Summary Suit No, 1638 of 1998

2nd May, 2000

Respondent Counsel: Mr.HALVASIA , Ms.RAJNI IYER, Ms.DEEPTI NAZARETH i/b M.V.JAIKAR & CO. Ms.UMA SHAH with Mr.K.D.SHAH, Mr.ANAND GROVER i/b V.B.JURIS , Mr.S.JAIN with Mr. A.V.JAIN, Mr.C.P.U.NAIR, Mrs.SIDPRA
Other Counsel: Mr.G.E.VAHANVATI, Advocate General with Mr.UTANGALE

Cases Cited:
Deepa v. State of Maharashtra, 1996(1) ALL MR 180=1996(1) MLJ 74 [Para 9]
Sanjay v. Vrishali Sanjay Jain, 1997(2) ALL MR 560 =1997(2) MLJ 264 [Para 9]
Pankuwarbai Mutha v. Rameshchandra Mutha , 1998 (4) BCR 477 [Para 9]
Parwatibai v. State of Maharashtra , 1997(3) ALL MR 541=1998(2) BCR 593 [Para 9]
Manjula Thakkar v. Shivashakti Enterprises , 1998(3) ALL MR 759 =1998 (5) BCR 265 [Para 9]
Ashabai V. Ex.Engineer, M.S.E.B, 1999(1) ALL MR 442 [Para 9]
Appeal (Lodging), No.1254 of 1999 in Suit No.198 of 1981 dt. 9th April 1999 [Para 9]
Re : Vidya Shivajirao Patil, 1999(2) ALL MR 615=AIR 1999 Bombay 318 [Para 9]
Testamentary Petition, Nos.346 of 1998 and 576 of 1999 dt. 10th February 2000 [Para 9,10]
Baburam v. C.C.Jacob, AIR 1999 SC 1845 [Para 10]
Nagin v. Haribhai, AIR 1980 Bombay 123 [Para 13]
Union of India v. Paliwal Electrical (P) Ltd., (1996) 3 SCC 407 [Para 16]
D.N.Banerji v. P.R.Mukherjee, AIR 1953 SC 58 [Para 16]
Testamentary Petition, No. 284 of 1996 dt 26th June 1996 [Para 9]

JUDGMENT

JUDGMENT :- The plaintiff herein, a woman litigant, has filed this summary suit for recovering the amount advanced by way of a loan to the defendant company. The plaintiff has sought a decree for the sum of Rs.1,06,375/- together with interest at the rate of 18% per annum on the principal claim of Rs.70,000/- from the date of filing of the suit till payment and/or realization. The Plaintiff has not paid any court fee on the plaint and it is averred in para 12 of the plaint as follows :-

"The plaintiff being a female litigant in the present suit is exempted from payment of court fees and hence no court fees have been paid."

This suit has been lodged on 3rd April 1998 and the plaintiff is seeking to proceed with the suit without payment of the court fees in view of the then prevailing Notification dated 1st October 1994 issued by the Government of Maharashtra invoking the powers conferred under Section 46 of the Bombay Court Fees Act, 1959 remitting the fees payable by women litigants in certain circumstances.

2. The suit was duly numbered without payment of court fees. After service of the Writ of Summons on the defendant, appearance was filed on their behalf. Hence summons for judgment has been taken out by the plaintiff. Thereafter the matter came up before my brother Lodha J. on 9th February 2000. During the course of the hearing before the learned Judge, objection was raised on behalf of the defendants that this suit is essentially concerning a commercial transaction and the notification would not apply to it. Thus, as recorded by the learned Judge in his order passed on that date, during the course of the argument the question cropped up as to whether the plaintiff is exempted from payment of court fees under the Notification dated 1st October 1994 with respect to the summary suit filed by her under Order XXXVII Rule 2 of Code of Civil Procedure. The learned Judge was of the view that to appreciate the question in its right perspective, it would be desirable that the Advocate General is also heard. Accordingly he directed a notice to be issued to the Advocate General for his appearance on the next date.

