Manjula M. Thakkar Vs. Shivshakti Enterprises and Others

Manjula M. Thakkar vs Shivshakti Enterprises and Others

Type Court Judgment Court Mumbai Decided Feb 18, 1998

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Citation: sooperkanoon.com/357093
Court: Mumbai High Court
Judge: R.M. Lodha, J.
Decided On: Feb 18, 1998
Case Number: Writ Petition No. 6318 of 1997
Subject: Civil

Case Summary

AI-generated summary - not the official court judgment text.

[A] Constitution of India, 1950 - Article 227 - Supervisory Writ Jurisdiction - Bombay Court Fees Act, 1959 - Schedule I - Article 7 -Notification No. 1091/CR dated 1.10.94 - Court fees - Exemption from - By women - Notification - Applicability of - Whether the petitioner is entitled for the exemption? Yes.;I am not...

Key legal issue: Civil
Acts & sections: Bombay Court Fees Act, 1959 - Sections 46 - Schedule - Article 7

Parties & Advocates

Appellant / Petitioner

Manjula M. Thakkar

Advocate S.G. Vakil and ;Mrs. Rekha K. Mehta, Advs.

Respondent

Shivshakti Enterprises and Others

Advocate S.R. Nargolkar, A.G.P.

Legal References

Acts: Bombay Court Fees Act, 1959 - Sections 46 - Schedule - Article 7
Reported In: 1998(3)ALLMR759; 1998(5)BomCR265

Excerpt

.....court fees act, 1959 - schedule i - article 7 -notification no. 1091/cr dated 1.10.94 - court fees - exemption from - by women - notification - applicability of - whether the petitioner is entitled for the exemption? yes.;i am not concerned with articles 1 to 6, but. article 7, which is a residuary article reads as follows :;'any other plaint, application or petition (including memorandum of appeal), to obtain substantive relief capable of being valued in terms of monetary loss, including cases where in application or petition is either treated as plaint or is described as the mode of obtaining the relief as aforesaid.';now a suit for specific performance is clearly a suit to obtain substantive relief capable of being valued in terms of money and as such covered by this residuary article. the petitioner is thus entitled to the exemption.;[b] suit for specific performance - notification no. 1091/cr dated 1.10.94 - applicability of - court fees - exemption from - by woman - whether notification applicable for the suit for specific performance of the contract? yes.;there is no dispute that the present suit is filed in a civil court by a a woman litigant and it pertains to a property dispute. the trial court has. however, declined to grant exemption on the ground that the present suit which is a suit for specific performance is not covered by the first and the second schedules of the act. in my opinion, the trial court is wrong in taking this view, because the suit for specific performance is clearly covered by article 7 of the first schedule. - interpretation of statutes. words used; [j.n. patel, dr. d.y. chandrachud & smt r.s. dalvi, jj] every word in legislative instrument or in subordinate legislation must be ascribed meaning consistent with intent of framers of law. - in my opinion, the trial court is wrong in taking this view, because the suit for specific performance is clearly covered by article 7 of the first schedule. ' now a suit for specific..........litigant and it pertains to a property dispute, the trial court has, however, declined to grant exemption on the ground that the present suit which is a suit for specific performance, is not covered by the first and the second schedules of the act. in my opinion, the trial court is wrong in taking this view, because the suit for specific performance is clearly covered by article 7 of the first schedule. the first and the second schedules of the act determine the method of assessment of fee. schedule i contains as many as seven articles. i am not concerned with articles 1 to 6, but article7. which is residuary article reads as follows:'any other plaint, application or petition (including memorandum of appeal), to obtain substantive relief capable of being valued in terms of monetary loss, including cases where in application or petition is either treated as plaint or is described as the mode of obtaining the relief as aforesaid.' now a suit for specific performance is clearly a suit to obtain substantive relief capable of being valued in terms of money and as such covered by this residuary article. the petitioner is thus entitled to the exemption.8. the learned assistant government pleader fairly concedes that in view of the aforesaid legal position the petitioner is not liable to pay ad valorem court fee in summary suit no. 2486 of 1997.9. accordingly, the writ petition is allowed and it is directed that the petitioner is not liable to pay ad valorem court fee in summary suit no. 2486 of 1997 and she is permitted to file and proceed with the said suit without payment of court fee. rule is made-absolute in aforesaid terms. no costs.10. petition allowed.

