- (1.) Order dated 12.3.2011 of District Judge, Family Court, Hisar whereby deciding application of the defendants (petitioner herein), the respondents-plaintiffs have been called upon to make payment of advalorem Court fees to the extent of Rs.12,000/- and have been directed to make the deficiency in Court fee good, is under challenge at the instance of the petitionerapplicant- defendants. Seeking modification of this order, it is claimed that advalorem Court fee should be payable by the respondents on a sum of Rs.12 lakhs and in default, plaint should be rejected.
(2.) A suit under Sections 19 & 22 of the Hindu Adoptions and Maintenance Act, 1956 (hereafter referred to as the Act) filed by the respondentplaintiff is pending adjudication against the petitioner-defendant wherein respondent-plaintiffs are claiming maintenance to the tune of Rs.10,000/- per month from the date of filing of the suit. Counsel for the applicants-defendants (petitioners herein) has referred to provisions of Section 7 of Court Fees Act, 1870 which reads as under:- 7. 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 :- for money.-(i) xx xx xx for maintenance and annuities.-(ii) In suits for maintenance and annuities or other sums payable periodically-according to the value of the subject matter of the suit, and such value shall be deemed to be ten times the amount claimed to be payable for one year; He thus urges that taking claim of maintenance of Rs.10,000/- per month of the respondent-plaintiffs, annual maintenance claimed comes to Rs.10,000 x 12 = Rs.1,20,000/- and Court fee on 10 times of such value is payable by them. In short, it is claimed that Court fee is payable on Rs.12 lakhs. It has urged that their may be some typographical mistake in the order seeking fixation of advalorem Court fees of Rs.12,000/-. It is urged that it appears that the Court fees was sought to be got affixed from the respondentplaintiffs on Rs.12 lakhs.
(3.) Counsel for the respondent, on the other hand referring to Mamta Versus Hari Kishan, 2004 3 CivCC 267 urges that advalorem Court fee is not payable as proceedings before the Family Court are not in the nature of a suit. Support has also been sought from Sri Rathnavarmaraja Versus Vimla Smt.,1961 3 RCR 1015, wherein it was held as under:- "Whether proper Court fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. xx xx xx The defendant who may believe and even honestly that proper court fee has not been paid by the plaintiff has still no right to moved the superior courts by appeal or in revision against the order adjudging payment of court fee payable on the plaint.;