COMMON PIRU CAUDHARI Vs. BERUBAI CHENDU REDHIWALE
HIGH COURT OF BOMBAY (AT: NAGPUR)
COMMON PIRU CAUDHARI
BERUBAI CHENDU REDHIWALE
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(1.) Heard learned counsel for the applicant at length. None appears for the respondents though served. Admit. Taken up for final hearing pursuant to the order dated 11th January 2017.
(2.) On going through the impugned order and as rightly submitted by learned counsel for the applicant, learned Civil Judge, JD, Malegaon has committed a serious error of law in applying the provisions of Section 6 (iv) (ha) of the Bombay Court Fees Act (for short, the "Act"). It may be noted that prayer clause (c) of the plaint seeks only a declaration that the sale deed dated 25.2.2013, so far as the plaintiff is concerned, is not binding on him. There are other clauses in the prayer which seek similar kind of declarations. The declarations sought in the prayer are only to the extent that various sale deeds specifically mentioned therein are not binding upon the applicant. None of the prayer clauses is seeking a declaration that all these sale deeds or any of them are/is null and void.
(3.) Section 6 (4) (ha) of the Act reads thus : "6. Computation of fees payable in certain suits The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows: ........ (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 move-able 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. One must understand that there is a sea difference between a declaration that any sale or contract for sale is null and void and the declaration that the sale or contract for sale has no binding effect. In the former case, the very existence of the sale transaction or contract for sale is sought to be razed whereas in the latter case, such existence is not sought to be denied but its effect is only sought to be not applicable to the person seeking declaration. This would mean that when the declaration that a sale or contract for sale insofar its effect is concerned, does not affect in any manner the claimant or is not binding upon the claimant, its existence is not sought to be denied and it may still be binding upon all others but the claimant. It would then follow that the declarations as sought by the applicant in this case were such as were not covered by clause (ha) of Section 6 (iv) of the Act and that would be covered by some different clause.;
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