1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
WRIT PETITION NO. 6225 OF 2007
Khanderao s/o Bhujangrao Babar PETITIONER
VERSUS
Bharatbai w/o Shrimant Gomsale
& others RESPONDENTS
Shri Takte, Advocate holding for Shri V.D. Salunke,
Advocate for the petitioner.
Shri V.M. Yelnoorkar, Advocate for the respondent no.
1.
ig =====
CORAM : R.M. BORDE, J.
RESERVED ON : 30TH JANUARY, 2009.
PRONOUNCED ON : 23RD MARCH, 2009.
PER COURT :
1. Petitioner – original defendant no. 2 is raising
exception to the order passed below exh. 74 in
Regular Civil Appeal no. 20/2004 by the District
judge – 1, Nilanga on 13-9-2007.
2. Respondent no. 1 – original plaintiff instituted
the suit claiming specific performance of agreement
as well as recovery of possession of the land bearing
gat no. 287 and 297 situate at village Jajnoor, Tq.
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Nilanga being Special Civil Suit no. 181/98.
Plaintiff in the suit also claimed relief to the
effect that the registered sale-deeds bearing nos.
1508 and 1509 executed on 15-9-1997 be adjudged as
ineffective and inoperative against the plaintiff.
Plaintiff stated in the plaint that the property in
dispute has been subsequently transferred by original
defendant no. 1 in favour of other defendants.
Apart from claiming relief in respect of specific
performance of agreement, the plaintiff has also
sought for possession of the disputed property as
well as
sought declaration
sale-deeds be declared as ineffective and inoperative
that the subsequent
as against the plaintiff. Plaintiff being a lady, as
per the policy of the State Government in respect of
remittance of court fees by a lady litigant,
prevailing at the relevant time, the plaintiff was
not required to pay court fees. However, after
proper contest the suit presented by the plaintiff
came to be dismissed. As such, she was required to
file Regular Civil Appeal no. 20/2004 before the
Court of Additional District Judge, Nilanga, which is
pending. In the pending suit, original defendant no.
2 presented an application at exh. 72 raising
objection in respect of payment of court fees by the
original plaintiff. It was contended that by virtue
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of subsequent notification dt. 23-3-2000, the
plaintiff is liable to pay the court fees alongwith
appeal as the dispute in question does not relate to
matrimonial matters as contemplated by the amended
notification. Another application was presented by
the plaintiff at exh. 73 claiming exemption in
respect of payment of court fees. Both the
applications came to be decided by the appellate
court on 21-7-2007. Application presented by
defendant no. 2 / petitioner herein was allowed and
the application tendered by original plaintiff came
to
appellate
be dismissed. In view of the order passed by the
court on 21-7-2007, plaintiff was required
to pay court fees on the suit claim. Plaintiff,
however, presented an application exh. 74 claiming
revision in respect of payment of court fees. It is
contended in the application by plaintiff that the
suit presented by her is essentially for specific
performance of agreement as well as for recovery of
possession. Although the relief claimed is in
respect of declaration of the sale-deeds which have
been executed after entering into impugned
transaction with the plaintiff, the plaintiff need
not pay ad valorem court fees and the court fees that
would be required to be computed shall be in
accordance with the provisions of section 6(j) and
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not as per provisions of section 6(ha). Plaintiff as
such stated that she would be liable to pay court
fees to the tune of Rs.6,978/- and necessary
modification in the earlier order was sought for by
the plaintiff.
3. Application tendered by plaintiff was objected by
the respondents herein contending that the total
court fees that would be leviable considering the
claim raised by the plaintiff would be Rs.16,580/-.
It is also contended that the subject matter of the
appeal would
jurisdiction
ig exceed
of the
the pecuniary
court
limits
which is
of the
upto
Rs.2,00,000/-. Hence, the first appellate court does
not have jurisdiction to decide the appeal. It is
also prayed to dismiss the appeal for want of payment
of requisite court fees. The learned District Judge
– 1, Nilanga after hearing the arguments advanced by
respective counsel allowed the application presented
by plaintiff / respondent no. 1 herein and directed
the original plaintiff / appellant before the first
appellate court to pay court fees considering the
valuation of the appeal to be Rs.1,52,000/- as well
as further court fees in respect of relief of
possession. Order passed by the District Judge -1,
Nilanga in pending appeal is subjected to challenge
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in this petition.