3. During the course of the hearing before my brother Lodha J., an affidavit was filed on behalf of the State Government by one Shri. P.G.Chhatre, Under secretary to the Government, Revenue and Forest department affirmed on 1st March 2000. In that affidavit, the Under Secretary made a reference to the policy for women framed by the Government of Maharashtra in the year 1994. Thereafter in paragraphs 2,3 and 4, the officer stated as follows:-

"2. I say that under the said policy for women the Government was concerned with women's access to property both at the matrimonial and maternal home. I say that the Government was also concerned with matrimonial ties and economic security for women who had found themselves in unequal, unhappy and violent relationships. I say that for these purposes the Government enunciated various steps to assist women one of which was regarding exemption for such women litigants regarding payment of Court Fees.

3. I further respectfully submit that the said notification dated 1st October 1994 must be construed with reference to the object sought to be achieved in pursuance of the said policy.

4. I say that the expression property in the said notification must be limited to the property of the matrimonial and maternal homes of the women."

4. As can be seen from the above referred affidavit on behalf of the State Government, the Government took a stand that the expression "property" in the said Notification must be limited to the property of matrimonial and maternal homes of the women. Thereafter to put the issue beyond any controversy, the State Government came out with another Notification on 23rd March 2000 adding an explanation to the earlier Notification issued on 1st October 1994 clarifying that 'the property disputes will mean property disputes arising out of and concerning matrimonial matters.' Toput the issue in right perspective, it is desirable to reproduce the earlier Notification and the amending Notification. The earlier Notification dated 1st October 1994 reads as follows:-

“REVENUE AND FORESTS DEPARTMENT

Mantralaya, Bombay 400 032, dated 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 same 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 permit any of the fees mentioned in the First and Second Schedules to that Act;

Now, therefore, in exercise of the powers 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 Schedule 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 GAJBHIYE

Deputy Secretary to Government”

5. The amending Notification reads as follows :-

“REVENUE AND FORESTS DEPARTMENT

Mantralaya, Bombay 400 032, dated 23rd March 2000

BOMBAY COURT FEES ACT, 1959.

No.5.30/2000/673/CR-199/M-1. - In exercise of the powers conferred by section 46 of the Bombay Court Fees Act, 1959 (Bom.XXXVI of 1959), the Government of Maharashtra hereby amends the Government Notification, Revenue and Forests Department No.STP.1094/CR-859/M-1, dated the 1st October 1994, as follows :-

In the said Notification, the following Explanation shall be added at the end, namely:-

“Explanation. - The expression “property disputes” shall mean              property disputes arising out of and concerning matrimonial              matters.”

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

P.G. CHHATRE

Under Secretary to Government”

6. Now, it so happened that during the time the matter was pending before my brother Lodha J. i.e. since February 2000, in all such matters where the office of the prothonotary had any doubts, it kept such matters in abeyance without numbering them. Thus a number of plaints filed by women litigants falling in different categories such as summary suits and suits seeking specific performance have been kept under objection to await the clarification from the Court in this behalf.

7. Thereafter by change of assignment, the matter came up before me. A number of advocates sought to intervene and make their submissions with respect to issues involved in this matter. The plaintiff's advocate had taken discharge in the meanwhile and hence the plaintiff was appearing in person, but a number of advocates appeared to espouse the cause that was canvassed by the plaintiff. Mr. Halvasia appeared for the defendant and the learned Advocate General Mr. Vahanvati with Mr. Utangale, A.G.P. have appeared for the State Government. It was accepted by all concerned that as far as the Notification dated 23rd March 2000 is concerned, it would not apply retrospectively, meaning that the amending Notification will be effective from the date of the Notification. The result will be that from the date of the Notification, the term "property disputes" will be confined to the property disputes arising out of and concerning matrimonial matters only. (This will of course be subject to the challenge to this Notification, if any.) Thus the suits such as those involving commercial causes and specific performance filed on and after 23rd March 2000 would not be eligible for exemption from court fees. The question however came up with respect to the suits which were filed prior thereto and which were not numbered. It was canvassed by the counsel for the defendant in this suit that the new notification only explains the import of the earlier notification and such suits were never covered thereunder. As against that, it was canvassed by the counsel for women litigants that whether you look at the controversy from the point of view of Government's policy for women or the wording of the notification, the "property disputes" were eligible for exemption. Suits of different types were given exemption all these years under the notification of 1st October 1994. The same approach has to be adopted to all the matters pending prior to the notification of 23rd March 2000. In view of these submissions, a general notice was issued to the advocates and parties appearing in person permitting them to make their submissions in this matter on the following two issues :-

