IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Writ Petition No. 4774 of 2009 1 Pramod s/o Gokulsing Pardeshi, Aged 43 years, Occupation Business, Resident of “Suman”, C-2-107, Tirupati Park, Gurusahani Nagar, CIDCO, N-4, Aurangabad, 2 Gokulsing s/o Yashwantsing Pardeshi, Aged 69 years, Occupation Pensioner/ Business, Resident of Plot No. 67, CIDCO Service Industries Zone, CIDCO, Aurangabad, 3 Sunanda Chandrakant Gautam, Aged 45 years, Occupation Household, Resident of Plot No. 71/72, Mahalaxmi Colony, Near Thakre Nagar, Mukundwadi, Aurangabad, 4 Nutan Udaysing Dixit, Aged 38 years, Occupation Household, Resident of A-53, N-4, CIDCO, Aurangabad 5 Nayana Jitendrasing Rajput, Aged 35 years, Occupation Household, Resident of A-401/402, Prithvi Apartment, Rameshwadi, Badlapur West, Taluka Ulhaspur, District Thane. Petitioners V E R S U S The State of Maharashtra, Through Collector, Aurangabad Respondent ( 2 ) Mr. P.C. Mayure, Advocate holding for Mr. S.G. Chapalgaonkar, Advocate for the petitioners Mr. D.R. Kale, Government Pleader for the respondent / State CORAM : R.K. DESHPANDE, J. DATED : 22nd June, 2010 ORAL JUDGMENT : 1. This writ petition challenges order dated 16th December, 2008 passed by the learned Civil Judge, Senior Division, Aurangabad, in MARJI No. 430 of 2008. It further challenges the order dated 16th March, 2008, passed below Exh.34, in the said proceedings, by the learned Civil Judge, Senior Division, Aurangabad. The trial Court passed an order dated 16th December, 2008, for issuance of Letter of Administration, in favour of applicant No.1, who is the petitioner before this Court, to manage the property of the deceased Suman Gokulsing Pardeshi, on payment of Court fees, on the value of Rs.6,63,000/- on own bond with one or more surety in the like amount, under Section 291 and 375 of the Indian Succession Act. This order is challenged only to the extent, it requires the petitioner to pay the Court fee, on the value of the property of Rs.6,63,000/-. The petitioner moved an application (Exh.34) for modification of the said order on the ground that the Court fee is payable in terms of Section 29 read with Schedule III of the Bombay Court Fees Act, 1959. This application has been rejected by an order dated 17th March, 2009, holding that by an order passed below Exh.1, the petitioner was required to pay Court fee on ( 3 ) the value of the property of Rs.6,63,000/-. Hence, both these orders are subject matter of challenge in this petition. 2. Notice was issued on 29th September, 2009. The learned AGP accepted the notice for the respondent / State of Maharashtra. By consent of parties, the matter is heard finally. Hence, Rule made returnable forthwith. 3. Mr. P.C. Muyure, Advocate holding for Mr. S.G.Chapalgaonkar, Advocate has urged that the question of payment of Court fees is governed by Section 29 read with Schedule III of the Bombay Court Fees Act, 1959. However, while passing of order below Exh.1, on 16th December, 2008, this aspect has not been taken into consideration. The learned AGP points out that there is a statement made in the order dated 16th December, 2008, in paragraph No. 6 of the Judgment that the applicant is ready to pay Court fee on the same value. Hence, the learned trial Court was right in rejecting the application (Exh.34). 4. This petition challenges both the orders to the extent which requires the petitioner to pay the Court fees on the value of the property of Rs.6,63,000/-. In both the orders there is no provision of Law quoted, on the basis of which, the learned Judge of the trial Court has directed to pay Court fees as per valuation of the property at Rs. 6,63,000/-. If this issue is governed by Section 29 read with Schedule III of the Bombay Court Fees Act, then the same ought to have been considered by the trial Court. Merely because a statement of the applicant No.1 that he is ready to pay the Court fees on the value of ( 4 ) Rs.6,63,000/- would not prevent the petitioner from pointing out that such imposition is governed by the provisions of Law. The trial Court was therefore wrong in holding that the petitioner is required to pay the Court fees on the value of the property. The aspect of applicability of Section 29 read with Schedule III has not been considered. Hence, the jurisdiction exercised by the learned trial Court suffers from material irregularity, resulting in failure of justice. The impugned order therefore needs to be set aside and the matter is required to be remanded back to the trial Court to decide the question of payment of Court fees. 5. In the result, the instant writ petition succeeds. The order dated 16th December, 2008 passed in MARJI No. 430 of 2008 only to the extent it directs the petitioner to pay the Court fees on value of the property of Rs.6,63,000/-, is hereby quashed and set aside along with the order dated 17th March, 2009 passed below Exh.34. The trial Court is directed to decide the question of payment of Court fee according to Law, within a period of four months, after hearing the parties. Rule is made absolute. No order as to costs. ( R.K. DESHPANDE, J. ) srm/WP/4774/09