Bombay High Court
Common Piru Chaudhari vs Berubai Chendu Redhiwale And ... on 14 June, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Civil Revision Application No. 3 of 2017
Applicant : Common Piru Caudhari, aged about 47
years, Occ: Household, resident of Gedshi,
Tahsil Malegaon, District Washim
versus
Respondents : 1) Berubai Chendu Redhiwale, aged
about 70 years, Occ: Nil
2) Chandu Chendu Redhiwale, aged about
52 years, Occ: Agriculturist,
Both residents of Gedshi, Tahsil Malegaon,
District Washim
3) Nindu s/o Chendu Redhiwale, aged about
50 years, Occ: Agriculturist
4) Jakir Chendu Redhiwale, aged about 42
years, Occ: Agriculturist
5) Chotu alias Chotya Chendu Redhiwale, aged
about 40 years, Occ: Agriculturist
6) Commonbai Kalu Porsuwale, aged about
48 years, occ: Agriculturist
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7) Mannubai Chatu Chaudhari, aged
about 45 years, Occ: Agriculturist
8) Buddebai Nathu Naurangabadi, aged
about 58 years, Agriculturist
respondents no. 3 to 8 residents of Shirpur
Jain, Tahsil Malegaon, Dist. Washim
Shri R. Deshpande, Advocate h/f Shri S. V. Sirpurkar, Advocate for
applicant.
None appears for respondents.
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Coram : S. B. Shukre, J
Dated : 14th June 2017
Oral Judgment
1. Heard learned counsel for the applicant at length. None appears
for the respondents though served. Admit. Taken up for final hearing pursuant
to the order dated 11th January 2017.
2. On going through the impugned order and as rightly submitted by
learned counsel for the applicant, learned Civil Judge, JD, Malegaon has
committed a serious error of law in applying the provisions of Section 6 (iv)
(ha) of the Bombay Court Fees Act (for short, the "Act"). It may be noted that
prayer clause (c) of the plaint seeks only a declaration that the sale deed dated
25.2.2013, so far as the plaintiff is concerned, is not binding on him. There are
other clauses in the prayer which seek similar kind of declarations. The
declarations sought in the prayer are only to the extent that various sale deeds
specifically mentioned therein are not binding upon the applicant. None of the
prayer clauses is seeking a declaration that all these sale deeds or any of them
are/is null and void.
3. Section 6 (4) (ha) of the Act reads thus :
"6. Computation of fees payable in certain suits
The amount of fee payable under this Act in the suits next
hereinafter mentioned shall be computed as follows:
........
(iv) (ha). for avoidance of sale, contract for sale, etc.
In suits for declaration that any sale or contract for sale or
termination of contract for sale, of any moveable or immoveable
property is void - one half of ad valorem fee leviable on the
value of the property."
Obviously, clause (ha) of Section 6 (iv) of the Act
applies only when the suit seeks declaration that any sale or
contract for sale or termination of contract for sale of any
moveable or immoveable property is void and as such, it would
have no application to declarations sought in this case which do
not seek any sale or contract for sale or termination of contract
for sale of any immovable or movable property to be void. One
must understand that there is a sea difference between a
declaration that any sale or contract for sale is null and void and
the declaration that the sale or contract for sale has no binding
effect. In the former case, the very existence of the sale
transaction or contract for sale is sought to be razed whereas in
the latter case, such existence is not sought to be denied but its
effect is only sought to be not applicable to the person seeking
declaration. This would mean that when the declaration that a
sale or contract for sale insofar its effect is concerned, does not
affect in any manner the claimant or is not binding upon the
claimant, its existence is not sought to be denied and it may still
be binding upon all others but the claimant. It would then follow
that the declarations as sought by the applicant in this case were
such as were not covered by clause (ha) of Section 6 (iv) of the
Act and that would be covered by some different clause.
4. At this juncture, learned counsel for the applicant
has invited my attention to clause (j) of Section 6 (iv) of the Act
which is reproduced as under:
"(j) for other declarations
In suits where declaration is sought, with or
without injunction or other consequential relief and
the subject-matter in dispute is not susceptible of
monetary evaluation and which are not otherwise
provided for by this Act, ad valorem fee payable, as if
the amount or value of the subject matter was one
thousand rupees.
In all suits under clauses (a) to (I) the plaintiff
shall state the amount at which the values the relief
sought, with the reasons for the valuation."
5. Even a cursory glance at the above clause would be
enough to clear the air of doubt pervading the issue involved in
this case. The nature of prayers made in the plaint in the present
case is already discussed in detail. These declarations would be
squarely covered by above-referred clause contained in clause (j)
of Section 6 (iv) of the Act. Learned counsel for the applicant, on
instructions, states that the court fee in terms of clause (j) has
already been paid by the applicant.
6. These material aspects of the case have been missed
out completely by the learned Civil Judge, JD, Malegaon and,
therefore, the impugned order patently stands contrary to law
and as such, it is liable to be quashed and set aside by allowing
the revision application.
7. Civil Revision Application is allowed. The
impugned order is quashed and set aside. Application (exhibit
23) stands rejected. No costs.
S. B. SHUKRE, J
joshi