(1) What is the scope and applicability of the exemption Notification dated October 1, 1994 bearing No.ST.P 1994/CR/859/M-1 ?

(2) Whether the said Notification dated 23rd March 2000 can in any way restrict and/or govern and/or control the exemption granted earlier by Notification dated 1st October 1994 with regard to payment of Court Fees by women litigants ?

8. Thus the controversy was as to what was the connotation of the phrase "property disputes" as it stood in the unamended Notification of 1st October 1994. Ms. Rajni Iyer, Ms. Uma Shah, Ms. Dipti Nazareth, Mr.Nair and Mr. Grover have appeared for various plaintiffs to canvass that the term "property dispute" as it existed in the unamended Notification covered all types of property disputes which were espoused by women litigants, whereas Mr.Halvasia, learned counsel for the defendant, contended that the term "property dispute" will have to be restricted to the disputes which arise out of and which are concerning matrimonial matters only. In his submission, though the amending Notification may not apply retrospectively, it was explaining the meaning of the term as it existed. That being so, in his submission the term could not be read in a wider sense. He submitted that the policy for women has to be looked into to understand the purpose for which the Notification had come to be issued initially on 1st October 1994. It was made for women in distress. It was meant for their disputes concerning maintenance, violence and divorce and it was in that context that the term "property dispute" had been inserted along with the other terms. On the other hand, Ms.Iyer and the other advocates appearing for the plaintiffs supporting wider interpretation submitted that whether the policy is looked into or whether the term "property disputes" is looked at independently, in either of the situations all types of property disputes will have to be covered under the Notification.

9. In this context, while dealing with these two issues, there was one very important aspect which had to be borne in mind, namely that whereas the earlier Notification was issued way back on 1st October 1994, the new Notification has been issued 5 years and 5 months after the earlier Notification. In the meanwhile, the Notification has come to be pressed into service by a number of women litigants and the same has been considered in number of judgments/orders passed by various judges of this Court. The counsel on both the sides as well as the learned Advocate General took me through the various judgments whether reported or unreported. The judgments/orders which have been brought to my notice are the following:-

(1) Deepa v. State of Maharashtra, reported in 1996 (1) MLJ 74 : (1996(1) ALL MR 180), decided on 19th September, 1995 by my brother A.P.Shah, J. That was a matter wherein the plaintiff had filed a suit for specific performance and had sought exemption from payment of court fees under the Notification of 1st October 1994. Since the Trial Court declined to grant exemption on the very ground that the suit was for specific performance and that it was not covered by First and Second Schedule to the Act, the plaintiff had filed a writ petition invoking Article 227 of the Constitution. The learned judge took a view that the suit for specific performance would be covered under Article 7 of the First Schedule and therefore entertained the petition and granted the exemption as sought.

(2) Testamentary Petition No.284 of 1996 decided on 26th June 1996 by K.G.Shah J. (unreported). This was a matter where a widow being a sole executrix under the last Will of her husband had filed the testamentary petition. She had not paid the court fees on the probate petition. It was submitted on her behalf that under Section 46 of the Bombay Court Fees Act, the State Government had come out with an exemption Notification covering property disputes. The officer of the Prothonotary took the view that the Notification would not apply to her petition. Therefore, to have a judicial decision on the question, the matter had been placed before the Court. The learned Judge also issued a notice calling upon all concerned to have their say in the matter and Assistant Government Pleader appeared on behalf of the State and Superintendent of Stamps. After hearing all concerned, the learned Judge observed as follows in paragraph 16:-

"There is no indication anywhere in the notification showing that the notification is not intended to apply in relation to the applications or petitions for probate or letters of administration. There is no indication therein to show that it does not apply in relation to the applications for succession certificate."

