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2011 Supreme(Bom) 455
2011(4) ALLMR 111
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE R.M. SAVANT
Smt Subai Mura Rabari
Versus
Paras Devraj Gundecha & Others
NOTICE OF MOTION NO.1910 OF 2006 IN SUIT NO.3724 OF 1996
Decided on: 19-04-2011
For the Plaintiff: P.L. Mahadik, show cause.
For the Defendants:D1 to D6 & D9, Chetan Kapadia and Mr. Dinesh Shah with Mr. M.L.Kukreja i/b Lilani Shah & Co., Advocates.
Headnote:Bombay Court-Fees Act, 1959 - Section 46-Notifications dated 1.10.1994 and 23.3.2000-Court-fee-Exemption from payment of-Cases regarding maintenance, property dispute etc. by woman litigants-Property disputes-Restricted to arising out of matrimonial matters-Suit challenging consent terms and all agreement in respect to suit property -Not connected to matters pertaining to matrimony-Not covered by Explanation in Notification dated 25.3.2000-Plaintiff not entitled to exemption from payment of court-fees.-In so far as the instant matter is concerned, clause (A)(c) and (d) and clause (B)(a) are relevant. What can be culled out from clauses (c) and (d) is that the terms "property disputes" would be restricted to those concerning or arising out of the matrimonial matters and would hence exclude petitions for probate of Wills. By clauses (B)(a) what has been laid down is that interpreting the words "property disputes" by giving an extended meaning would tantamount to indulgence in exercise of legislation in the garb of interpretation. Hence, the Division Bench in terms has laid down that the property disputes would be restricted only those concerning or arising out of matrimonial matters.
In the instant case as mentioned herein above, the plaintiff has filed the suit challenging the consent terms and for setting aide all the agreements. They cannot by any stretch of imagination be said to be connected to matters pertaining to matrimony.
The plaintiff is not entitled to exemption from payment of court-fees. The Notice of Motion would therefore, have to be allowed and is accordingly allowed in terms of prayer clauses (a) and (b). However, the same would come into force after a period of 8 weeks within which the plaintiff is directed to pay the court-fees which she is liable to pay on the basis of the subject-matter of the suit and its valuation.
P.C.
1. The above Notice of Motion has been filed by the Defendant Nos.1 to 4 and 6 to 9 inter alia claiming the following reliefs:
(a) That this Hon’ble Court be pleased to reject the plaint in Suit No.3724 of 1996 for want of payment of Court fees.
(b) That pending the hearing and final disposal of the present Notice of Motion all the proceedings in the above suit No.3724 of 1996 be stayed.
2. In the context of the reliefs sought as above it would be apposite to consider the gamut of the above Suit. The above suit has been filed by the Plaintiffs claiming the substantive reliefs as mentioned in prayer clauses (a) and (b). The said prayer clause (a) and (b) are reproduced herein under :
“(a) That this Hon’ble Court be pleased to declare that the Defendant Nos.1 to 9 have no right title and/or interest in the suit property i.e. land bearing Survey No.148 Hissa No.part CTS 168, admeasuring 60 Acres, 23.3/4 Gunthas as more particularly mentioned in Schedule ‘A’ annexed to the plaint;
(b) That all the consent-terms/decree obtained by Defendants 1 to 9 as detailed in Exhibit ‘O’ as well as all the purported agreements between defendants interse as enlisted in Exhibit “O” hereto to the Plaint in respect of suit property i.e. land bearing Survey No. 148 Hissa No.Part CTS 168 lying, being and situated at Village Megathane, Taluka Borivali, Mumbai suburban District as described in schedule Exhibit ‘A’ be declared as null and void, illegal, not binding upon Plaintiff and same be set aside.”
3. As can be seen from the aforesaid prayer clauses, the Plaintiff seeks to challenge the consent terms / decree which is in favour of the Defendant Nos.1 to 9 in terms of Exhibit-O as well as the agreements between the Defendants interse in terms of Exhibit O to the Plaint in respect of the suit property. The Plaintiff claims that she along with her husband Mura Sura Rubai, whose whereabouts are not known for more than 18 years and who is presumed to be dead, used to cultivate the land bearing Survey No.148 (part) CTS No.168 admeasuring 60 acres 23.3/4 gunthas situate at Village Magathane, Taluka Borivili, Mumbai. The Plaintiff claims that she is a declared owner of the suit property by virtue of the order under Section 32(G) of the Bombay Tenancy and Agricultural Lands Act 1949 and that the certificate have been issued to her under Section 32(M), after she paid the purchase price. The suit though filed in the year 1996, has not progressed. In fact the issues in the suit have also not been framed.
4. In the Affidavit in support of the above Notice of Motion, the Defendants have placed reliance on the Notifications dated 1-10-1994 and 23-3-2000 issued by the State Government. The said Notifications have been issued by the State Government in exercise of powers conferred by Section 46 of the Bombay Court Fees Act, 1959. By the said Notifications, the Government of Maharashtra remitted the fees payable by Women Litigants on any of the plaint, 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. The relevant extract of the said Notification is reproduced herein under:
“Now, therefore, in exercise of the powers conferred by Section 46 of the Bombay Court Fees Act, 1959 (Bo,. 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.”
Thereafter, by Notification dated 23-3-2000, the said Notification dated 1-10-1994 came to be amended in as much as an explanation came to be added to the said Notification dated 1-10-1994. By the said explanation the expression of the
