Shri Roy Bibhuti Kumar S/O ... vs State Of Maha., Thr. Asstt. ...
2016 Latest Caselaw 6065 Bom

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                                                              wp6049.16.odt

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                           
                 NAGPUR BENCH, NAGPUR




                                                   
                       Writ Petition No.6049 of 2016




                                                  
      Shri Roy Bibhuti Kumar s/o
      Deokiprasad Sinha,
      Aged about 54 years,
      Occupation - Service,
      R/o Qt. No.B37, Durgapur




                                         
      Colony (WCL),
      Post - Urjanagar,      
      Dist. Chandrapur (M.S.).                         ... Petitioner/
                                                       Ori. Plaintiff
                            
           Versus


      State of Maharashtra,
      

      through Assistant Superintendent,
      Technical Wing, (Civil Court),
   



      District and Sessions Court, 
      Nagpur.                                          ... Respondent





      Shri N.A. Chauhan, Advocate for Petitioner.
      Ms Geeta Tiwari, Assistant Government Pleader for Respondent.


                    Coram : R.K. Deshpande, J.

th Dated : 15 October, 2016

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Oral Judgment :

1. Rule, made returnable forthwith. Heard finally by

consent of the learned counsels appearing for the parties.

2. The Trial Court has categorized the suit in question as

one covered by Section 6(iv)(d) read with Section 6(v) of the

Bombay Court Fees Act, 1959 and the petitioner-plaintiff is

directed to pay the court fee as per the market value of the plot

in question, which is Plot No.158. Perusal of the plaint shows

that it is a relief of possession claimed by the petitioner-plaintiff

on the basis of his title over the suit property. Till this date, the

Court has not issued summons to the defendants, and it is on the

basis of the office objection that the impugned order has been

passed. As a result of this order, the suit of the

petitioner-plaintiff is not being registered and he is unable to

move an application for grant of temporary injunction for

appropriate orders before the Trial Court.

3. Shri Chauhan, the learned counsel for the

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petitioner-plaintiff, has invited my attention to Section 6(v) of

the Maharashtra Court Fees Act, and according to him, it does

not make any difference as to whether it is the land which is

converted for non-agricultural purpose or it is the land which is

being used for agricultural purpose. According to him, as per this

provision, the valuation has been made and the court fee has

been paid. He submits that the provision of Section 6(iv)(d) of

the said Act would be attracted only if there is a relief of

declaration claimed in the suit and not otherwise. He further

submits that there is no relief of declaration claimed in the suit.

The points raised are arguable.

4. In view of the aforesaid arguments advanced by the

learned counsel for the petitioner-plaintiff, the Trial Court ought

to have seen that the question could have been decided after

framing an issue or upon any objection to be raised by the

defendants in the suit. Hence, the Trial Court has committed an

error in directing the petitioner-plaintiff to deposit the amount of

court fee as per the market value of the plot in question or as per

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the valuation shown in the sale-deed.

5. In the result, the petition is allowed. The impugned

order passed by the Trial Court on 18-8-2016 on the basis of the

office objection dated 16-8-2016, is hereby quashed and set

aside. The Trial Court is directed to register the plaint and

proceed further in the matter. If it is found that the question of

proper court fee is involved in the matter, the same can be

decided afresh after hearing the parties either framing the issues

or even before that upon any application moved by the

defendants. Merely because this Court has set aside the order

impugned shall not be construed as any adjudication by this

Court on the issue.

6. Rule is made absolute in above terms. No order as to

costs.

JUDGE.

Lanjewar