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2012 DIGILAW 1019 (RAJ)

Anuradha v. Kumar Chaterjee

2012-04-20

VINEET KOTHARI

body2012
JUDGMENT 1. - Heard learned counsel for the parties. 2. This writ petition is directed against the order dated 18.12.2008 whereby the learned Additional Civil Judge (Jr. Division), No.2, Jodhpur while deciding the application of the defendants No.2 and 3 under Section 11 of the Rajasthan Suit Valuation & Court Fees Act, 1961, (for brevity, hereinafter referred to as 'Act of 1961') has held that in the present suit filed by the plaintiffs- Smt. Anuradha and Smt. Anindita Aditya, who are the sisters of defendant- Kumar Chatterjee, the suit property in question prima-facie appears to be of Rs. 20 lacs and, therefore, the Issue No.9 framed in the suit about the payment of court fees, which was set-down for decision as a preliminary issue, the parties may lead evidence with regard to the market value. 3. Mr. Sajjan Singh, learned counsel for the plaintiffs petitioners placing reliance on the judgment of this Court in the case of Shantilal Agarwal v. Smt. Ramabai & Ors. reported in AIR 1974 Raj. 69 urged that even though laying challenge to Will executed by the father of plaintiffs and defendants late Sh. B.N. Chatterjee, the court fees is not required to be paid on the basis of alleged market value of the suit property, which the learned trial court in the impugned order had arrived at Rs. 20 lacs. 4. On the other hand, Mr. O.P. Mehta, learned counsel appearing on behalf of respondents relying upon a decision of Lahore High Court in the case of Bura Mal v. Tulsi Ram reported in AIR 1927 Lahore 890 submitted that where the consequential relief is also sought along-with the declaration, the court fees would be payable on the basis of market value of the suit property under Clause 24 (b) of the Act of 1961 as against the said contention of the learned counsel for the petitioners-plaintiffs, Mr. Sajjan Singh that the case would fall under Clause 24 (e) of the said Act and the court fees according to Clause 24 (e) has already been paid by the plaintiffs. 5. Sajjan Singh that the case would fall under Clause 24 (e) of the said Act and the court fees according to Clause 24 (e) has already been paid by the plaintiffs. 5. Having heard learned counsel for parties parties, this Court is of the opinion that it is rather premature for this Court at this stage to pronounce upon the court fees payable by the plaintiffs petitioners inasmuch as the Issue No.9 framed for this purpose by the learned court is yet to be decided by it as a preliminary issue. The apprehension of the plaintiffs that the Issue No.9 is bound to be decided against them, and the court fees is bound to be paid on the basis of market value as indicated in the impugned order at Rs. 20 lacs, appears to be justified. Learned counsel for the respondents defendants also submitted that the learned court below has only said that it is prima-facie valuation and, therefore, the plaintiffs-petitioners need not be apprehensive about this and the parties have been left free to lead evidence with regard to the same. 6. Since, the learned trial court is yet to decide the Issue No.9, any indication about the market value in the impugned order while deciding the application under Section 11 of the Act of 1961 was not called for. The first and the basic issue whether Section 24 (b) would apply in the present case or Section 24 (e) would apply, is required to be decided and then only the question of determination the market value, if the court comes to the conclusion that sub- Clause (b) would apply, can arise, and if sub-Clause (e) applies, then the question of market value of the suit property is irrelevant. 7. Therefore, this writ petition is disposed of and the learned trial court is requested to decide the Issue No.9 regarding payment of court fees uninfluenced by the observations made by it in the impugned order dated 18.02.2008 about the market value of the suit property at Rs. 20 lacs, and first decide the question about the applicability of Section 24 (b) v. 24 (e) of the Act of 1961. The parties will be at liberty to raise their contentions based on case laws S.B. Civil Writ Petition No.5294/2009 and statutory provisions before the learned trial court for decision of Issue No.9. 20 lacs, and first decide the question about the applicability of Section 24 (b) v. 24 (e) of the Act of 1961. The parties will be at liberty to raise their contentions based on case laws S.B. Civil Writ Petition No.5294/2009 and statutory provisions before the learned trial court for decision of Issue No.9. The said preliminary issue may be decided expeditiously, preferably within a period of four months from today.No order as to costs.Petition disposed of. *******