1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2114 OF 2009 Siddharth Prasanna Munot & another .... PETITIONERS V E R S U S Smt. Beena Prasanna Munot .... RESPONDENT Mr. A.K.Gugale, Advocate for Petitioners. Mr.G.V.Wani, Advocate for Respondent . ........................... [ CORAM : K.K.TATED, J. ] DATE : 23/09/2009. PER COURT : 1. Heard learned counsel for petitioner and respondent. 2. Learned counsel for the petitioner seeks leave to add original defendants in the present Writ Petition as respondents. Leave granted. Amendment to be carried out within two weeks from today. 3. The petitioner/original defendant preferred this Writ Petition under Article 227 of Constitution of India challenging the Order dated 9/1/2009 below Exh. 66 in Spl.Civil Suit No. 70 of 2008 passed by 3rd Jt. Civil Judge (Sr.Division), Ahmednagar rejecting the petitioner’s application for framing preliminary issue on the point of payment of court fees by respondent/original plaintiff. The 2 respondent/original plaintiff filed Spl.Civil Suit No. 70 of 2008 for partition and for other reliefs. In the said Suit, the plaintiff claimed that she is entitled for her share to the extent of Rs. 80,00,000/- and she valued the Suit for the purpose of jurisdiction at Rs. 2,40,00,000/-. Thereafter original plaintiff preferred application below Exh. 5 for injunction restraining original defendant for creating third party interest in the suit property, to withdraw amount from the account of deceased Prasanna from original defendant no. 3 to 6 and 9. The said application below Exh. 5 was partly allowed by the trial Court on 28/4/2008. Thereafter, the petitioner preferred application below Exh. 66 dated 11/7/2008 for framing preliminary issue about the payment of court fees. 4. It is the case of the petitioner that unless and until court fees is paid by the respondent/original plaintiff, Suit can not be proceeded. The learned counsel appearing on behalf of petitioner further submitted that the trial Court has not decided the issue about payment of court fees and same is kept open for deciding at the time of final hearing of Suit. The learned counsel on behalf of petitioner submitted that it is difficult to decide objection regarding payment of court fees by the learned trial Court in the circumstances at the hand is nothing but allowing the plaintiff/respondent to invoke civil jurisdiction of the court at her sweet will which she can not otherwise invoke. He further submitted that issue of payment of court fee non- 3 suits the plaintiff and makes the suit not maintainable. The learned counsel appearing on behalf of petitioner further submitted that in view of Order XIV Rule 2 of Code of Civil Procedure, it is a duty cast upon the Court to decide preliminary issue, which goes to the root of the matter. 5. The learned counsel appearing on behalf of respondent/original plaintiff in support of the order passed by trial Court dated 9/1/2009 submits that respondent no. 1 being woman litigant, is not liable to pay any court fee in view of the policy of Govt. of Maharashtra. In support of his submission, he cited a Judgment of Bombay High Court in the matter of Ramila Rajnikant Kilachand V/s Harsh Rajnikant Kilachand & others reported in 2004 (6) Bom.C.R. 75 In this case, the Hon’ble High Court specifically held that woman litigant claiming partition and declaration of her share in the property of her deceased husband, is not liable to pay any court fees. Head note ‘ A ’ reads as under : “ (A) Bombay Court Fees Act, 1959, Sec. 46 – Payment of Court fee – Exemption to woman litigant – Notifications dt. 1/10/1994 and 23/2/2003 – Suit by wife/widow in individual capacity – Claiming partition and declaration of her share in property of her deceased husband – 4 Objection for non payment of Court fee – Contention that entitled for exemption in Court fees under policy of Government of Maharashtra and Notification dt. 1/10/1994 – Held, plaintiff woman litigant seeking her share in estate of her deceased husband, such matter is covered by explanation and could safely be termed as property dispute arising out of matrimonial relationship. To the extent of plaintiff’s share in property of her husband, she is entitled to seek exemption from payment of Court fee. Exemption will be restricted to plaintiff and her share in estate of deceased ”. 6. Learned counsel appearing on behalf of respondent/original plaintiff further submitted that the trial court kept open the issue of payment of court fees at the time of final hearing of the Suit. If the Court directs to pay the court fees, Respondent/original plaintiff is ready and willing to pay the same. In view of these facts, the learned counsel appearing on behalf of respondent/original plaintiff submits that there is no substance in the present Writ Petition and same is liable to be dismissed. 7. I have gone through a copy of plaint annexed to the petition. It is crystal clear from the copy of plaint that original plaintiff 5 has tentatively valued her share in the suit property to the extent of Rs. 80,00,000/- i.e. 1/3rd of Rs. 2,40,00,000/-, which is valued for the purpose of jurisdiction. 8. In any case, the trial Court specifically held that the issue about payment of court fees can be decided at the time of final hearing of the Suit. It is clear that in a partition Suit, plaintiff has to value his share on tentative basis. In the present case, respondent/original plaintiff has valued her share to the extent of Rs. 80,00,000/- i.e. 1/3rd of Rs. 2,40,00,000/-. If after hearing both the sides at the time of final hearing, Court comes to the conclusion that plaintiff is liable to pay court fees, in that case, plaintiff will be liable to pay the same. 9. In any case, question about payment of court fees can not be termed as preliminary issue in view of Order XIV Rule 2 of Code of Civil Procedure, because same is mixed question of law and facts and that can be decided after leading evidence by both the sides along with other issues. The jurisdiction to try issues of law apart from the issues of facts, can be exercised only when in the opinion of the Court, the Suit could be disposed of on issues of law alone or a major part of the case can be disposed of on issue of law alone. However, deciding an issue as preliminary issue ever on a point of law is discretionary in view of the word “ may ” in Order XIV Rule 2 (2) substituting the word “ shall ” used in unamended order XIV Rule 2 (2) of Code of Civil 6 Procedure. 10. Considering these facts, I do not find any substance in the present Writ Petition and the same is dismissed summarily. [ K.K.TATED ] JUDGE knp/WP2114.09