-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 372 OF 2011 1. Floriano Gambeta Da Piedade Avila, S/o. late Inacio Caetano De Avila, aged about 62 years, married, landowner, r/o. H. No.198, Near Peoples High School, Mala, Panaji, Goa. 2. Marilia Cunhae Avilla, d/o. Joaquim Joao Da Cunha, aged about 56 years, occupation service, r /at H.No.198, Near Peoples High School, Mala, Panaji, Goa. (since deceased represented through legal heir) 2(a) Shri Rui Caetano Sebastiao De Silva, S/o. Floriano Gambeta Da Piedade Avila, aged 34 years, occupation, service, r/at H.No.198, Near Peoples High School, Mala, Panaji, Goa. …. Petitioners V e r s u s 1. Jose Belamino Antao, S/o. late Mariano Antao, aged about 70 years, married, H.No.E-39, Opp. Arcanjo Menezes Hospital, run Bernardo da Costa, Margao, Salcete, Goa. 2. Smt. Blaise Antao, wife of Jose Belamino Antao, aged about 65 years, occupation housewife, r/at H.No.E-39, Opp. Arcanjo Menezes Hospital, run Bernardo da Costa, Margao, Salcete, Goa. …. Respondents Shri Nitin Sardessai, Advocate for the Petitioners. Shri S. S. Kakodkar, Advocate for the Respondents. -2- Coram :- F. M. REIS, J Date : 29 th September, 2011. ORAL JUDGMENT Heard Shri Nitin Sardessai, learned Counsel appearing for the Petitioners and Shri S. S. Kakodkar, learned Counsel appearing for the Respondents. 2. Rule. Heard forthwith with the consent of the learned Counsel. Shri S.S. Kakodkar waives service on behalf of the Respondents. 3. The above petition challenges the Order dated 3/06/2011, passed by the learned Civil Judge, Junior Division, Margao, whereby an application filed by the Petitioners to cross-examine the valuer appointed by the Court in connection with the valuation of the suit property for the purpose of court fees came to be rejected. Consequently, the Petitioners were directed to value the suit in terms of the Commissioner's report and to pay the requisite Court fees within a period of ten days. While disposing of the application filed by the Petitioners, the learned Judge was considering the claim of the Respondents that the suit was undervalued and, as such, the Petitioners should be directed to pay requisite Court fees after correct valuation. After the matter was remanded by this Court by Order dated 10.11.2010, Shri K. P. Prabhudessai, was appointed as a Commissioner to prepare the valuation report and has valued the property at Rs.28,46,811/-. 4. The learned Judge has come to the conclusion that the said -3- Commissioner was appointed under Section 9 of the Court fees Act and not under the provisions of Order 26 of the Civil Procedure Code. The learned Judge, as such, refused to grant permission to the Petitioners to cross examine the said Commissioner. The learned Judge has also noted that under Section 12 of the Court Fees Act, every question relating to the valuation for the purpose of determining the amount of any fee chargeable shall be decided by the Court in which such plaint or memorandum as the case may be, is filed and such decision shall be final as between the parties to the suit. As such, though a Commissioner has been appointed to carry out such valuation, it does not preclude the parties to adduce evidence to dispute the correctness of such report. In the present case, the learned Judge whilst refusing liberty to the Petitioners to cross examine the Commissioner, did not consider or find it appropriate to allow the parties to adduce further evidence if they so desire in support of their rival contention to dispute the correctness of such report. Both the parties should be given liberty to adduce documentary evidence in support of their contentions and the learned Judge shall consider such material adduced by the parties as well as the report of the Commissioner and decide the matter in controversy in accordance with law. 5. As such, in view of the above, I find it appropriate that the impugned Order passed by the learned Judge be quashed and set aside and the matter be directed to be decided afresh by the learned Judge after hearing both the parties. 6. In view of the above, I pass the following : -4- O R D E R (i) The impugned order dated 3/06/2011 is quashed and set aside. (ii) The Petitioners are at liberty to file a valuation report in respect of the suit property along with any other relevant documents in support of their contention. (iii) The Respondents shall also be at liberty to produce any documents in rebuttal to such material produced by the Petitioners. (iv) After the said documents are produced by both the parties, the learned Judge shall decide the dispute with regard to the valuation of the suit property for the purpose of Court fees by considering all the documents on record including the Commissioner's report after hearing the parties in accordance with law. (v) The Petition stands disposed of accordingly with no Orders as to costs. (vi) Rule is made absolute in the above terms. F .M. REIS, J. arp/*