4. I have perused the applications as well as order
passed by the first appellate court. I have also
heard arguments advanced by respective counsel. So
far as issue in respect of exemption in payment of
court fees at appellate stage is concerned, the said
issue is not raised by respondent no. 1 / original
plaintiff before me. Therefore, I do not deem it
necessary to consider the issue. Although at the
time of presentation of the suit bearing Special
Civil
then, the
Suit no.
plaintiff
181/98, as per the policy prevailing
was entitled for securing
exemption in respect of payment of court fees. The
policy has undergone change and in view of subsequent
notification issued by the State Government,
exemption in respect of payment of court fees payable
by the woman litigant is restricted to matrimonial
dispute. Although an analogy can be drawn on the
footings that appeal is continuation of the suit and
exemption which is available at the time of
presentation of the suit can also be said to be
available at the appellate stage, however, as the
relevant orders passed by the appellate court in that
regard are not subjected to challenge in this
petition, therefore, this court refrains to go into
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the issue and offer any comment in that regard.
5. On perusal of the plaint it appears that the
substantive relief claimed by the plaintiff is in
respect of specific performance of agreement.
Contents of the plaint reveal that the total
consideration in respect of transaction was settled
at Rs.1,50,000/- out of which the plaintiff has
tendered an amount of Rs.40,000/- and the balance
amount of Rs.1,10,000/- was to be paid at the time of
execution of the sale-deed. Thus, he suit is valued
court fees.
for Rs.1,50,000/- for the purpose of jurisdiction and
Although the plaintiff has sought relief
in respect of declaration that the sale-deeds
executed on 15-5-1997 be declared ineffective and
inoperative as against the rights of the plaintiff,
the said relief claimed is ancillary. Although it is
contended by the petitioner herein that the plaintiff
shall be required to pay ad valorem court fees
considering the valuation of the subsequent
transactions to be Rs.1,22,000/- and Rs.55,000/-
respectively, said contention cannot be accepted.
The plaintiff in turn claims that the provisions of
section 6(j) are attracted and therefore, court fees
is required to be computed accordingly. Provisions
of sections 6(j) and 6(ha) are quoted as below :-
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6. The amount of fee payable
under this Act in the suits next
hereinafter mentioned shall be
computed as follows :-
(j) In suits where declaration is
sought, with or without injunction
or other consequential relief andthe 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 theamount or value of the subject
matter was [one thousand rupees;]). In all suits under clauses (a)
to (i), the plaintiff shall state
the amount at which he values therelief sought, with the reasons
for the valuation ;
(ha) In suits for declaration that
any sale, for contract for sale ortermination of contract for sale,
of any moveable or immoveable
property is void [one-half] of ad
valorem fee leviable on the value
of the property;
. It cannot be said that the subject matter in
dispute is not suceptible of monetary evaluation and
as such, the provisions of section 6(j) of the Act
would not apply. Contention of the petitioner /
original defendant no. 2 is that as the suit is in
respect of declaration of sale transaction being void,
the plaintiff is required to pay half of the ad
valorem fees leviable on the valuation of property.
However, in the instant matter, it is to be taken note
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of that the main relief claimed in the plaint is in
respect of specific performance of agreement. In a
suit presented by plaintiff claiming specific
performance of agreement, it is essentially a claim
between the vendor and vendee and the subsequent
transferee is required to be impleaded only for the
purpose of issuing direction to him to join the vendor
in executing the registered document. It is not
essential for the plaintiff to claim declaration in
respect of subsequent transactions in a suit for
specific performance of agreement.
6.
Section 19(a) of the Specific Relief act provides
that the specific performance of the contract may be
enforced against either party thereto whereas under
section 19(b) relief can be sought against any other
person claiming under him by a title arising
subsequently to the contract, except a transferee for
value who has paid his money in good faith and without
notice of the original contract. In the instant
matter the subsequent purchasers are joined as party
defendants for securing relief in respect of specific
performance. It is laid down by the Apex court in the
matter of Durga Prasad and another vs. Deep Chand and
others reported in AIR 1954 SC 75 that while
interpreting the provisions of section 27 of the Old
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Act (Act of 1877) which is comparable with the
provisions of section 19 of the Act of 1963 to the
effect that the proper form of decree to be passed is
to direct specific performance of contract between the
vendor and transferee and direct the subsequent
transferee to join in the conveyance so as to pass on
the title which resides in him to the proper
transferee. He does not join in any special covenants
made between the prior transferee. The view expressed
by the Apex court has been re-affirmed in the matter
of Ramesh Chandra Chandiok vs. Chuni Lal Sabharwal
reported
matter,
in AIR 1971 SC 1238. In this view
subsequent purchaser is required to be joined
of the
as party to the suit only for the purpose of directing
him to join the vendor in executing the sale-deed as
per the directions of the court in favour of the
vendee.