Full Judgment

ORDER

P.M. Lodha, J.

1. Leave to amend granted.

2. Rule. Returnable forthwith.

3. The learned Counsel for the petitioner submits that no relief is sought in the petition against respondents Nos. 1 and 2 and therefore service may be dispensed with on them. Mr. Nargolkar, Assistant Government Pleader, waives service on behalf of respondent No. 3.

4. By this writ petition the petitioner who is plaintiff in the suit prays that she be permitted to file the above summary suit without payment of ad valorem Court fee in accordance with the exemption by the Notification No. 1091/CR dated 1.10.1994. The petitioner is a lady and submits that in view of the aforesaid notification, she is not liable to pay the ad valorem Court fee on the said suit.

5. The petitioner relies upon the judgment of this Court in Deepa Shashikant Godambe v. State of Maharashtra and others : (1996)98BOMLR675 , and the aforesaid notification.

6. The notification dated 1-10-1994 reads thus:

'REVENUE AND FORESTS DEPARTMENT

Mantralaya, Bombay-400 032, dated the 1 st October, 1994.

BOMBAY COURT FEES ACT, 1959.

No, STP/1094/CR/859/M.1 ---Whereas the Government of Maharashtra has recently announced a policy with a view to promote the welfare of the women;

And whereas, the said welfare policy for women inter alia, provides for exemption of Court fees for women litigants in cases relating to maintenance, property right, violence and divorce.

And whereas section 46 of the Bombay Court Fees Act, 1959 (Bom. XXXVI of 1959) empowers the State Government by notification in the Official Gazette to reduce or to remit any of the fees mentioned in the First and Second Schedules to that Act:

Now, therefore, in exercise of the power conferred by section 46 of the Bombay Court Fees Act, 1959 (Bom. XXXVI 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 otherdocuments 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.

By order and in the name of the Governor of Maharashtra.

HARSHAWARDHAN GAJBHIYF

Deputy Secretary to Government.'

The said notification has been construed by this Court in Deepa Shashikant Godambe's case wherein it has been held by this Court thus:

'On plain reading of this notification, it is seen that the welfare policy for the women, inter alia, provides for exemption of Court-fees for women litigants in cases relating to maintenance, property disputes, violence and divorce. It is also seen that by issuing the said notification, the Government of Maharashtra has remitted the fees payable by the 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 Act to be filed in any Civil, Family or Criminal Courts in respect of cases relating to the aforesaid categories.'

7. There is no dispute that the present suit is filed in a Civil Court by a woman litigant and it pertains to a property dispute, The trial Court has, however, declined to grant exemption on the ground that the present suit which is a suit for specific performance, is not covered by the First and the Second Schedules of the Act. In my opinion, the trial Court is wrong in taking this view, because the suit for specific performance is clearly covered by Article 7 of the First Schedule. The First and the Second Schedules of the Act determine the method of assessment of fee. Schedule I contains as many as seven articles. I am not concerned with Articles 1 to 6, but Article7. which is residuary Article reads as follows:

'Any other plaint, application or petition (including memorandum of appeal), to obtain substantive relief capable of being valued in terms of monetary loss, including cases where in application or petition is either treated as plaint or is described as the mode of obtaining the relief as aforesaid.'

Now a suit for specific performance is clearly a suit to obtain substantive relief capable of being valued in terms of money and as such covered by this residuary article. The petitioner is thus entitled to the exemption.

8. The learned Assistant Government Pleader fairly concedes that in view of the aforesaid legal position the petitioner is not liable to pay ad valorem Court fee in Summary Suit No. 2486 of 1997.

9. Accordingly, the writ petition is allowed and it is directed that the petitioner is not liable to pay ad valorem Court fee in Summary Suit No. 2486 of 1997 and she is permitted to file and proceed with the said suit without payment of Court fee. Rule is made-absolute in aforesaid terms. No costs.

10. Petition allowed.

Same Court & Year Mumbai · 1998 Same Parties Manjula M. Thakkar vs Shivshakti Enterprises and Others Same Subject Civil Same Judge R.M. Lodha, J. Acts & Sections Bombay Court Fees Act, 1959 - Sections 46 - Schedule - Article 7

Civil