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2018 DIGILAW 158 (RAJ)

PARAS @ DEVKISHAN v. PANNA LAL JI

2018-01-12

PUSHPENDRA SINGH BHATI

body2018
ORDER : Pushpendra Singh Bhati, J. Petitioner has preferred this writ petition with the following prayer :- "It is, therefore, most respectfully prayed that this Hon'ble Court may pleased to allow the writ petition and by suitable writ, direction or order the order impugned annexure 10, order dated 30.10.2014 passed by the court below the District Judge Metropolitan Jodhpur City in C.M. 73A/1999 titled Para v. Panna Lal & Ors. May kindly be set aside. Any other appropriate order, which this Hon'ble Court deem it proper and found favourable to the petitioner, may kindly be passed." 2. At the outset, learned counsel for the petitioner has contested the issue of court fee on three proposition. The first proposition is that the present suit was filed in 1999 and the valuation for the purpose of court fee is being imposed by year 2006. The second proposition of counsel for the petitioner is that the proviso of Rule 11 (j) of the Rajasthan Court Fee and Suit Valuation Act, 1961 shall not be applicable on 11 (j)(i), and therefore, the present litigation cannot be treated as a separate suit. Learned counsel for the petitioner has raised the third issue that had it been a revenue suit because most of the property involved was the agricultural property then the court fee would have been absolutely minimized. 3. Learned counsel for the respondent has answered all the three points while stating that 11(j)(i) shall have to be read with the proviso at the end of 11(j) and therefore, the proviso shall be equally applicable in the present facts. Learned counsel for the respondent however does not wish to join the issue on the third issue as it is imaginary issue and no such agricultural suit has been filed. 4. Learned counsel for the respondent has relied upon the judgment passed by a coordinate Bench of this Court in Smt. Shashi Charan v. Nachiketa Singh (Rajasthan), 2015 (2) DNJ 796 , decided on 13.04.2015, the judgment reads as under :- "This writ petition is directed against the order dated 26.2.2013 passed by the trial court, whereby the application filed by the petitioner under Section 51 of the Rajasthan Court Fees & Suits Valuation Act, 1961 ('the Act') has been dismissed. The respondent filed proceedings under section 276 of the Indian Succession Act, 1925 ('the Succession Act') seeking probate of will dated 15.6.2002 said to have been executed by Ganga Dan Charan. The proceedings were where after converted into application for grant of letter of administration. The petitioner appeared and sought to contest the proceedings filed by the respondent and where after application under Section 51 of the Act was filed inter alia raising the contention that as the proceedings are contested, the plaintiff is required to pay the court fees in terms of proviso to Article 11(j) of the second schedule of the Act. The application was contested by the respondent. The trial court by its order dated 26.2.2013 while relying on the judgment in Vasudeo v. Lal Singh & Ors., AIR 1992 Raj. 133 and distinguishing the case of Bhagwandas & Ors. v. Bhagwandas & Anr., AIR 2000 Raj. 67 , dismissed the application. It is submitted by learned counsel for the petitioner that the judgment of this Court in the case of Bhagwandas has dealt with and has in-fact distinguishing the judgment in the case of Vasudeo (supra) held that in the case of present nature where the proceedings became contentious the court fee payable is under the proviso to Article 11(j) of Second Schedule of the Act and therefore, the trial court was justified in dismissing the application. Learned counsel for the respondents submitted that the judgment in the case of Vasudeo (supra) holds the field and therefore, it cannot be said that the trial court was justified in dismissing the application filed by the petitioner. I have considered the rival submissions and have perused the material available on record. There is no dispute that the proceedings in the present matter have become contentious and therefore, the applicability of the Article under the Act has to be examined from the said point of view. This Court in the case of Bhagwandas (supra) while elaborately discussing the provisions of law as well as the law laid down in the case of Vasudeo (supra) has categorically held as under :- "18. As already stated the application submitted by the plaintiff for grant of letter of administration before the Court below was ordered to be registered as regular suit. As already stated the application submitted by the plaintiff for grant of letter of administration before the Court below was ordered to be registered as regular suit. Admittedly, it is contentious case for the grant of letter of administration, therefore, the Court fee is payable under the proviso to Article 11(j) of Schedule II of the Act of 1961. The learned counsel below has properly considered the provisions contained in the Act of 1961 and committed jurisdictional error on placing reliance on Vasudeo v. Lal Singh ( AIR 1992 Raj 133 ) (supra), the ratio of which is applicable to a contentious case. If the impugned order is allowed to stand it would occasion failure of justice." In view of the law laid down by this Court, while considering the judgment in the case of Vasudeo (supra), it cannot be said that the trial court was justified in dismissing the application filed by the petitioner. In that view of the matter, the writ petition filed by the petitioner is allowed; the order dated 26.2.2013 passed by the trial court is set-aside and the trial court is directed to proceed in the matter after registering the proceedings as a regular suit and direct plaintiff-Nachiketa Singh to pay ad valorem court fees in terms of the decision in the case of Bhagwandas (supra)." 5. After hearing counsel for the parties and perusing the law, this Court is of the opinion that the proviso of Rule 11 (j) as per the precedent law shall apply on the petitioner, however, the petitioner shall be required to give court fee which can be evaluated only on the date of filing of the suit. The Annexure-4 is the schedule, which has been evaluated by the petitioner and may be considered by the court only after hearing the counsel for the parties. 6. Thus, this writ petitions is disposed of on the aforementioned observations and the impugned order 30.10.2014 is quashed and set aside and the learned court below is directed to re-consider the aspects in light of the Annexure-4 which is the schedule keeping in consideration the objection taken by the respondents. As per the rule 11 (j) it shall be a regular suit and also the court fee shall evaluated as per the value on the date of the filing of the suit by the learned Court below.