The contrary argument canvassed by the learned Assistant Government Pleader was recorded by the learned Judge in paragraph 19 and be rejected the same. The learned Judge accordingly held that the petitioner was not required to pay any court fees in relation to the probate petition.

(3) Sanjay v. Vrishali Sanjay Jain, reported in 1997 (2) MLJ 264 : (1997(2) ALL MR 560) decided by Sirpurkar J. on 19th March 1997. This was a matter where in a petition for restitution of conjugal rights filed by the husband, his wife had filed a counter-claim seeking damages of Rs.5 lakhs for mental torture. The Trial Court had permitted the counter-claim to be raised without payment of court fees. The order of the Trial Court was challenged in revision by the husband contending that the Notification was not applicable to the counter-claim filed by the wife. The learned Judge held that the adverb "relating to" used prior to the four subjects covered under the Notification will have to be read in proper perspective. He took the view that the claim of the wife therefore seeking damages for mental torture would fall under the phrase "relating to violence" and therefore upheld the order of the Trial Court exempting her from payment of court fees under the Notification of 1st October 1994.

(4) Pankuwarbai Mutha v. Rameshchandra Mutha, reported in 1998 (4) BCR 477 decided by Vagyani J. on 27th August 1997. This was a matter wherein the petitioner had applied for issuance of a succession certificate. The Trial Court insisted on payment of court fees before the issuance of the certificate and hence the petitioner had come to the High Court in Civil Revision Application. The petitioner relied upon the judgment of A.P.Shah, J. (supra) and contended that court fee would be exempted. The Civil Judge, Senior Division had taken a view that the phrase "property dispute" will cover only dispute pertaining to immovable property. Vagyani J. took the view that such an interpretation was too narrow and too technical. He therefore entertained the Revision filed by the petitioner and exempted her from payment of court fees.

(5) Parwatibai v. State of Maharashtra, reported in 1998 (2) BCR 593 : (1997(3) ALL MR 541), decided by Vagyani J. an 24th October, 1997. This was a matter wherein the petitioner was denied exemption from payment of court fees in a motor accident claim. She had therefore filed a Civil Revision against the decision of the Motor Accident Tribunal. The learned judge took the view that the Notification of 1st October 1994 applies to the disputes pertaining to both movable and immovable properties. That apart, he also took the view that under Rules 257(3) of the Maharashtra Motor Vehicles Rules, the Motor Accident Tribunal had the power to grant such an exemption. He therefore entertained the Revision and granted the petitioner the benefit of exemption from payment of court fees.

(6) Manjulal Thakkar v. Shivshakti Enterprises, reported in 1998 (5) BCR 265 : (1998(3) ALL MR 759), decided by Lodha J. on 18th February 1998. This was a writ petition wherein the petitioner had filed a summary suit without paying the advalorem court fee. The Trial Court declined to grant her exemption and hence she had filed a writ petition. The petitioner relied upon the above referred judgment of A.P.Shah, J. in the case of Deepa v. State of Maharashtra (supra). On behalf of the State, the proposition canvassed by the petitioner was not disputed. In paragraph 8 of the order, it is recorded as follows:-

"The learned Assistant Government Pleader fairly concedes that in view of the aforesaid legal position, the petitioner is not liable to pay advalorem court fee in Summary Suit No.2486 of 1997."

The learned Judge therefore allowed the petition and directed that the petitioner was not liable to pay the advalorem court fee as required by the Trial Court.

(7) Ashabai v. Ex.Engineer, M.S.E.B. reported in 1999(1) ALL MR 442 decided by Palkar J. on 29th July 1998. That was a suit filed by a woman litigant claiming compensation for death of her husband due to electric shock. The learned judge took the view that property disputes do not include tortuous liability.

