Writ Petition No.1215 of 2004

19th April, 2004

Petitioner Counsel: Mr. D. M. SARAF
Respondent Counsel: Mr. N. H. SHAMS

Cases Cited:
Sunni Masjid & Madrassa Trust Vs. Abdul Kadar Usuf Bhabhar, 1979 Mh.L.J. 821 [Para 10]
Bishan Singh Vs. Khaman Singh, AIR 1958 SC 838 [Para 10]

JUDGMENT

JUDGMENT :- Rule.

Rule made returnable forthwith. Heard with the consent of the learned counsel for the parties.

2. By invoking the writ jurisdiction of this Court, this petition is directed against the order dated 27/11/2003 passed by the learned 6th Joint Civil Judge, Junior Division below Exh.41 in Regular Civil Suit No.196 of 2000 whereby the plaintiffs are directed to pay the deficit court fees as per the market value in respect of prayer clause Nos.1 and 3 of the plaint.

3. Mr. Saraf, the learned counsel for the petitioners contended that the plaintiffs have filed the suit for declaration and permanent injunction and valued the same at Rs.600/- and paid the court fees of Rs.60/- as per Section 6(iv)(j) of the Bombay Court Fees Act, 1959 (for short, the Court Fees Act). He contended that the prayer clauses 1 and 2 in the plaint show that basically the suit is simpliciter for declaration and injunction and though the right of preemption in the alternative has been claimed, no possession is sought and in such circumstances, the impugned order passed by the trial Court directing to pay the court fees as per Section 6(iv) of the Court fees Act, is not sustainable-in-law. He contended that the basic dispute is in relation to the common wall and according to the plaintiff this common wall vests in the plaintiffs and the defendant No.1 has no right or the title to the said common wall and since the defendant No.2 wants to demolish the common wall, it would cause great hardship and loss to the plaintiffs, which cannot be compensated in terms of money and as such the plaintiffs sought the relief in prayer clause 1 and 2 for declaration and permanent injunction. He contended that therefore, the suit was valued in accordance with the provisions of Section 6(iv)(j) of the Court Fees Act and the impugned order may kindly be set aside.

4. Mr. Shams, the learned counsel for the respondents-defendants pointed out that the plaintiffs in the plaint itself have stated that there was a partition and separate possession of the shares of the respective parties as per the family settlement made between the parties and the plaintiffs have claimed declaration of their right with respect to the adjacent construction of the house No.365 with the common wall of that house which is running north-south in the co-owner's rights to enjoy and worship the great deity including the common wall or in the alternative for declaration entitling the plaintiffs with their first rights to purchase the same portion from the defendant No.1. Therefore, according to the learned counsel for the defendants, the trial Court was perfectly justified in directing the plaintiffs to pay deficit court fees in view of the provisions of Section 6(vi) of the Court fees Act. He contended that in such circumstances no case has been made out for interference and therefore, the writ petition may kindly be dismissed with costs.

5. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. The prayer clause Nos.1 to 3 are as under :

(1) Declaring that the defendant No.1 has no right, title or any interest with respect to the portion with the portion of common wall of the Corp. House No.364, running North-south in the co-owners rights of the plaintiffs, in Ward No.29, Badkas Chowk, Walker Road, Nagpur including the common wall, to sell in favour of Defendant No.2.

(2) The act of the Defendant No.2 to demolish the southern side adjacent to common wall of the plaintiffs. With his proposed action to demolish the rest, causing disturbances and losses and proposed to cause to sell to the plaintiff is per se illegal, improper and bad in law.

(3) For declaration declaring the plaintiffs right with respect to the adjacent construction of the House No.365, with the common wall of the Corp. House No.365 which is running North South, in co-owners rights to use enjoy and worship the great deity including the common wall or in alternate for declaration entitling the plaintiffs with their first right to purchase the same portion from the Defendant No.1.

6. The genealogical tree which is not disputed can be given as under :

Dajiba Gadkari

Madhav Narayan

Prabhakar (P-1) Yeshwant (P-2) Sunanda (Deft. No.1)

It would clearly reveal that the defendant No.2 Vandana is said to be the purchaser of the property. It is necessary to reproduce Section 6(vi) and (vii) of the Court Fees Act, which reads thus;

(vi) to enforce a right of pre-emption.

In suits to enforce a right of pre-emption according to the value (computed in accordance with paragraph (v) of this section) of the land, house or garden in respect of which the right is claimed;

(vii) for share in joint property.

In suits for partition and separate possession of a share of joint family property or of joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property whether or not the plaintiff is in actual or constructive possession of the property of which he claims to be a co-parcener or co-owner according to the value of the share in respect of which the suit is instituted;

7. However, Section 6(iv)(j) contemplates that; "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 six hundred rupees".

8. Bare perusal of the above provisions, it is obvious that if the right to enforce a right of pre-emption is claimed then the court fees would be payable as per Section 6(vi) of the Court Fees Act and if the suit is simpliciter for declaration & injunction, then the court fees would be payable as if the amount or value of the subject matter was Rs.600/-. In the present case it would clearly reveal that the plaintiffs have claimed the relief that it be declared that the plaintiffs' right with respect to the adjacent construction of the House No.365, with the common wall of the Corporation House No.365 with is running north-south, in co-owners right to use, enjoy and worship the great deity including the common wall or in the alternate for declaration entitling the plaintiffs with their first right to purchase the same portion from the defendant No.1 (Emphasis Added).

9. Reading of the aforesaid prayer clause 3 in the plaint would show that the plaintiffs have in unequivocal terms claimed the declarations of their right to purchase portion of the house and therefore, it is a claim of right of pre-emption. Simply because the possession has not been claimed, it did not follow that court fees would be payable as per Section 6(iv)(j) of the Court Fees Act.

10. The learned counsel for the plaintiffs relied on the Division Bench's decision of this Court in the case of Sunni Masjid & Madrassa Trust & others Vs. Abdul Kadar Usuf Bhabha & another, 1979 Mh.L.J. 821 wherein it has been observed in para 9 that; "Clause (vi) of section 6 of the Act have no application to any suit in which possession is not claimed. This will be clear if this clause is read against the setting and context of the wording of clauses (v) and (vii) while clause (vii) deals with suit for possession on partition. Clause (vi) in fact requires the valuation of the suit for pre-emption to be made according to the value contemplated under clause (v) earlier. This could only be on the hypothesis that the right to possession is implicit in the contemplated suit to enforce the right of pre-emption under clause (vi) of section 6 of the Act." This High Court referred the decision of the Supreme Court in the case of Bishan Singh Vs. Khaman Singh (AIR 1958 SC 838) and observed that the right of pre-emption is not confined to claiming possession alone and any other relief flowing from such right also amounts to enforcing right of pre-emption.

11. In the present case, the plaintiffs have specifically pleaded that there was a partition by way of family settlement and that they sought the declaration declaring the plaintiffs' right with respect to the house No.365 with the common wall of that house which is running north-south in co-owners rights to use, enjoy and worship the great deity including the common wall or in the alternative for declaration entitling the plaintiffs with their first right to purchase the same portion from the coparceners. Thus, it would follow that the declarations sought would amount to claim by co-parceners' right of pre-emption and in such circumstances no fault could be found with the impugned order passed by the trial Court. In the circumstances, this Court is of the considered opinion that there is no merit in this writ petition and hence the same is dismissed with costs.

Petition dismissed.