would be further
expedient that issues be framed and all the issues be proceeded
with, pursuant to the relevant rules under order XIV of Civil
Procedure Code. For aforesaid purpose, impugned order stands set
aside, since the suit is pending from 2013, the court may do well to
proceed with the same expeditiously. Rule is made absolute in
aforesaid terms.
(SUNIL P. DESHMUKH)
mub JUDGE
