1 wp8673.10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 8673 OF 2010 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. B.S. Kudale, Advocate for the petitioner. CORAM : B.P. DHARMADHIKARI, J. DATE : 28th APRIL, 2011 Heard Advocate Mr. Kudale for petitioner- defendant. Nobody appears for respondent nos. 1 to 4, though they are served. This Court has also stayed further proceedings in their suit on 22.11.2010. Thereafter, the matter was listed before this Court on 23.12.2010 and the Order Sheet maintained by Shirestedar shows that nobody appeared for petitioners. Advocate Mr. Kudale however states that he was very much present and infact nobody appears for respondents. 2. I do not find it necessary to go into said controversy. Respondent no.1 has filed suit for declaration and injunction. He has contended that present petitioner (defendant) is trying to take advantage of her 2 wp8673.10 relinquishment deed not intended to be acted upon/already cancelled and thereby was trying to sell house in which he has interest. Prayers made are therefore to declare that surrender deed dated 22.01.1997 null and void with injunction to restrain defendant in suit from alienating the house property as described in plaint. 3. Present petitioner pointed out that such suit could not have been valued under Section 6(iv)(j) of the Bombay Court Fees Act as specific provision in the shape of Section 6(iv)(d) is available in statute. On 26.07.2010, Joint Civil Judge, Junior Division, Hingoli has rejected that application. 4. Advocate Mr. Kudale contends that the respondent no.1-plaintiff is trying to protect his interest in suit house and those interest are capable of monitory valuation. He therefore, states that the view taken by trial Court is erroneous and unsustainable. 5. Perusal of provisions of Section 6(iv)(d) of Bombay Court Fees Act shows that in suit for declaration in respect of ownership or nature of tenancy etc in relation to immovable property, the court fees payable is 1/4th of ad valorem fee leviabel for suit for possession on the basis of title of the subject matter. Here, though relief of cancellation of relinquishment deed is claimed, further 3 wp8673.10 relief of injunction is also prayed for. Hence, the respondent no.1-plaintiff is trying to have declaration of his right over the suit house. He is also attempting to save himself from loss. Thus injury to him is capable of monitory evaluation. Trial Court has therefore not correctly appreciated the controversy. 6. In this situation and as the respondents though served are not appearing, I find that the interest of justice can be met with by quashing and setting aside the impugned order dated 26.07.2010 and by restoring application at Exhibit-34 back to the file of trial Court for its fresh consideration after hearing the parties. 7. Accordingly, the order dated 26.07.2010 passed by the Civil Judge, Junior Division, Hingoli below Exhibit-34 in Regular Civil Suit No. 65 of 2009 is quashed and set aside. The said application at Exhibit-34 is restored back to the file of trial Court for taking fresh decision on it after giving parties necessary opportunity to advance fresh arguments. Rule made absolute accordingly. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp8673.10