ORDER :

1. The present appeal is filed by the appellants being aggrieved with the order dated 21.10.2023, whereby the application filed by the appellants under Order 7 Rule 11 CPC read with Section 151 CPC has been dismissed.

2. Brief facts of the case are that the respondent has filed an application under Section 7 of the Family Court Act, 1984 (for short ‘the Act of 1984’) for recovery of possession and permanent injunction against the appellants claiming that a house situated in the city of Jodhpur, description of which is provided in the plaint, is owned by him, however, the appellants have ill-treated him and his mother and threatened them to implicate in false cases and they forcibly evicted him and his mother from the house in the month of December, 2019 and at present he and his mother are living in a rented accommodation.

3. It is claimed in the application that the appellants may create a charge in the said house by selling the same to someone else by procuring loan on it from the banks or financial institutions, therefore, they may be restrained from doing so and the possession of the house may be given to him.

4. Learned counsel for the respondent has filed written statement along with the counter claim, which is pending consideration before the Family Court No. 2, Jodhpur (for short ‘the Family Court’). During the pendency of the same, the appellants have moved an application under Order 7 Rule 11 CPC read with Section 151 CPC claiming that the respondent has not furnished the court fees as per the provisions of Rajasthan Court Fees and Suits Valuation Act, 1961 (for short ‘the Act of 1961’) and therefore, the application filed by the respondent under Section 7 of the Act of 1984 before the Family Court is liable to be rejected.

5. The said application is contested by the respondent while claiming that he has moved application in relation to the his property under Section 7 of the Act of 1984 and sufficient court fees has already been paid.

6. The learned Family Court, after hearing counsel for the parties, has rejected the said application while placing reliance on the decision of Division Bench of this Court rendered in the case of Smt. Mamta and Others vs. Hari Kishan, 2004 (1) WLC (Raj) 384.

7. Learned counsel for the appellants has submitted that the Family Court has grossly erred in placing reliance Smt. Mamta’s case (supra) because in that case, the question regarding payment of court fees was in relation to an application seeking maintenance and not for permanent injunction and recovery of possession of any property. Learned counsel has further submitted that as per the provisions of the Act of 1961, the respondent is required to pay the court fees after making proper valuation.

8. Heard learned counsel for the appellants and perused the material available on record.

9. It is not in dispute that a matrimonial dispute is going on between the appellants and the respondent. The respondent has approached the Family Court while moving application under Section 7 of the Act of 1984 while claiming that the appellants have forcibly evicted him from the house in question owned by him and now they are trying to dispose it off by transferring to someone else or to create a charge by taking loan through banks or financial institutions. He has also prayed for recovery of possession of his house.

10. For the sake of convenience, Section 7 of the Act of 1984 is reproduced hereunder:

“Jurisdiction:

(1) Subject to the other provisions of this Act, a Family Court shall:

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation.

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation - The sui