NIRANJAN AMRITLAL Vs. MANHARLAL JIVANLAL PARIKH
HIGH COURT OF GUJARAT
MANHARLAL JIVANLAL PARIKH
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(1.) . In this second appeal the following substantial questions of law were framed by this Court (Coram: P. D. Desai J.):
"(1) Whether the Appellate under-valued the subject matter of the suit for the purposes of courts-fees and the suit is liable to be dismissed on the ground that it is not filed on payment of proper Court-fees. (2) Whether the suit is bad for joinder of necessary parties. (3) Whether the lower Appellate Court erred in law in rejecting the Appellants application for amendment of the plaint with a view to impleading parties who were found to be necessary parties. (4) Whether the suit is barred by law of limitation and (5) Whether the Appeal before the lower Appellate Court was barred by law of limitation.
(2.) . The first question pertains to the valuation of the suit for the purpose of court fees. Originally the plaintiff who has 1/10th share in the suit property had filed this suit in forma pauperis; but subsequently he agreed to pay the court fees and the court granted him time to pay up the proper court fees. The plaintiff paid a court fee of Rs. 53.00only and contended that his interest in the suit properties is only 1/10th and therefore he is liable to pay 1/10th of the court fees calculated on the basis of the value of the suit property. The Trial court found that the court fee paid was not proper. The lower appellate court confirmed the finding of the trial court and held that the suit was not filed on the proper court fees. The same question is now agitated by the present appellant original plaintiff in this court also.
(3.) . Mr. A. N. Bhagwat the learned Counsel for the appellant has before this court that both the courts below have erroneously that the court fee paid was not proper. For his contention that is liable to pay the court fees on the value of his share only Bhagwat has relied on the division Bench Judgment this Court in GANDHI BHUPATLAL JAGJIVAN V. SHAH SHUKLA VARSHIDAS NANALAL AND ANOTHER 9 G.L.R. 194. Mr. Bhagwat has urged that in the aforesaid judgment this court has held that a party is liable to pay court fees to the extent of his title only which according to him means that in this case the appellant plaintiff is liable to pay court fees on his 1/10th share only. This is obviously misleading and misunderstan- ding of the aforesaid division bench judgment of this Court. This Court has very clearly held that the court fee is payable on the title of the subject matter and the word title has been interpreted to mean the extent of right of the party in the subject matter of the suit. That title may be total or partial. It would be total in the case of owner of the property but it would be partial in the case of other titles such as that of a tenant or mortgagee-in-possession or a Mutawalli (Mana- ger). It is not correct to say that a co-owners title is not that of an owners title or that it is the title of a partial owner. It is quite obvious that in this case the appellant-plaintiff who is the part owner of 1/10th share in this suit property sues on behalf of himself and his other co-owners and seeks possession of the entire property must pay court fees on the valuation of the entire property and not on that of his 1/10th share in it. Mr. Bhagwat has urged that if the suit was covered by sec. 6(5) of the Bombay Court Fees Act he would be liable to pay court fees on the value of the entire property but according to him this is a case governed by sec. 6(4) (d) proviso (3) and hence he is liable to pay court fees only on his 1/10th share in the property. Mr. Bhagwats contention is obviously wrong and untenable. The appellant-plaintiff having filed suit for possession on behalf of himself and his co-owners in respect of the entire suit property he is liable to pay ad-valorem court fees on the value of the entire property and not on his 1/10th share. It is therefore held that the two courts below were right in holding that the suit is not filed on the proper court fees and hence the same is liable to be dismissed on that ground. However in the interest of justice this matter is being remanded back to the trial court to enable the plaintiff to pay the deficit court fees and proceed with the suit.;
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