Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Bom) 1694

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
ARUN R. PEDNEKER, J.
Sainath S/o Dagadu Jadhav – Appellant
Versus
Shri Shankar S/o Anna Jadhav – Respondent
CRA No.181 of 2010
Decided on : 14-10-2022

Advocates:
Advocate Appeared:
For the Appellant : Mr. Sapkal V. D.
For the Respondent: Lex Aquila (Ms.M.D.Thube-Mhase)

The main legal point established in the judgment is the validity of reusing cancelled court fees stamps when a counter-claim is excluded for want of pecuniary jurisdiction and filed as a special civil suit before the Court of competent jurisdiction, as well as the applicability of Section 15 of the Court Fees Act and the provisions of the Civil Manual.

Headnote:
Court Fees Act - Reuse of Court Fees Stamps - Sections 15, 42 of the Bombay Court-fees Act - Summary: The court considered the provisions of the Court Fees Act and the Civil Manual to determine the validity of reusing cancelled court fees stamps. It held that when a counter-claim is excluded for want of pecuniary jurisdiction and returned along with cancelled stamps and filed as a special civil suit before the Court of competent jurisdiction, the party need not pray for a refund of court fees and can reuse the cancelled stamps. However, if the excluded counter-claim is not to be presented as a suit before the Court of competent jurisdiction or an entirely new suit with different prayers is to be filed, the party can apply for a refund of court fees under Section 15 of the Court Fees Act. The court also noted that there is no provision in the Court Fees Act that the stamps have to be used within six months, although such a provision exists in the Maharashtra Stamp Act. The court directed that the Special Civil Suit No.142 of 2009 be decided within six months from the date of receipt of the order.
Fact of the Case:

The applicant filed a civil suit for injunction, and the respondent filed a counterclaim seeking specific performance of an agreement. The counterclaim was excluded for want of pecuniary jurisdiction, and the respondent filed a special civil suit using the cancelled stamps from the counterclaim. The applicant challenged the validity of reusing the stamps under Order VII Rule 11 of the Code of Civil Procedure.
Finding of the Court:

The court held that the party need not pray for a refund of court fees and can reuse the cancelled stamps when the excluded counter-claim is filed as a special civil suit before the Court of competent jurisdiction. However, if the excluded counter-claim is not to be presented as a suit before the Court of competent jurisdiction or an entirely new suit with different prayers is to be filed, the party can apply for a refund of court fees under Section 15 of the Court Fees Act. The court also directed that the Special Civil Suit No.142 of 2009 be decided within six months from the date of receipt of the order.
Issues: Validity of reusing cancelled court fees stamps, interpretation of Section 15 of the Court Fees Act, applicability of the Civil Manual provisions, and the time limit for using court fees stamps.
Ratio Decidendi: The court clarified that when a counter-claim is excluded for want of pecuniary jurisdiction and returned along with cancelled stamps and filed as a special civil suit before the Court of competent jurisdiction, the party need not pray for a refund of court fees and can reuse the cancelled stamps. However, if the excluded counter-claim is not to be presented as a suit before the Court of competent jurisdiction or an entirely new suit with different prayers is to be filed, the party can apply for a refund of court fees under Section 15 of the Court Fees Act. The court also noted that there is no provision in the Court Fees Act that the stamps have to be used within six months, although such a provision exists in the Maharashtra Stamp Act.
Final Decision: The present Civil Revision Application was dismissed, and the court directed that the Special Civil Suit No.142 of 2009 be decided within a period of six months from the date of receipt of the order.

JUDGMENT :

1. The applicant is challenging the order passed by the Joint Civil Judge Senior Division, Aurangabad, in Special Civil Suit No.142 of 2009, thereby the learned Court was pleased to dismiss the application under Order VII Rule 11 of the Code of Civil Procedure filed by the applicant herein.

2. Heard learned Advocate Mr. V. D. Sapkal for applicant and learned Advocate Ms. M. D. Thube-Mhase for respondent.

3. The brief facts which lead to the filing of the application under Order VII Rule 11 of the Code of Civil Procedure can be summarized as under :-

The applicant filed a Regular civil Suit No.731 of 2007 for injunction restraining the respondent herein from interfering with the suit property which is an agricultural land in Gut No.92 admeasuring 5 H 75 R to the extent of 3 H 38 R situated at village Shankarpurwadi, Taluka Khultabad, District Aurangabad. The respondent filed a counterclaim in the said suit seeking a relief of specific performance of an agreement to sell the part of suit land to the extent of 3 Acres on the basis of an agreement to sell dated 06/09/2003, executed between the parties. The applicant took objection to the counter claim as being beyond the pecuniary jurisdiction of the Trial Court and the competence of the Court to hear the counterclaim. On account of the objection raised by the plaintiff, the said counter claim was excluded and the Trial Court was pleased to pass following order :-

“1. Application is allowed.

2. The counter claim along with application of temporary injunction of the defendant, is excluded.

3. The defendant is directed to take proper steps in respect of filing suit before proper Court.

4. Both the parties shall bear their own cost.”

4. The respondent thereafter applied for withdrawal of the counter claim and return of court fees. The Trial Court passed following order on the said application for withdrawal of counter claim :-

“As counter claim excluded vide order Exh.25, whole court fee of counter claim be refunded as per rules.”

5. The respondent, thereafter, took back the entire file containing the counter claim along with the cancelled stamps and presented the same before the Senior Division Court and the same was registered as Special Civil Suit No.142 of 2009.

6. When the Special Civil suit proceeded for evidence, an application was filed by the present applicant for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure. It was the contention of the applicant herein before the Civil Judge Senior Division, Aurangabad that the stamp once purchased has to be used within six months and also the stamp having been used in filing the counter claim, the same could have not been utilized in filing the Special Civil Suit No.142 of 2009.

7. The learned Civil Court rejected the application of the applicant by holding as under :-

“On going through the provisions of the Stamp Act it says that, stamps are to be used within six months from the date of its purchase. In the instant case, the stamps were purchased on 29.09.2007 and the counter claim was presented in R.C.S.No. 731/09. Thereafter the court fees stamps were returned to the present plaintiff Shankar and he has filed this suit. There is no averments in the written statement regarding re-use of the court fees stamp beyond period of limitation. In my view, the use and reuse in the present case will have to be interpreted. Because, the court fee stamps were already used by the present plaintiff Shankar within six months from the date of its purchase. As soon as the court fee stamps were returned to the present plaintiff Shankar, present suit has been filed. In my view, the court fee stamps are reused and not used. On going through the provisions of Bombay Stamp Act and Bombay Court Fees Act I do not find any provision regarding reusing of the stamps. As stated above it is well settled principle that a person cannot take advantage of his own wrong. When Sainath has took objection to the counter claim of Shankar in