Case Note & Summary
The applicant, Common Piru Caudhari, filed a civil suit in the court of Civil Judge, JD, Malegaon seeking declarations that certain sale deeds dated 25.2.2013 and other specified sale deeds were not binding on her. The trial court, while computing court fees, applied Section 6(iv)(ha) of the Bombay Court Fees Act, 1959, which provides for payment of one-half ad valorem fee on the value of the property in suits for declaration that any sale or contract for sale is void. The applicant challenged this order by filing a Civil Revision Application No. 3 of 2017 before the Bombay High Court, Nagpur Bench. The High Court heard the counsel for the applicant; none appeared for the respondents despite service. The court examined the prayer clause (c) of the plaint and noted that it sought only a declaration that the sale deed dated 25.2.2013 was not binding on the plaintiff, and other similar declarations. None of the prayer clauses sought a declaration that the sale deeds were null and void. The court then reproduced Section 6(iv)(ha) of the Act, which applies only when the suit seeks a declaration that any sale or contract for sale or termination of contract for sale of any movable or immovable property is void. The court held that since the suit did not seek such a declaration, the provision had no application. The trial court had committed a serious error of law in applying Section 6(iv)(ha). The High Court allowed the civil revision application, set aside the impugned order, and directed the trial court to compute the court fees afresh in accordance with law, considering the nature of the declarations sought. The court also clarified that the observations were only for the purpose of deciding the court fee issue and not on the merits of the suit.
Headnote
A) Court Fees - Computation of Fee - Section 6(iv)(ha) Bombay Court Fees Act, 1959 - Declaration that sale is not binding vs. declaration that sale is void - The suit sought only a declaration that certain sale deeds were not binding on the plaintiff, not that they were void. The trial court erroneously applied Section 6(iv)(ha) which applies only when the suit seeks a declaration that a sale or contract for sale is void. The High Court held that the provision has no application to declarations that a sale is not binding on the plaintiff. (Paras 2-4)
Issue of Consideration
Whether the Civil Judge, JD, Malegaon correctly applied Section 6(iv)(ha) of the Bombay Court Fees Act, 1959 to a suit seeking declaration that sale deeds are not binding on the plaintiff, as opposed to a declaration that the sale deeds are void.
Final Decision
The Civil Revision Application is allowed. The impugned order is set aside. The trial court is directed to compute the court fees afresh in accordance with law, keeping in view the nature of the declarations sought. Observations are only for the purpose of deciding the court fee issue and not on the merits of the suit.
Law Points
- Interpretation of Section 6(iv)(ha) of Bombay Court Fees Act
- 1959
- Distinction between declaration that sale is void and declaration that sale is not binding
- Court fee computation in suits for declaration
Case Details
2017 LawText (BOM) (06) 157
Civil Revision Application No. 3 of 2017
Shri R. Deshpande h/f Shri S. V. Sirpurkar for applicant; None for respondents
Berubai Chendu Redhiwale and others
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Nature of Litigation
Civil Revision Application challenging the order of the Civil Judge, JD, Malegaon regarding computation of court fees in a suit for declaration that sale deeds are not binding on the plaintiff.
Remedy Sought
The applicant sought to set aside the impugned order and direct the trial court to compute court fees afresh.
Filing Reason
The trial court erroneously applied Section 6(iv)(ha) of the Bombay Court Fees Act, 1959 to a suit seeking declaration that sale deeds are not binding, instead of a declaration that they are void.
Previous Decisions
The Civil Judge, JD, Malegaon passed an order applying Section 6(iv)(ha) of the Bombay Court Fees Act, 1959 for computation of court fees.
Issues
Whether Section 6(iv)(ha) of the Bombay Court Fees Act, 1959 applies to a suit seeking declaration that sale deeds are not binding on the plaintiff, as opposed to a declaration that the sale deeds are void.
Submissions/Arguments
Learned counsel for the applicant submitted that the trial court committed a serious error of law in applying Section 6(iv)(ha) of the Bombay Court Fees Act, 1959 because the suit only sought declarations that the sale deeds are not binding on the plaintiff, not that they are void.
Ratio Decidendi
Section 6(iv)(ha) of the Bombay Court Fees Act, 1959 applies only when the suit seeks a declaration that any sale or contract for sale or termination of contract for sale of any movable or immovable property is void. It has no application to a suit seeking a declaration that a sale deed is not binding on the plaintiff.
Judgment Excerpts
Section 6 (4) (ha) of the Act reads thus : '6. Computation of fees payable in certain suits ... (iv) (ha). for avoidance of sale, contract for sale, etc. In suits for declaration that any sale or contract for sale or termination of contract for sale, of any moveable or immoveable property is void – one half of ad valorem fee leviable on the value of the property.'
Obviously, clause (ha) of Section 6 (iv) of the Act applies only when the suit seeks declaration that any sale or contract for sale or termination of contract for sale of any moveable or immoveable property is void and as such, it would have no application to declarations sought in this case which do not seek any sale or contract for sale or termination of contract for sale of any immovable or movable property to be void.
Procedural History
The applicant filed a civil suit in the court of Civil Judge, JD, Malegaon seeking declarations that certain sale deeds are not binding on her. The trial court passed an order applying Section 6(iv)(ha) of the Bombay Court Fees Act, 1959 for computation of court fees. The applicant challenged this order by filing Civil Revision Application No. 3 of 2017 before the Bombay High Court, Nagpur Bench. The High Court admitted the revision and took it up for final hearing pursuant to order dated 11th January 2017.
Acts & Sections
- Bombay Court Fees Act, 1959: Section 6(iv)(ha)
