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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

LETTERS PATENT APPEAL STAMP NO. 32041 OF 2011

IN

WRIT PETITION NO. 4959 OF 2011

Zahrunnisa Begum W/o. Bashir Ahmed.

..Appellant.

Versus

Abdul Hakim S/o Abdul Jalil & Others.

.. Respondents.

....

Mr. P.N.Kalani and Mr. D.V. Katneshwarkar, Advocate for

Appellant;

Mr. H.I. Pathan, Advocate for Respondent No.1.

....

CORAM : R.M.BORDE AND P.R.BORA, JJ.

Date : 07th July, 2015

...

Per Court:-

1)

Order passed by the learned Single Judge in Writ

Petition No.4959/2011 on 21st October, 2011 is questioned in the

present Appeal. The order dated 28.04.2011 passed by the 2nd

Joint Civil Judge, Senior Division, Parbhani in Special Civil Suit No.

7/2010 was assailed in the aforesaid Writ Petition. The question

before the Civil court was whether the plaintiff in the aforesaid

Special Civil Suit No.7/2010 i.e. present Appellant being a woman

litigant, is exempted from the payment of court fees as per

Maharashtra Government Notification dated 1st October, 1994. The

learned Civil Judge held that, being a woman the plaintiff was

exempted from from paying the court fees.

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2)

The aforesaid Special Civil Suit was filed by the plaintiff

i.e. the present Petitioner claiming damages of Rs.5,00,000/- from

the defendants therein alleging violence on their part in subjecting

her to Civil and Revenue litigations. The learned Single Judge

allowed the Writ Petition holding that, the Civil Suit and the

revenue proceeding filed against the plaintiff may not come within

the ambit and purview of term "related to violence" and

consequently held the plaintiff liable to pay the court fees on the

amount of damages claimed by her.

3)

In the present appeal, it is the contention of the

appellant that, the learned Single Judge failed in properly

appreciating the impetus of the two judgments relied upon by the

appellant first in the case of Usha Badri Poonawala Vs. K. Kurian

Babu reported in 2002 (3) Bom. C.R.215 and another in the case

of Sanjay Mahavirprasad Jain Vs. Mrs. Virshali W/o Sanjay Jain

reported in 1997(4) Bom.C.R. 299. Placing the reliance on the

judgments of the Hon'ble Apex Court in the case of Sri

Rathnavarmaraja Vs. Smt. Vimla reported in AIR 1961 Supreme

Court 1299 and in the case of A.Nawab John & Ors. Vs. V.N.

Subramaniyam reported in 2012 (4) ALL MR 481 (SC) it is also

contended that, the determination of the court fees is a matter

between the Plaintiff and the Court and Defendant has no right to

challenge the decision of the trial court.

4)

Shri Pathan, learned Counsel appearing for the

Respondents has supported the order passed by the learned Single

Judge.

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5)

We have carefully gone through the order passed by the

learned Single Judge as well as the documents filed on record,

which include the suit plaint in the Special Civil Suit No.7/2010.

On perusal of the averments in the suit plaint, it does not appear to

us that, any case is made out by the plaintiff for claiming exemption

in the court fees as per Maharashtra Government Notification dated

01.10.1994. In the aforesaid Civil Suit, the damages are claimed by

the plaintiff alleging that, she suffered mental torture and agony on

account of the the Civil Suit and the Revenue proceedings initiated

against her by the Defendants. It is evident as has been observed by

the learned Single Judge that, the plaintiff has filed the aforesaid

suit claiming damages alleging malicious civil prosecution.

Considering the contents in the suit plaint, even if the term violence

is interpreted liberally still the case of the plaintiff cannot come

within the ambit and purview the term 'relating to violence' as has

been held by the learned Single Judge.

6)

The learned Single Judge has rightly distinguished the

judgments relied upon by the present appellant in the case of Usha