7. Reliance can also be placed on a judgment reported
in 2001(3) Mh.L.J. 730 in the matter of Dilip
Bastimal Jain vs. Baban Bhanudas Kamble. This court
in similar set of facts as in the instant petition has
considered the issue. Petitioner in the reported
matter has approached the court raising objection to
the valuation of the suit on the similar grounds to
the effect that although the consideration amount in
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respect of subsequent sale in the matter is more than
Rs.2,00,000/- which is beyond pecuniary jurisdiction
of the trial court to entertain the suit, the court
has asserted jurisdiction. The reported matter arises
out of a suit claiming specific performance of
contract. Consideration prescribed was Rs.90,000/-
whereas properties in dispute were subsequently
transferred for consideration of Rs.4,80,000/- and
Rs.2,11,000/- respectively. In a suit presented
against the vendor, the subsequent transferees were
arrayed as co-defendants who raise objection to the
jurisdiction
valuation
ig of
of
the
the court as well as in
suit. It was contended
respect
by
of
the
subsequent purchasers in the reported matter that the
property in dispute has been purchased by them for
amount more than Rs.4,00,000/- and Rs.2,00,000/-
respectively and further that there is declaration
sought for in respect of sale transaction effected in
favour of co-defendants and as such, plaintiff shall
be required to pay the court fees considering the
subsequent sales as well as suit claim is also
objected on the ground that the court dealing with the
matter does not have pecuniary jurisdiction to
entertain the suit. While dealing with the objection,
the learned Single Judge of this court expressed
opinion that in accordance with provisions of section
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19(b) of the Specific Relief Act, subsequent
transferee is impleaded to the suit only for the
purpose of issuing direction against him for his
joining with the transferor for the purpose of
execution of a conveyance so that valid title can pass
in favour of plaintiff in the event of passing of
decree in his favour. Although declaratory relief is
claimed it is merely superficial and no court fees is
required to be paid on such claim. The learned Single
Judge has observed in paragraph no. 14 of the
judgment thus :-
14.
igThe learned Counsel appearing
for the petitioner tried to urge that
it was essential for the plaintiff toclaim a declaration of invalidity in
favour of the subsequent transferees.
Said argument has no substance. At
this juncture, it is necessary to
notice clause (b) of sub-section (1)
of section 19 of the Specific ReliefAct which starts with the following
words –
“19(1) Except as otherwise provided
by this Chapter, specific performance
of a contract may be enforced
against-
(b) any other person claiming under
him by a title……..”
. The section speaks of the
enforcement only. It does not speak
in terms of a decree being claimedagainst such persons. As I have
already pointed out hereinabove, that
it is an established law that for
enforcing the decree, all that is
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12as a party and the decree is required
to direct such person to be a party
to conveyance to be executed by the
original vendor in favour of the
vendee. It will have, therefore, to
be held that there was no necessityof claiming any declaratory relief as
against the defendant no. 6 (present
petitioner) and defendant nos. 13and 14. Consequently, there was no
question of payment of court fees in
respect of said relief. The said
relief claimed was superficial and
unnecessary in the facts andcircumstances of the present case.
8. Taking into consideration the ratio laid down by
this court in the matter cited supra, in the instant
matter also it can be said that joining of
co-defendant
ig / subsequent purchaser to the suit is
merely for securing relief of specific performance as
contemplated by section 19(b) of the Specific Relief
Act. Although the declaratory relief is claimed
against the subsequent purchasers the said claim is
superficial and no court fees is required to be paid
in that regard. Objection raised by petitioner herein
therefore does not call for any consideration. As
stated above, neither the provisions of section 6(ha)
nor provisions of section (j) of the Bombay Court Fees
Act are attracted in the instant matter and therefore,
no court fees is required to be paid in respect of
declaratory relief sought for by the plaintiff. The
objection raised that considering the contentions
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raised in the plaint, the suit would be thrown out of
pecuniary jurisdiction available to the appellate
court for entertaining an appeal, is also required to
be turned down. Valuation of the suit in a matters
wherein claim of specific performance of agreement is
raised shall be the amount of consideration which is
agreed upon by the parties to the agreement. The suit
must be held to be rightly valued under section 6(xi)
of the Act treating it as falling under Article 7
Schedule 1 of the Bombay Court fees Act. I do not
find any substance in the objection raised by the
petitioner
the petition
ig and, in view of the reasons set out above,
does not call for any interference in
exercise of extra ordinary jurisdiction under Article
227 of the Constitution of India. Writ petition
therefore stands rejected summarily.
9. Pending civil application, if any, stands disposed
of.
( R.M. BORDE, J.)
dyb/uniplex/wp6225.07
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