1998(3) ALL MR 759
IN THE HIGH COURT IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.M. LODHA, J.

Manjula M. Thakkar Vs. Shivshakti Enterprises & Ors.

Writ Petition No.6318 of 1997

18th February, 1998

Petitioner Counsel: Mr.S.G. VAKIL Mrs.REKHA K. MEHTA
Respondent Counsel: Mr.S.R. NARGOLKAR

Bombay Court Fees Act (1959), Sch.I, Art.7 - Mah.Govt. Notification No.1091/CR dt.1.10.94 - Exemption from Court fees - Women litigants - Suit for specific performance of contract - Suit is covered by Art.7 - Woman-Plaintiff is entitled for exemption.

The present suit is filed in a Civil Court by a woman litigant and it pertains to a property dispute.

The suit for specific performance is clearly covered by Art.7 of the First Schedule.

A suit for specific performance is clearly a suit to obtain substantive relief capable of being valued in terms of money and as such covered by this residuary article. The petitioner is thus entitled to the exemption.

Cases Cited:
1996 (1) Mh LJ 74 [Para 5]


JUDGMENT

JUDGMENT :- Leave to amend granted.

2. Rule. Returnable forthwith.

3. The learned counsel for the petitioner submits that no relief is sought in the petition against respondents Nos.1 and 2 and therefore service may be dispensed with on them. Mr.Nargolkar, Assistant Government Pleader, waives service on behalf of respondent No.3.

4. By this writ petition, the petitioner who is plaintiff in the suit prays that she be permitted to file the above summary suit without payment of ad valorem court fee in accordance with the exemption by the Notification No.1091/CR dated 1.10.1994. The petitioner is a lady and submits that in view of the aforesaid notification she is not liable to pay the ad valorem court fee on the said suit.

5. The petitioner relies upon the judgment of this Court in Deepa Shashikant Godambe v. State of Maharashtra and others, 1996(1) Mh LJ 74 and the aforesaid notification.

6. The notification dated 1.10.1994 reads thus :

"REVENUE AND FORESTS DEPARTMENT

Mantralaya, Bombay - 400 032, dated the 1st October, 1994.

BOMBAY COURT FEES ACT, 1959.

No STP/1094/CR/859/M. 1 - Whereas the Government of Maharashtra has recently announced a policy with a view to promote the welfare of the women:

And whereas, the said welfare policy for women inter alia, provides for exemption of court fees for women litigants in cases relating to maintenance property right, violence and divorce.

And whereas section 46 of the Bombay Court Fees Act, 1959 (Bom. XXXVI of 1959) empowers the State Government by notification in the Official Gazette to reduce or to remit any of the fees mentioned in the First and Second Schedules to that Act :

Now, therefore, in exercise of the power conferred by section 46 of the Bombay Court Fees Act, 1959 (Bom.XXXVI of 1959), the Government of Maharashtra hereby remits the fees payable by women litigants on any of the plaints, applications petitions. Memorandum of appeals or any other documents specified in the First and Second Schedules to the said Act to be filed in any Civil. Family or Criminal Courts in respect of the cases relating to (a) maintenance, (b) property disputes, (c) violence and (d) divorce.

By order and in the name of the Governor of Maharashtra.

HARSHAWARDHAN GAJBHIYF

Deputy Secretary to Government."

The said notification has been construed by this Court in Deepa Shashikant Godambe's case wherein it has been held by this Court thus :

"On plain reading of this notification, it is seen that the welfare policy for the women, inter alia, provides for exemption of Court-fees for women litigants in cases relating to maintenance, property disputes, violence and divorce. It is also seen that by issuing the said notification, the Government of Maharashtra has remitted the fees payable by the women litigants on any of the plaints, applications, petitions, memorandum of appeals or any other documents specified in the First and Second Schedules to the Act to be filed in any Civil. Family or Criminal courts in respect of cases relating to the aforesaid categories.

7. There is no dispute that the present suit is filed in a Civil Court by a woman litigant and it pertains to a property dispute. The trial Court has however, declined to grant exemption on the ground that the present suit which is a suit for specific performance, is not covered by the First and the Second Schedules of the Act. In my opinion, the trial court is wrong in taking this view, because the suit for specific performance is clearly covered by Article 7 of the First Schedule. The First and the Second Schedules of the Act determine the method of assessment of fee. Schedule I contains as many as seven articles. I am not concerned with Articles 1 to 6 but Article 7 which is a residuary article reads as follows:

"Any other plaint, application or petition (including memorandum of appeal), to obtain substantive relief capable of being valued in terms of monetary loss, including cases wherein application or petition is either treated as plaint or is described as the mode of obtaining the relief as aforesaid."

Now a suit for specific performance is clearly a suit to obtain substantive relief capable of being valued in terms of money and as such covered by this residuary article. The petitioner is thus entitled to the exemption.

8. The learned Assistant Government Pleader fairly concedes that in view of the aforesaid legal position the petitioner is not liable to pay ad valorem Court fee in Summary Suit No.2486 of 1997.

9. Accordingly the writ petition is allowed and it is directed that the petitioner is not liable to pay ad valorem court fee in Summary Suit No.2486 of 1997 and she is permitted to file and proceed with the said suit without payment of court fee. Rule is made absolute in aforesaid terms. No costs.

Petition allowed.