(8) Appeal (Lodging) No.1254 of 1999 in Suit No.198 of 1981 decided by Y.K.Sabharwal, CJ. (as he then was in this Court) and Radhakrishnan J. on 9th April 1999 (unreported). That was an appeal which was directed against an exparte decree passed against all the defendants in the suit jointly and severally. The suit had been filed in the year 1981. Though initially the defendants had filed written statement, subsequently they absented themselves resulting into an exparte decree. The notice of motion to set aside that decree had failed. Thereafter execution proceedings were taken out. The husband of the appellant had filed an SLP which also came to be dismissed while permitting the parties to file an appeal on merits. The appeal filed by the company and one of its directors had been dismissed. It was at that stage that the lady appellant who was one of the directors of the company had filed the above referred appeal and had sought exemption from payment of court fees. The Division Bench referred to the above referred Notification of 1994 and then observed in paragraph 2 of the judgment as follows :-

"A bare reading of the aforesaid Notification shows that it is issued with a view to promote the welfare of the women and protect them in litigation relating to maintenance, property disputes, violence and divorce. It is evident from the Notification that it has no applicability to the litigation of the present nature which has been filed by the Bank against the principal debtors and Directors. The decision of the learned Single Judge in the case of Parvatibai w/o Vijaydas v. State of Maharashtra, 1998 (2) Mh.L.J. 73, relied upon by the learned Counsel for the appellant has no applicability to the litigation of the present nature. Therefore we are of the view that the appellant is not entitled to exemption for payment of court fees under the Notification reproduced above."

Thus the Appeal Court took the view that the Notification had no applicability to the litigation which was there before the Court filed by the Bank against the principal debtor company and its directors. The Court had therefore taken the view that the appellant was not entitled to the exemption of the court fees under the Notification.

(9) In Re : Vidya Shivajirao Patil, reported in AIR 1999 Bombay 318 : (1999(2) ALL MR 615), decided by me on 28th April, 1999. This was a matter wherein the petitioner, a grand mother of a male child, had sought letters of administration to the property, assets and credits of her daughter for the benefit of her grand son. On the strength of being a woman litigant, she had sought exemption from payment of court fees. This was a case wherein the grand father of the child was also available who could have filed the petition and hence taking a view that the revenue should not suffer unnecessarily, I directed that the petitioner will have to pay the necessary court fees on the petition. There were two other petitions along with this petition which also came to be decided under that order. In those two other matters, to the extent the ladies were beneficiaries they were granted exemption from payment of court fees under the Notification, where as to the extent the beneficiaries were male members they were required to pay the court fees to that extent.

(10) Testamentary Petition Nos. 246 of 1998 and 576 of 1999 decided by Nijjar J. on 10th February 2000. In both these matters, Nijjar J. has taken the view that to the extent the ladies are claiming a share in the property they will be exempt from the requirement of court fees (taking a view similar to the one which I have taken in AIR 1999 Bombay 318) while at the same time charging the court fees from the male litigants.

10. From the above referred different judgments and orders passed by various judges, what emerges is as follows :-

(a) In a suit for specific performance, a learned Judge has taken a view that the court fees would not be payable if the suit is filed by a lady litigant. That judgment has been rendered as back as on 19th September 1995.

(b) In matters of probate petition and similar proceedings also, the lady litigants have been exempted from the requirement of payment of court fees to the extent they are the beneficiaries in the property which has been the view taken by me on 28th April 1999 and the same approach has been continued by another judge (Nijjar J.).

(c) In matters of mental torture, a counter-claim by a lady litigant has been entertained without payment of court fees by an order passed on 19th March 1997.

(d) In a matter of motor accident claim, though invoking provisions of Rule 257(3) of the Maharashtra Motor Vehicles Rules, a learned Judge has taken a view that property will include immovable as well as movable and exempted a lady litigant from payment of court fees by an order passed on 24th October 1997.

(e) In a summary suit, a learned judge has taken a view on 18th February 1998 that court fees would not be payable (though that was also on the footing of the Assistant Government Pleader conceding to that position).

