1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4701 OF 2008 (Smt. Chandrakala Yuvraj Gholse vs. Janabai Gulabrao Punjaram Yeole & Anr. ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DECEMBER 18, 2008. Heard finally Shri Charpe, learned counsel for the petitioner and Shri Doifode, learned counsel for the respondents. When the present petitioner filed Regular Civil Suit No. 43 of 1999 because of notification granting remission of Court fees to women litigants, she was not required to pay Court fees. No objection was raised about it and by judgment dated 11.2.2000, her suit came to be decreed partly. The petitioner – plaintiff then filed Regular Civil Appeal No. 98 of 2004 and the present respondents filed Cross Objection in that appeal. However, the respondents also moved an application for rejection of memo of appeal on the ground that the Court fee has not been paid. It was urged that original notification granting remission issued on 1.10.1994 was modified subsequently by notification dated 23.3.2000 and as such the 2 petitioner ought to have paid court fee on said appeal. The Court below after hearing both sides, has by impugned order dated 22.7.2008 dismissed the appeal and at the same time while disposing of Cross objection, observed that if the appeal is restored subsequently, the respondents will have liberty to re-agitate their cross objection. Relying upon the judgment of this Court In re: Reference under Section 5, Court Fees Act, reported at AIR 1955 Bom. 287, Shri Charpe, learned counsel contends that as the suit was filed appropriately and no court fee was payable at that time, there is no question of paying Court fee subsequently. In view of the judgment, Shri Doifode, learned counsel states that the respondents have no objection for restoration of appeal, provided their Cross Objection is also restored. The same view is taken by the Hon'ble Apex Court in the case of State of Bombay vs. M/s. S.G. Films Exchange, reported at AIR 1960 SC 980. In view of this position, as the appeal is continuation of suit, Court fee when it was not payable at the time of institution of suit, could not have been claimed from the petitioner subsequently 3 at the time of filing of Regular Civil Appeal under Section 96 of Civil Procedure Code. The impugned order dated 22.7.2008 is, therefore, unsustainable. In the result, the appeal disposed of by the trial Court i.e. Regular Civil Appeal No. 98 of 2004 is restored back to the file of 7th Ad-hoc Additional District Judge, Nagpur, for adjudication on merits in accordance with law. In view of the fair opportunity given to present respondents by the lower appellate Court, their Cross Objection is accordingly restored for consideration along with the appeal. The parties to appear before the lower appellate Court on 15.1.2009. Writ Petition is disposed of. No costs. JUDGE *GS.