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2010 DIGILAW 250 (GUJ)

P K ENGINEERING v. GUJARAT URJHA VIKAS NIGAM

2010-05-11

M.R.SHAH

body2010
JUDGMENT 1. The present Civil Revision Application under Section 115 of the Civil Procedure Code has been preferred by the petitioner original opponent in First Appeal No.4538/2007 and the applicant of Cross Objections (Stamp) No.124/2007 challenging the impugned order dated 27.04.2009 passed by the Taxing Officer holding that the Court fees paid on the memo of cross objection is not proper as per the valuation made and Court fees is required to be paid under the Gujarat Court Fees Act, 2004. 2. The short question which is posed for consideration of this Court is whether in a suit which is filed / instituted prior to the Gujarat Court Fees Act coming into force, in an Appeal against the judgment and order passed by the learned trial Court in the said suit and/or in the cross objection in Appeal which is filed against the judgment and decree passed by the learned trial Court which was instituted prior to coming into force of the Gujarat Court Fees Act, the Court fees is leviable and payable as per the Gujarat Court Fees Act which is prevailing at the time when the First Appeal and/or cross objections are instituted ? 3. As such the controversy raised in the present Revision Application is now not res integra and is covered by the decision of Full Bench of this Court in case of C.N. Brothers and Others v. Commissioner of Income-Tax, Ahmedabad reported in AIR 1961 GUJARAT 144 and the subsequent decision of the Division Bench in the case of Mahendra Ratilal Patel and another v. Patel Nagindas Keshavlal and others reported in AIR 1963 GUJARAT 40 [which followed the earlier Full Bench decision in the case of C.N. Brothers (Supra)]. In the case of Mahendra Ratilal and Another (Supra), the Division Bench in para 10 has specifically held and observed that the computation of the claim involved in an Appeal presented after the Bombay Court Fees Act, 1959 came into force should be made in accordance with the provisions of the new Act, although the suit in respect of which the Appeal has been filed was instituted at a time when the Court Fees Act, 1870 was in force. Applying the aforesaid decisions to the facts of the present case, it is to be held that in a case where the suit was instituted prior to coming into force of the Gujarat Court Fees Act, 2004 and the matter is carried in Appeal and/or cross objections are preferred in an Appeal against the judgment and decree passed by the learned trial Court passed in a suit which was instituted prior to coming into force of Gujarat Court Fees Act, 2004, and the Appeal and/or cross objections are instituted after coming into force of Gujarat Court Fees Act, 2004, the Court fees is required to be paid under the Gujarat Court Fees Act, 2004 i.e. at the time when the First Appeal and/or cross objections are instituted. 4. In view of the above, it cannot be said that Taxing Officer has committed any error and/or has committed any illegality in holding that the Court fees paid on memo of cross objections is not proper as per the valuation made and the Court fees is required to be paid under the Gujarat Court Fees Act, 2004. 5. At this stage, Shri Dhaval Vyas, learned advocate appearing on behalf of the petitioner has requested to extend the time to pay the Court fees on the cross objections which is required to be paid now as per the decision of the Taxing Officer which is confirmed by this Court. In the facts and circumstances of the case, time to pay the Court fees on cross objections is hereby extended upto 14th May 2010. 6. In view of the above, there is no substance in the present Civil Revision Application which deserves to be dismissed and is, accordingly, dismissed.