Thus we have judgments covering different facets of property disputes such as suits for specific performance, summary suits, claims to the Motor Accident. Tribunal, claims seeking compensation for mental torture and probate petition and application for succession certificate which have all held women litigants to be exempt from court fees. All these judgments and orders have been given during this intervening period and have remained and are being followed in different courts including this court whenever such controversies are coming before the court. There are two judgments taking a different view. One given by the Appeal Court in a bank suit wherein a lady director sought exemption from court fees. In an appeal filed by her, the Division Bench has taken the view that she would not be eligible to claim exemption from payment of court fees. And in a suit claiming compensation another judge has taken a view that property dispute does not include tortuous liability.

11. Mrs. Shah, learned counsel appearing for one of the interveners, submitted that it has been the policy of the court to avoid reopening of settled issues which is from the point of view of preventing multiplicity of proceedings. She submitted that merely because now a new Notification has come, the matters, which are pending before the Prothonotary under objection, could not be considered under he new Notification. She submitted that all these judgments and orders have been accepted and implemented. That being the position, the Notification now issued ought to be implemented prospectively and by no manner it should be given any retrospective effect. She relied upon a passage from the judgment of the Supreme Court in the case of Baburao v. C.C.Jacob, reported in AIR 1999 SC 1845, which states in paragraph 5 as follows:

"The prospective declaration of law is a device innovated by the apex court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a device adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law, it is deemed that all actions taken contrary to the declaration of law prior to its date of declaration are validated. This is done in the larger public interest. Therefore, the subordinate forums which are legally bound to apply the declaration of law made by this court are also duty-bound to apply such dictum to cases which would arise in future only. In matters where decisions opposed to the said principle have been taken prior to such declaration of law cannot be interfered with on the basis of such declaration of law."

12. Ms. Iyer, learned counsel appearing for another lady litigant, drew my attention to various provisions of the "Policy for Women" announced by the State Government in June 1994 which led to the Notification of 1994. She pointed out that in Chapter II giving the background material, it was stated in clause 2.2 that the approach towards women so far was coloured by the welfare orientation where women were seen as an object of State manificence rather than as participants in the development process. Thereafter it is stated in the policy that it was only in the 1970 that the shift in approach from welfare to development has slowly emerged. She also referred to clause 4.1.1 which states that the strategy of the State now is to give this empowerment for the purposes of devaluation of control over economic infrastructure. She also drew my attention to clause 4.1.4 which provides that when it comes to slum identity cards, housing allotments or land grants, all such grants by the Government hereafter will have to be in the names of husband and wife. Then she drew my attention to the steps taken by the Government in the field of law and mainly clause B.5.1 which refers to the amendment to the Hindu Succession Act with reference to its application to the State of Maharashtra to give coparcenary rights to women. She therefore submitted that the term "property" appearing in clause B.5.B even if one looks at it from the point of view of policy, the same will have to be broadly construed. She submitted that the term "property" will have to be considered as area covering all aspects of property which was also an object manifest in the policy for women.

13. Mr.Grover, learned counsel appearing for one of the interveners - a lady litigant, submitted that the entries in clause B.5.B could not be read only in the context of clause B.4 as was being suggested by the defendant. In his submission, clause B.4 was only one of the facets of the policy. To say that only the disputes with respect to matrimonial properties would be covered, would be denying the benefits to the women litigants who had not been married and who had property disputes. He submitted that there could be some other situations also like a mother filing a proceeding on behalf of herself and her minor son and would be required to pay court fees for the minor son though she would not be required to pay court fees for herself. Apart from relying upon the interpretation given to the adverb "relating to" by Sirpurkar J., Mr.Grover referred me to a judgment of a Division Bench of this Court in Nagin v. Haribhai, reported in AIR 1980 Bombay 123, and particularly paragraph 11 thereof.

