1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2238 OF 2010 Syed Rahmatulla Shah s/o Syed Turab Ali Shah, age: 62 years, Occ: Business, R/o House No.7-3-76/77, Near Z.P. High School, Masjid Haji Faqurulla Shah Saheb, Itwara Bazar, Nanded, District Nanded. Petitioner Versus 1 The Maharashtra Agro Food Corporation (MAFCO), through its Branch Manager, Nanded. 2 Nanded-Waghala City Municipal Corporation, Nanded, through its Chief Officer, Nanded. 3 The State of Maharashtra, through Collector, Nanded. Respondents Mr.S.V.Warad, advocate for the petitioner. Mr.R.R.Mantri, advocate for Respondent No.1. Mr.Narwadkar, advocate holding for Mr.M.V.Deshpande, advocate for Respondent No.2. Mrs.Y.M.Kshirsagar, A.G.P. For Respondent No.3. CORAM: R.M.BORDE, J. DATE : 09th April, 2010. P.C.: 1 Application made by petitioner – original plaintiff during pendency of suit to grant him permission to deposit court fee of Rs.6430/- treating valuation of the suit to be Rs.1,00,000/- has been considered by the trial Court and considering provisions of Bombay Court Fees Act, the trial 2 Court has directed plaintiff to pay ½ of ad valorem court fee on evaluation of the suit property as Rs.7,00,07,786/- in accordance with provisions of Section 6(iv) (d) of Bombay Court Fee Acts and said order passed by the trial Court is subject matter of challenge in this petition. 2 It is not controverted that initially petitioner – plaintiff presented Regular Civil Suit No.308/2008 requesting to grant decree against defendants restraining them from creating third party interest in respect of suit property. Plaintiff also prayed for decree in respect of recovery of possession. It further transpires that during continuance of suit, defendants created third party interest and the property came to be alienated in favour of one MAFCO Frozen Foods. The property was transferred along with machinery for consideration of Rs.7,00,07,786/-. Plaintiff, as such, was required to tender an application seeking amendment to the plaint. Plaintiff, by virtue of amendment, claims following reliefs: Declaration that the auction proceeding conducted by defendant No.1 through SICOM Ltd. in respect of land admeasuring 7 acres 11 gunthas out of Survey No.101 situated at Nanded is not binding upon plaintiff. Further declaration that the sale deed bearing No. 4707/2009 dated 10.06.2009 executed by defendant No. 5 is not binding on plaintiff and does not confer any right, title, interest to the defendant No.5. Further issue of perpetual injunction restraining deft.No.5 from carving any plots in the area of 7 acres 11 gunthas out of survey No.101 and also restrain from changing the nature of land.” 3 After amendment was effected to the suit presented by 3 plaintiff, defendants raised objection as regards valuation as well as court fees payable by plaintiff. The objection raised at the instance of defendants was considered by the trial Court while disposing of application tendered by plaintiff. The trial Court has observed that case put up by plaintiff comes within purview of Section 6(iv) of Bombay Court Fees Act and as such, Court fees leviable is ½ of ad valorem on the valuation of suit property. Plaintiff was accordingly directed to pay the court fees. The order passed by trial Court on 04.01.2010 determining valuation of suit property so also court fee payable by plaintiff is subject matter of this petition. 4 Learned Counsel for petitioner – original plaintiff contends that case put up by plaintiff comes within purview of Section 6(iv) (j) of the Act and third proviso to sub-section (iv) (d) of Section 6 is not attracted. He further contends that subject matter in dispute is not susceptible for monetary valuation and as such, court fees payable would be in accordance with Section 6(j) of the Act. 5 I have gone through the relevant provisions. Plaintiff has requested for grant of leave to add parties to the suit and also a declaration to the effect that sale deed executed by defendants in favour of third party does not bind right, title and entitlement of plaintiff in respect of suit property. The trial Court was, therefore, justified in observing that third proviso to Section (iv) (d) of Section 6 of the Act is attracted in the case and the court fees payable is ½ of ad valorem. 6 Learned Counsel for the petitioner places reliance on the judgment in the matter of Rajaram Bhagwati Tiwari Vs. Municipal Corporation, reported in 2004 (3) Mh.L.J. 290; and in the matter of Smt. Taradevi Vs. Sri 4 Thakur Radha Krishna Maharaj, reported in AIR 1987 SC 2085. The judgments cited at bar are matters arising out of totally different set of facts and as such, ratio laid down in the judgments cited is not applicable to the present case. There is no merit in the petition. 7 Writ Petition stands rejected. (R.M.BORDE) JUDGE ******* adb/wp223810