2010(4) ALL MR 912
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

S.B. DESHMUKH, J.

Smt. Savitrabai Wd/O. Sureshchandra Khatod Vs. Kokilabai Wd/O. Nandlalji Chichani & Ors.

Writ Petition No.6632 of 2009,Writ Petition No.6633 of 2009

11th February, 2010

Petitioner Counsel: Mr. P. N. KALANI
Respondent Counsel: Mr. A. S. BAJAJ

Interpretation of Statutes - Precedents - Procedural value of judgment is a matter of great concern - Judgment is a decision on the facts brought before the Court - Judgment of higher Courts cannot be read as statute. 2008(4) ALL MR 306 and 2007(3) ALL MR 30 - Ref. to. (Para 6)

Cases Cited:
Girish Kanaiyalal Munshi, 2008(4) ALL MR 306 [Para 6]
Shahaja Begum Mohammad Ali Vs. Mohammad Shaukat Mohammad Sharif, 2007(3) ALL MR 30=2007(4) Mh.L.J. 439 [Para 6]


JUDGMENT

JUDGMENT :- Heard learned counsel for the Petitioner in both the writ petitions. It is made clear that other parties are not before this Court since I am hearing this matter at the stage of admission. Advocate for the Petitioners and Advocate Mr. A. S. Bajaj, who appears for Respondent Nos.19 and 31 in both the petitions [defendant Nos.18 and 30 in the trial Court]. Both the learned counsel took me to the copy of the plaint which is on record in both the writ petitions. It is Special Civil Suit No.92 of 2008 filed in the Court of learned Civil Judge, Senior Division, at Aurangabad. Name of the plaintiff appears to be Smt. Savitrabai Wd/o. Sureshchandra Khatod. Mr. Bajaj for the respective respondents took me to para No.1 of the plaint. A statement is made that the plaintiff married with Sureshchandra on 5th May, 1969. The couple is blessed with a son and two daughters. Husband of the plaintiff died on 17th November, 1993. It is also pleaded that two daughters of the plaintiff Renuka and Rajeshri who are defendant Nos.4 and 5 in the suit, are married long time back. Son of the plaintiff namely Nikhil is residing with plaintiff and his date of birth is 18th June, 1990. Mr. Bajaj, with this, took me to para No.15. He points out the share claimed by the plaintiff, after demise of her husband Sureshchandra as 1'6th. With this, he took me to prayer clause 23. A. and prayer clause 23 C. 2. This prayer seeks rendition of account of firm M/s. Chunnilal Asaram and Company (Petrol Department). For pointing out these two prayers, submission is that the share claimed by the plaintiff is incorrect, illegal. It is not the simplicitor suit for partition of joint family property i.e. immoveable property either agricultural land or other type of property. Another object is that plaintiff is not claiming relief considering her own status and the status of the defendants in the suit.

2. Counsel for the Petitioner points out page 50 Exhibit-B/application for exemption filed in the Special Civil Suit on 6th March, 2008. On this application, there appears to be an order passed by the learned Judge as "Allowed". Date seems to be 6th of March, 2008. Counsel for the Petitioner raised a grievance that on the date of filing of the suit and application Exhibit-B plaintiff was permitted to get the suit registered by obtaining exemption from the payment of court fees and that is how the suit was registered in the trial Court as Special Civil Suit No.92 of 2008. He also points out that there is no written statement filed on behalf of the defendants, despite the fact, according to him, all are served, in the trial Court. Application Exhibit-36, Annexure-C to the petition, came to be filed in the trial Court on 12th June, 2009. From the copy, it appears that the said application is filed by defendant Nos.18 and 30 under Order 7, Rule 11 of the Code of Civil Procedure [the Code, for short]. Prayer made is "direct the plaintiff to pay full ad valorem Court fees of Rs.3,00,000/- and on failure of the plaintiff to comply the same, reject the suit. According to learned counsel for the Petitioner, reply was filed by the plaintiff on 23rd June, 2009. In this reply, plaintiff has raised a ground that the plaintiff is already exempted from payment of court fees by the earlier order. It is a matrimonial dispute arising out of the matrimonial relations covered by the notification issued by the State Government. Application filed at Exhibit-36 is not maintainable in view of the fact that the defendants have not challenged order dated 6th March, 2008 below Exhibit-8. Counsel for the Petitioner also points out another application filed by the defendant Nos.18 and 30 Annexure-5 A to this petition. This application is filed on 30th June, 2009.

3. Mr. Bajaj, learned counsel for the Respondent Nos.19 and 31, per contra to the submissions of the learned counsel for the petitioner, points out prayer made in Application Exhibit-37, Annexure-E. It is two fold prayer. Exhibit-37 and order passed below Exhibit-8 may kindly be re-considered and plaintiff be directed to pay the full ad-valorem court fees of Rs.3 Lacs. This application is also titled under Order 7, Rule 11 of the Code.

4. Application Exhibit-36, Annexure-C to the petition is titled as under Order 7, Rule 11 of the Civil Procedure Code, filed on 12th June, 2009. Prayer made reads "the plaintiff may kindly be directed to pay the full ad-valorem Court fees of Rs.3,00,000/- and on failure, reject the plaint with costs". Application Exhibit-37 filed on 30th June, 2009, makes a prayer for re-consideration of the order below Exhibit-8 and further direct the plaintiff to make the payment of Rs.3 Lacs.