"The said S.41 speaks of "all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay". It is significant that the words used in the said S.41 are "suit relating to the recovery of possession" and not "suits for possession". Rule 12 of 0.20 of the Civil P.C., 1908 provides as to how a court is to proceed "where a suit is for the recovery of possession of immovable property and for rent or mesne profits." The contrast between the language used in O.20 R.12 and the said S.41 immediately strikes one. The phrase "relating to the possession of any immovable property" is wider than the phrase "for the recovery of possession of any immovable property". The words "relating to" are intentionally and designedly used in the said S.41 not to confine the section only to a suit for the recovery of possession of immovable property situate in Greater Bombay but also to permit to be included within the ambit of such a suit all other reliefs which the plaintiff can claim in a suit for the recovery of possession of immovable property on the termination of a licence or a tenancy."

14. Mr.Nair, learned counsel appearing for one of the litigants, drew my attention to the facts of his case where a lady employee had given a loan from all her earnings and she was required to file a summary suit to recover that amount since the amount was not being repaid. Similar were the submissions of Ms.Nazareth appearing for other lady litigants who have filed summary suits and who are seeking an exemption under the phrase "property" as raised in the earlier Notification without being influenced by the amending Notification.

15. As stated above, Mr.Halvasia for the defendant, on the other hand, submitted that the intention of the State was only to give benefit to women in distress and the commercial transactions were not sought to be included. He submitted that whatever judgments might have been given by the judges from time to time, what was required was to give a correct interpretation and the explanation given in the new Notification had to be kept in mind. He submitted that otherwise this will be a misuse of a benevolent provision for commercial purposes which was not the intention of the State.

16. Mr.Vahanvati, learned Advocate General, maintained that the intention of the State Government while issuing the earlier Notification was to give the benefit only for the purposes which are mentioned in clause B.4 of the policy for women. Clauses B.4 and B.5.B in the policy read as follows :-

"B.4 The Government will also request the Government of India to (a) review all statutes dealing with women's access to property both at the matrimonial and maternal home and ensure equity to women; and (b) review the working and procedures relating to the family courts.

B.5.B Court fees will be exempt for women litigants in cases relating to (a) Maintenance, (b) Property, (c) Violence and (d) Divorce."

Mr.Vahanvati submitted that the phrase "property disputes" appearing in the Notification of 1st October 1994 could not be utilized for disputes covering business, commerce and trade and the entire clause had to be read ejusdem-generis. In his submission, at all times, as stated by the Under Secretary to the Government in his affidavit, the intention of the State was not to grant benefit to property claims of all types. He submitted that the amending Notification had become necessary "to prevent persons from taking unfair advantage of the concession" and he relied upon that very phrase used by the Apex Court in Union of India v. Paliwal Electrical (P) Ltd., reported in (1996) 3 SCC 407 in para 10 thereof. He also referred me to a judgment of the Constitution Bench in D.N.Banerji v. P.R.Mukherjee, reported in AIR 1953 SC 58 and particularly paragraph 12 thereof to emphasise that the set-up and the context of the provision has also to be looked into and not merely the words used. The relevant quotation reads as follows :-

"It is no doubt true that the meaning should be ascertained only from the words employed in the definitions, but the set-up and context are also relevant for ascertaining what exactly was meant to be conveyed by the terminology employed. As observed by Lord Atkinson in - 'Keats v. Lewis Merthyr Consolidated Collieries Ltd.', (1911) A.C. 641. "In the construction of a statute it is, of course, at all times and under all circumstances permissible to have regard to the state of things existing at the time the statute was passed, and to the evils which as appears from its provisions, it was designed to remedy". If the words are capable of one meaning alone, then it must be adopted. But if they are susceptible of wider import, we have to pay regard to what the statute or the particular piece of legislation had in view. Though the definition may be more or less the same in two different statutes, still the objects to be achieved not only as set out in the preamble but also as gatherable from the antecedent history of the legislation may be widely different. The same words may mean one thing in one context and another in a different context. This is the reason why decisions on the meaning of particular words or collection of words found in other statutes are scarcely of much value when we have to deal with a specific statute of our own; they may be helpful, but cannot be taken as guides or precedents."

