Manoj Tejpal Shah vs Smt. Rekhabai Wd/O Namdeo Thakre ...
2017 Latest Caselaw 3805 Bom

                      cra49.16.O.J.odt                    1



                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      NAGPUR BENCH, NAGPUR

                               CIVIL REVISION APPLICATION NO.49 OF 2016

                               Manoj Tejpal Shah,
                               Aged about 47 years,
                               Occ: Business, R/o Main Road,
                               Khamgaon, Tah. Khamgaon,
                               District Buldhana.         ....... APPLICANT

                                                    ...V E R S U S...

                      1]       Smt. Rekhabai wd/o Namdeo Thakre,
                               Aged about 30 years, Occ: Agriculturist.

                      2]       Ku. Vaishnavi d/o Namdeo Thakre,
                               Aged about 8 years, minor through
                               natural guardian mother the
                               respondent No.1

                               Both R/o Paranbi, Tah. Muktainagar,
                               District Jalgaon (Khandesh).

Name of R.No.3        3]       Narayan Maroti Thakre
is deleted as per 
  Court's order                Aged about 65 years,
      dated                    Occ: Agriculturst, R/o Mandki,
   25.08.2014
                               Tah. Balapur, District Akola.

                      4]       Rameshwar Narayan Thakre,
                               Aged about 48 years,
                               Occ: Agriculturist, R/o Petkar Galli,
                               Near Burkale's house, At Post Nandura,
                               Tah. Nadura, District Buldhana.

                      5]       Renuka Parmeshwar Bharanbe,
                               Aged about 50 years,
                               Occ: Agriculturist, R/o Gaurkhed,
                               Tah. Nandura, District Buldhana.




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  cra49.16.O.J.odt                       2

 6]       Sou. Tarabai Narayan Thakre,
          Aged about 45 years, 
          Occ: Agriculturist, R/o Mandki,
          Tah. Balapur, District Akola.

 7]       Jagannath Narayan Thakre,
          Aged about 38 years,
          Occ: Agriculturist, R/o Mandki,
 ]        Tah. Balapur, District Akola.

 8]       Sau. Durga Vinayak Raut,
          Aged about 35 years, At and
          Post Batwadi, Tq. Balapur,
          District Akola.

 9]       Sau. Savita w/o Gajanan Wakte
          R/o Wadali Post Malegaon,
          Tq. Nandura, District Buldhana.

 10]     Rupesh Shrilal Mundhada
         Aged about 32 years, 
         Occ: Agriculturist, R/o In front of
         Asha Talkies, Nandura, Tah. Nandura,
         District Buldhana.                      ....... RESPONDENTS
 -------------------------------------------------------------------------------------
 Shri A.V. Bhide, Advocate for Applicant.
 -------------------------------------------------------------------------------------

 CORAM:            DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J. 

th DATE: 30 JUNE, 2017.

ORAL JUDGMENT

1] This revision application is preferred by original

defendant No.9 against the order passed by Civil Judge,

Junior Division, Shegaon in Regular Civil Suit No.41/2011,

thereby dismissing the application filed by the present

applicant for rejection of the plaint on the count that the

valuation of the suit claim is not made properly.

2] It is submitted by learned counsel for the

applicant that in the suit filed before the Trial Court, the

respondent Nos.1 and 2 are seeking a declaration that the

sale-deed executed by defendant No.1 in favour of defendant

No.8 on 11.08.2010 and further sale-deed executed by

defendant No.8 in favour of defendant No.9 on 18.04.2011 is

not binding on their share. It is urged that in para 4 of the

plaint, plaintiffs have further stated that defendant No.1 has

executed the sale-deed in favour of defendant No.8 for

consideration of Rs.5,05,000/-. Hence, according to learned

counsel for the applicant, the valuation should have made on

this amount of consideration of Rs.5,05,000/-, in view of the

provisions of Section 6 (ha) of the Maharashtra Court Fees

Act, 1959. It is urged that, as per the said provision, 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 the amount of Court fee shall be

computed on one half of ad valorem fee leviable on the value

of the property. Herein the case, it is submitted that, as per

para 7 of the plaint, the plaintiffs have valued the suit for the

purpose of Court Fee, only for the amount of Rs.375/- and for

pecuniary jurisdiction Rs.1000/-. Hence, the said valuation is

not at all correct and proper, and therefore, the applicant has

moved on application at Exh.31 before the Trial Court for

rejection of the plaint. However, it is submitted that, the

learned Trial Court has, without considering this contention,

on vague some reasons rejected the said application and

hence, the impugned order of the Trial Court being not

proper, legal and correct needs to be quashed and set aside.

3] The notice of this revision, as per the office note,

is duly served on all the respondents. However, none of them

as appeared in the case.

4] The perusal of the plaint, which is filed in the

revision, clearly goes to show that the suit is filed by the

plaintiffs for declaration that sale-deed executed by defendant

No.1 in favour of defendant No.8 on 11.8.2010, is not

binding on them, as the said sale-deed was executed with the

fraudulent object of usurping the share of the plaintiffs.

The provisions of Section 6 (ha) of the Maharashtra Court

Fees Act clearly state that in the case of relief claimed for

avoidance of sale, contact for sale, etc. plaintiff has to pay

one half of ad valorem fee leviable on the value of the

property. Here the subject-matter of the sale-deed, which is

challenged and sought to be declared as not binding on the

share of the plaintiffs is thus susceptible to monetary

valuation as the valuation thereof is mentioned in the

sale-deed to be Rs.5,05,000/-. The plaintiffs have valued the

suit under Section 6 (iv)(j) of the said Act on the count that

the subject-matter is not susceptible to monetary valuation

and thus, he has valued the same on ad valorem fee of

Rs.1000/-. The said valuation therefore, prima facie does not

appear to be correct and opportunity of hearing the plaintiffs

to correct the same, needs to be extended to the plaintiffs.

5] However, it can be seen that the Trial Court had

not considered these aspects in its impugned order and on

some vague reasons, which are not pertaining to the dispute

or the submission made before it in the applications, has

rejected the said application. The impugned order passed by

the Trial Court, therefore, does not appear to be legal, proper

and correct, as reasons given by the Trial Court are not at all

legal, correct or sufficient and hence needs to be set aside.

6] In this revision however, as respondent-plaintiffs

have not appeared, it would be proper on the part of this

Court to direct the Trial Court to decide afresh this

application Exh.31 filed by the applicant herein reulating to

the valuation of the suit claim being not proper and thereafter

if it is found to do so, to extend an opportunity to correct the

proper valuation and pay Court fee stamp accordingly. Only if

plaintiffs fail to do so, the plaint can be rejected under Order

VII Rule 11 of the Code of Civil Procedure and not otherwise.

Therefore, it is necessary to send back the matter to the Trial

Court for deciding afresh, the application filed by the present

applicant-defendant No.1 at Exh.31.

7] Accordingly, the revision is allowed.

The impugned order passed by the Trial Court is set aside.

The Trial Court is directed to decide the application filed at

Exh.31 by the present applicant, afresh and consider the

valuation of the suit claim in the light of the observations

made herein above and also in the light of the provisions of

the Maharashtra Court Fees Act and in accordance with the

law by giving proper reasons.

8] The revision is accordingly disposed of in above

terms.

JUDGE

NSN