@ HIGH COURT OF CHHAT’I‘ISGARH AT BILASPUR WP. 1227! N0. 1022(2009 PETITIONERS Godawari Bai and other Versus Sarla Maheshwari and others RESPONDENTS ORDER Post fong -7—2009 Sd/ N.K.Agarwal Judge s I ¢ HIGH COURT OF CHHATTISG H AT‘BILASPUR WP. (227) No. 102*2/2009 ‘ PETITIONERSI 1. Godawari Bai Wd/o. late I iDEFENDANTs Sag/angrayan Maheshwari, aged a150ut 80 years 2. Manoj MaheshWari, agad about 45 yeafg, S/o late Satya mayan Maheshwaii Salljay Maheshwari, aged about §42 years, S/o. Late Satya Narayan Maheshwari, 4. Prateek Maheshwari, S/o late ; Nand ‘Kishore Maheshwari, aged about 19 years ' All resfdents of Ganj Line Versus CO ‘ RESPONDENTS/ 1. Sarla Maheshwari, W/o. Late ‘ PLAINTIFFS Naridkishore Maheshwari, aged about 4O years Sneha Maheshwari, D/o late ,Nalldkishore Maheshwari, aged about 16 years No. 2 minor eing representated through her next friend Smt. Sarla Maheshwari, W/o late Nandkishore Maheshwari 45, Vikash Nagar, Lakholi, Rajnandgaon (CG) (Both the respondents presently residing on this address Single Bench: Hon'ble Mr. 'N.K. Agarwal, JJ ?resént : Shri Sumesh Bajaj, Adv. For the petitioners. ‘ Shri Anoop Majnmdar, Advocate, for respondents. the ORDER ' (Passed on Q 1 day of July, 2009) The instant petition is directed against the order dated 8- 10—2008 (Annexure P- 1) passed by District Judge, Rajnandgab’n in Civil Suit No. EVA/2008‘ whereby and whereunder the application under b Order 7 Rule 11 of C.‘P.C. flied by Th6 petitioners has been rejected. Brief facts giving rise to thi petition are that the plam’affs / respondents filed c1v11 suit for partition of the suit house agamst 1e petitioner claiming 1/8th share Plaintiffs valued the suit for the purpose of court fees and jurlsdiction at Rs l0,00,000/— Le. the value of 1/8th share of suit house and paid the court the of Rs. 59,800/- in terms of Section 7 (vi—a)(a) of the Court fees Act, 1870. ‘ The petitioners by fih‘ng the application under Order 7 Rule ‘171 C.P.C. raised an objectidn regarding payment of ‘ourt fee on e :ound that as per the pain ves t c fee t o a b pai 1n nce it no 7 V1 a( ) o Curt ees Act 180. lea tri ur on appreciatio o th materia n recv submissios mad rejected the app iled b he peoners hr nd held tht he hs s o roperty lfs l dfent t he e of death of lat nd Ki hesn h petitier w lding in H t Snt h d threfo propr cou ie h r C th g lt arment he ourt ough t hve een d accorda Wh secn ( } f the o F , 7 rned al Cot n f e l o ord n e lication f y t tlti eein a a t suit oue i Jmt p of paintif and edans and a t tim e Na 1 shore Mahwa te on as me he i ouse an ere, e rt e as i been . aj d c h tir he veme in pa 3 an and Baj, learne ounsel for te petione hr/ Si referred t arnt ar d 5 subitd hat admittedly on h ate o su, the ‘ pi s se; th ton of court fee to e ided he basi plainlle and, teeore, prop crt e has no n i s it is ale at s. mte t te d f it i lantiffs were not in possesion of the suit hou e quesi is b deC on t i s of t"agation hrf er V ou fe t bee pad a pyab R :7 Ki: ’ 1 lac i. v of /8t sha o h si ous and. tit f. paid 0 s .e alue lh re f te ut he nos hal 3 ‘ 1 ‘ , 6. Per contra, Shri Anoop Ma'umdar referred second Hmb of Section 7 (vi-a)(b) aind submitted that the court fee according to full of such share is only payable when twm conditi ns are satisfied: (i) the plaintiff is out of possessio on the date of suit and t (ii) he c1ajms to be a co—parcener Olffco—owner, and his claim to be a co-parcener or co—owner on such date is denied. Having heard learned courtsel for the parties and after perusing the order impugned and the material on record, it is clear that the plaintili‘was out of possession on the date of suit in terms of Section 7 (Vi—a) (a) of the Court Fee Act but learned ‘trial Court has not dealt with this aspect of the matter as to Whether or not, the claim of plaintiff to be a co-parcener or co—owner on therdate of suit was denied by the defendant or not and its import and effect. Therefore, in my opinion, learned trial court has committed a jurisdictional irregularity in passing the order impugied. The order impugned deserves to be quashed and is hereby quashed and the matter is remitted back with a direction that the trial Court shall decide the question of payment of " court fee in accordance with the provisions contained in section 7 (vi—a) of the Court Fee Act after aif‘ordmg due opportunity of hearing to both the parties. The trial Court shall keep in mind that the question of court fee is to be decided at the earliest opportunity. The petition is allowed. However, no order as to costs. Sd/— 1 N.K.Agarwal Judge