17. Having made the above submissions, however, the learned Advocate General was fair enough to accept that, as stated above, a time of over 5 years and 5 months has gone from the initial Notification of 1st October 1994 by the time the amending Notification came to be issued. He was also fair enough to accept that in the meanwhile a number of judgments have been given covering variety of controversies and in some cases on the basis of concession given by the Government Pleaders concerned. He stated that his instructions were that even the pending matters ought to be covered under the amending Notification and that at all material times, the State Government never intended to cover the matters governing commerce, trade and business, yet he would leave it to the court to pass appropriate orders governing the cases which have already come to be filed.

18. There was some controversy with respect to the suits filed by partnership firms where the women alone are the directors. It was canvassed by Mr.Jain that one has to see as to whether the ladies are the partners and if so they ought to be given the exemption under the 1994 Notification in the pending matters. The learned Advocate General as well as Mr.Halvasia opposed this submission, and particularly laid emphasis on the approach adopted by the Division Bench in the unreported judgment and order given in Appeal (Lodging) No.1254 of 1999 (Smt. Suhasini Revankar v. Bank of India) (supra). They emphasised that the Notification talks of giving exemption to "women litigants". A partnership firm which intends to come to the court has to be a registered firm and for a suit to be entertained by a firm it has to be a suit by a registered firm under Section 69(2A) of the Indian Partnership Act. That being the position, a suit by a partnership firm would not get the exemption which is available to women litigants.

19. I have considered the submissions made by the counsel for the women litigants as well as the counsel for the defendants as also by the Advocate General.

(i) As far as the two issues which have been framed by me are concerned, my answer on Issue No.2 will be that the Notification dated 23rd March 2000 will not restrict and/or govern and/or control the exemption granted by the earlier Notification of 1st October 1994 with regard to payment of court fees to women litigants provided those are suits filed by women litigants in their personal capacity. The suits filed by them as directors of companies or as partners of firms will not make them eligible to get the exemption in the pending matters.

(ii) As far as the applicability of the Notification of 1st October 1994 is concerned, which is issue No.1, it will continue to apply to the suits which are already filed and which are pending in this Court though subject to the above, namely that those suits which are filed by women directors of companies or women partners of partnership firms will not make them eligible for exemption under the Notification.

(iii) The answers to these two issues will grant exemption normally to all the women litigants who have filed their suits in this court in their personal capacity and which are pending in objection before the Prothonotary & Senior Master, subject to the exceptions stated above.

(iv) In those cases, where however for reasons to be recorded, the Prothonotary takes the view that the women litigants are required to pay the court fees, that would be subject to a revision as provided under Section 5(2) of the Bombay Court Fees Act, 1959.

(v) This will also not prevent the defendants from raising their objections when the suits are lodged and numbered without payment of court fees. They will be entitled to raise their objections before the concerned judge by filing their written statements as and when the suit is taken up for hearing.

(vi) In matters of probate petition and succession certificate, my brother K.G.Shah,J. in his earlier order has taken the view that the moment a lady litigant files a proceeding, she will not be required to pay the court fees. I have taken a view after referring to the judgment of K.G.Shah, J. that the women beneficiaries will not be required to pay the court fees only to the extent they are getting benefit in the estate. The same view is taken by Nijjar J. in his order of 10th February 2000 but he has specifically differed with the view taken by K.G.Shah, J. The office faces the problem and as far as pending matters are concerned, a query was made to Nijjar J. as to what approach the office should adopt. My brother Nijjar J. kept the decision in abeyance since the present controversy was pending in this court. In view of what is stated above, in my view, it would be appropriate that from the date of the order passed by Nijjar J., i.e. 10th February 2000 effect be given to the view that I have taken as well as the view taken by Nijjar J., viz. that only to the extent women are beneficiaries, court fees will not be required.

(vii) Needless to state that the matters filed on and after 23rd March 2000 will be governed under the Notification of that date.

20. In view of what is stated above, the objection raised in Suit No. 1638 of 1998 is rejected. The summons for judgment taken out in this matter will be taken up for hearing in due course.

21. Notice issued to the Advocate General stands discharged.

22. An ordinary copy of this order duly authenticated by the Personal Secretary of this Court be made available to the parties.

Order accordingly.