SCA/17962/2005 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 17962 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ========================================================= VASANTBHAI HIRABHAI & 1 - Petitioner(s) Versus NANDUBEN HIRABHAI & 5 - Respondent(s) ========================================================= Appearance : MR NV GANDHI for Petitioner(s) : 1 - 2. RULE SERVED for Respondent(s) : 1 - 4, 4.2.2, 4.2.4, 4.2.5, 4.3.1,4.3.2 - 6. MR MANAN A SHAH for Respondent(s) : 1 - 3. None for Respondent(s) : 4,4.2.3 MR NILESH PANDYA for Respondent No.5. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 30/04/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the SCA/17962/2005 2/5 JUDGMENT Constitution of India, the petitioners - original plaintiffs have prayed for an appropriate writ, order or direction quashing and setting aside the order dated 15th July, 2005, passed below Exhs.88, 88/A and Exh.23 in Special Civil Suit No.308 of 2003 passed by the learned Principal Civil Judge (S.D.) at Surat, qua the petitioners – original plaintiffs by which the trial court on the objections being raised by the Court Fee Officers as well as the defendants has directed the petitioners – original plaintiffs to pay maximum court fees of Rs.75,000/-. 2. Shri Nehal V.Gandhi, learned advocate appearing on behalf of the petitioners – original plaintiffs has submitted that as the land in question is an agriculture land and to protect the possession of the petitioners, a suit for permanent injunction and restraining the defendants from disturbing their possession is filed, the valuation was rightly fixed at Rs.10.00 lacs for jurisdiction and Rs.300/- for court fees. Therefore, the trial court has committed an error in directing the petitioners-original plaintiffs to pay the deficit court fees of Rs.75,000/- solely and/or mainly on the ground that the defendants have agreed to pay the court fees of Rs.75,000/- in the counter claim. Therefore, it is requested to allow the present Special Civil Application. SCA/17962/2005 3/5 JUDGMENT 3. Petition is opposed by Shri Nilesh Pandya, learned advocate appearing on behalf of respondent No.5. It is submitted that looking to the prayer clause in the suit, it was not only a suit for permanent injunction with respect to possession but further reliefs are also sought, and considering the fact that the land in question is included in the Town Planning Scheme, it is very doubtful whether the land in question is still to be considered as an agriculture land, and therefore, the plaintiffs were required to pay the maximum court fees of Rs.75,000/- and the suit only on payment of court fees on Rs.300/- is not maintainable. It is also further submitted by Shri Pandya that even the Court Fee Inspector has also submitted the report that the suit was filed on insufficient court fees. Therefore, it is requested to dismiss the present Special Civil Application. 4. Heard the learned advocates appearing for the respective parties. 5. In the suit the petitioners – original plaintiffs have not only prayed for permanent injunction with respect to possession but there are other reliefs also and therefore it SCA/17962/2005 4/5 JUDGMENT cannot be said that the suit is only for a declaration and permanent injunction with respect to possession only. Under the circumstances, the contention on behalf of the petitioners that the suit is only for permanent injunction cannot be accepted. Even otherwise, the Court Fee Inspector has also submitted the report and submitted that the suit is on insufficient court fees and therefore the original plaintiffs were required to pay deficit court fees, and more particularly considering the prayer clause and the reliefs sought in the suit, the trial Court has not committed any error in directing the original plaintiffs to pay the deficit court fees which calls for interference under the exercise of powers under Article 227 of the Constitution of India. 6. For the reasons stated above, the petition fails and requires to be dismissed and accordingly it is dismissed. Rule is discharged. 7. At this stage, Shri Nehal Gandhi, learned advocate appearing on behalf of the petitioners-original plaintiffs prays for extension of time to pay deficit court fees pursuant to the order passed by the trial court impugned in the present petition. In the facts and circumstances of the case, and as SCA/17962/2005 5/5 JUDGMENT the present petition was pending, time to pay deficit court fees pursuant to the order passed by the trial court impugned in the present petition is extended upto 23rd June, 2008. Rule is discharged with no order as to costs. Ad-interim relief granted earlier shall stand vacated forthwith. ( M.R. SHAH, J. ) syed/