5. I have given anxious consideration to the submissions of the learned counsel for the Petitioner. Fallacy of the argument on behalf of defendant Nos.18 and 30 is noticeable. Admittedly exemption was granted in favour of the plaintiff on 6th March, 2008 by passing an order below Exhibit-8 in the suit. As pointed out by learned counsel for the petitioner, when the first application Exhibit-36 was filed on 12th June, 2008, there was no such prayer seeking quashment of the order dated 6th March, 2008 neither bleak reference for re-consideration of the said order. Plaintiff, who has filed reply to that application, pointing such exemption, which is already on the record, and which will have to be within the knowledge of the defendants, since they are appearing, was not challenged, neither application was filed. Probably, after reading this reply filed by the plaintiff, on 30th June, 2008, around 18 days, after filing of the first application, another application is filed by defendant Nos.18 and 30 on 30th June, 2009, now, with some intelligence, still not in accordance with the procedure laid down under the Code. Now the improvement is that re-consider the order dated 6th March, 2008.

6. Mr. Bajaj supports the order passed by the learned trial Court. He read para 10. He also relies on a judgment of learned Division Bench of this Court in the matter of "Girish Kanaiyalal Munshi (Deceased)" reported in 2008(4) ALL MR 306. It appears that question was referred to the learned Division Bench by the Honourable Chief Justice in view of the expression of conflicting opinion by the learned Single Benches of this Court. I am not referring this judgment neither I am referring the judgment cited by learned counsel for the Petitioner in the matter of "Shahaja Begum Mohammad Ali Vs. Mohammad Shaukat Mohammad Sharif" reported in 2007(4) Mh.L.J. 439 : [2007(3) ALL MR 30]. Precedential value of the judgment is a matter of great concern. Judgment is a decision on the facts brought before the Court. Judgment of higher Courts cannot be read as statute.

7. What I find from the case on record that learned Judge of the trial Court was influenced by the submission that order dated 6th March, 2009 is a mistake committed by the learned Judge and mistake committed by the Court can be corrected by the Court. Grant of exemption is a matter of notification issued by the State of Maharashtra under section 46. Learned Judge did not refer to the facts of the case. There is no finding as to why the learned Judge is allowing the application Exhibits-36 and 37. Para 10 of the judgment refers the discussion in earlier paragraphs but then in para 10 of the judgment learned trial Court has observed "In the light of above discussion, facts and circumstances and respectfully, considering the ratios laid down in the above cases I am in the opinion that the earlier order passed below Ex.8 while allowing the application for exemption is hereby set aside and it will be just and proper to direct the plaintiff to pay court fees correctly". There is no discussion in the entire order passed by the learned Judge how the plaintiff is not entitled for seeking exemption, why was the earlier order was reconsidered by him, why the learned Judge arrived at a conclusion that plaintiff requires to be directed to deposit Rs.3 Lacs and so on. In substance, order passed by the trial Court seems to be without application of mind and perverse. By invoking extra-ordinary jurisdiction, this order requires to be quashed and set aside.

8. One more facet of the matter, I am placing on record. Both the applications are titled as application under Order 7, Rule 11. Nowhere, the learned Judge has even referred to Order 7, Rule 11 of the Code. There are varied contingencies provided and listed as Order 7, Rules 11 (a) to (f). It is essential to note, neither of the contingency is being referred by the learned Judge. This order impugned shows that there is no reference to Order 7, Rule 11, nor the finding on the point of exemption claimed by the plaintiff in application Exhibit-8 with allegation that it is a suit for recovery of separate possession by way of partition in respect of matrimonial property arising out of matrimonial dispute against the father in law and other persons of matrimonial side.

9. Writ petitions are allowed. Orders impugned in both the writ petitions, are quashed and set aside. Both the applications Exhibits-36 and 37, are remitted back to the learned trial Court. Learned Judge shall hear and decide the said applications in accordance with the provisions of law and obviously after giving opportunity of being heard to the parties. It is made clear that this Court has not opined on the contentions agitated before this Court by the learned counsel for the parties. Both the applications to be decided afresh in accordance with the provisions of law.

10. At this stage, grievance is raised by the learned counsel for the Petitioner that in the suit applications seeking temporary injunction against the defendants from alienating the suit property below Exhibit-5 and application seeking interim maintenance Exhibit-9 are filed on the date of filing of the suit, on 6th March, 2008. There are no orders passed. Mr. Bajaj counsel for the Respondent submits that he has no instructions. Learned Judge is directed to decide the applications Exhibits-5 and 9 if already not decided, within a period of 30 days in view of the mandate of Order 39, Rule 2 of the Code. Petitioner and Respondent Nos.19 and 31 are directed to remain present before the trial Court on 22nd February, 2010 when the suit is to come up before the trial Court. Learned Judge shall hear the application Exhibits-5 and 9 in accordance with the provisions of law. It is made clear that he shall give opportunity of being heard to all the concerned even if other defendants are not present before this Court today.

11. In view of this order, civil application No.148 of 2010, 1667 of 2010 (both the Writ Petition No.6632 of 2009) and Civil Application No.147 of 2010 in Writ Petition No.6633 of 2009 stand disposed of.

12. Registrar (Judicial) shall transmit copy of this order to the learned Court concerned by the fastest mode of communication.

Ordered accordingly.