Vilas Vishnupant Jadhav And Anr vs Smt. Surekha Shankar Jadhav And ...
2023 Latest Caselaw 2481 Bom

Citation : 2023 Latest Caselaw 2481 Bom
Judgement Date : 15 March, 2023

Bombay High Court

Vilas Vishnupant Jadhav And Anr vs Smt. Surekha Shankar Jadhav And ... on 15 March, 2023

Bench: S. V. Kotwal

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.2462 OF 2023

Vilas Vishnupant Jadhav
and another .....Petitioners
Versus
Surekha Shankar Jadhav
and others .... Respondents
-----
Mr. Vijay D. Patil, Advocate i/b. Kalpesh U. Patil, for the
Petitioners.
Mr. Aniket Malu, Advocate a/w. Akshay Petkar i/b. Amey
Deshpande, for Respondent Nos.1 to 6.
-----

CORAM : SARANG V. KOTWAL, J.

DATE : 15th MARCH, 2023
P.C. :

1. Heard Shri Vijay Patil, learned counsel for the

Petitioners and Shri Aniket Malu, learned counsel for

Respondent Nos.1 to 6.

2. By consent of both the learned counsel for the

Petitioners and the contesting Respondent Nos.1 to 6, the

Petition is taken up for final decision at the admission stage.

3. The Petitioners are the original Plaintiffs and the

Respondents are the original Defendants. The suit was filed
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Deshmane(PS)
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before the Civil Judge, Senior Division, Pune being Special

Civil Suit No.967/2022 for declaration that the gift deed

dated 27.11.2017 is illegal; and for partition and declaration

in respect of the suit property.

4. The original Defendant Nos.1 to 6 i.e. the

Respondent Nos.1 to 6 herein preferred an application for

rejection of plaint under O-7 R-11 of the Code of Civil

Procedure. The learned trial Judge partly allowed that

application vide order dated 17.1.2023 passed below

Exhibit-34 in the said suit. Vide that order the Plaintiffs i.e.

the Petitioners herein were directed to correct the valuation

of the suit and to pay sufficient court fees within 30 days

from the date of the order. The reasons given by the learned

Judge were in paragraph-7.

5. The Defendant Nos.1 to 6 had contended that

the Plaintiffs had paid the court fees on the valuation of the

property in the year 2017, but, it should have been paid on

the valuation as per the prevailing rate of the property at the

time of institution of the suit. The suit was instituted on

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30.4.2022. According to those Defendants, the valuation of

the property mentioned in the gift deed was Rs.5 Crores and,

therefore, the Plaintiffs should have paid the Court fees to

the tune of Rs.3 Lakhs, however, they had paid Rs.1,35,000/-

only.

6. The Plaintiffs had opposed this contention.

7. The learned Judge referred to Section 6(iv)(ha)

of the Maharashtra Court Fees Act, 1959 (for short, 'the said

Act'). The learned Judge observed that the Plaintiffs had

taken the value of the property which was prevailing in the

year 2017 and the suit was filed in the year 2022. The

learned Judge observed that the Plaintiffs were expected to

file the document showing the current valuation of the

immovable property as was prevailing in the year 2022 i.e.

at the time of institution of the suit. Having observed thus,

the learned Judge further observed that having regard to the

specific provisions of O-7 R-11 (c) of C.P.C., direction was

given to the Plaintiffs to correct the valuation of the suit and

to pay the deficit court fees. On this reasoning, the

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impugned order was passed.

8. Learned counsel for the Petitioners submitted

that the issue is no more res integra. This Court had already

taken a view that the value of the property which was

mentioned in the instrument is the relevant factor and not

the valuation which was prevailing at the time of institution

of the suit. He relied on the ratio of the judgment passed by

a Single Judge Bench of this Court in the case of Laxman

Dinkar Dagade & Ors. Vs. Bhagwan Bhausaheb Thorat &

Ors.1. The relevant observations are in paragraphs-5 & 6,

which read thus :

"5. The provisions of Section 6(iv)(ha) of the said Act
provide that any suits for declaration that any sale, or
contract for sale or termination of contract for sale, of
any moveable or immovable property is void, then
the court fee payable shall be one half of the ad
valorem fee leviable on the value of the property.
Significantly, this provision makes reference to 'value
of the property' and not 'market value of the property'.
6. The impugned order, however takes the view that
market value of the property and not the value of the
property as prevalent in the years 1971 and 1979 can
be taken into account for the purposes of determining
valuation and payment of court fees. This approach,
1 2015 SCC OnLine Bom 5353
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is contrary to the law laid down by this Court, in the
cases of Abdul Gaffar Abdul Samad v. Niranjan
Kumar Ramnath Prasad Dwivedi & Ors. 2005 (3)
Bom.C.r. 879 and Sau. Asha Sopan Maithane vs.
Ramkrushna Punjaji Wanare & Ors., 2010 (5) AIR
Bom R. 326 wherein this Court has held
that the words employed in Section 6 (iv)(ha) of the
said Act are 'value of the property' and not 'market
value of the property'. Accordingly, value of the
property for which the sale deed was executed would
be relevant and not its market value in the matter of
determination of court fees."

Learned Counsel for the Petitioners, therefore,

submitted that based on this ratio, the reasoning of the

learned trial Judge is not correct and the order needs to be

set aside. Learned counsel for the Respondent Nos.1 to 6

tried to support the impugned order. However, he could not

controvert that the judgment in Laxman Dagade's case

(supra) covers the issue.

9. I have considered these submissions. It is

obvious that the issue in question is covered by the judgment

in Laxman Dagade's case (supra). It is clearly laid down in

paragraph-6 of that judgment that the value of the property

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