Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 1043 of 2003 Norbert Reginald Dos Remedios & ors. ...Petitioners V/s. Marshal Mingel Dias & ors. ...Respondents Ms. Gauri Godse for the petitioners. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 16TH FEBRUARY, 2009 : 16TH FEBRUARY, 2009 : 16TH FEBRUARY, 2009 P.C. . None appears for respondents though served. 2. This writ petition under Article 227 of Constitution of India takes exception to the order passed by the Civil Judge, Junior Division at Vasai, Tal. Vasai dated 1st January, 1999 in RCS No. 104/1997. 3. Significantly, the recording of evidence was complete and the Court had heard the arguments in the Suit. Before pronouncing the Judgment,however,the impugned order has been passed whereby the Trial Court has noted that provisions of Section 6(iv)(j) were attracted in the present case for which reason the plaintiffs were obliged to pay Court fees on the market value of structures standing on suit land in respect of 2 which the relief of demolition has been claimed. According to petitioner, Section 6(iv)(j) has no application to the case on hand as no declaration has been claimed by the plaintiffs in the suit as filed. The reliefs in the Suit read thus: "(1) The Hon’ble Court may restrain permanently the Defendants No. 1 to 34 and their agents, servants etc. to do unauthorised non-agricultural construction activities over the suit property. (2) The Hon’ble Court may direct the Defendants No. 1 to 34 to demolish their unauthorised non-agricultural houses over the suit property and make the land suitable for bagayat cultivation. (3) The Hon’ble Court may pass any necessary orders in favour of the Plaintiffs against the Defendants. (4) The cost of this suit may be awarded to the Plaintiffs." 4. Notably, the relief in respect of structures standing on the suit land is ascribable to prayer clause (2). It is not a relief of declaration as such but direction to the defendants to demolish the unauthorised 3 structures. That relief will be covered by Schedule II Article 23(f) of the Court Fees Act and the suit has been valued on that basis. The later provisions deals with relief of mandatory injunction as claimed in the suit referred to above. 5. In the circumstances, I have no hesitation to hold that the Trial Court proceeded on erroneous assumption that provisions of Section 6(iv)(j) of the Bombay Court Fees Act were attracted to the fact situation of the present case. Accordingly, the impugned judgement and order is set aside. Instead, the Trial Court is directed to proceed with the hearing of the suit expeditiously preferably to be finally disposed of on or before 8th May, 2009. Petitioner shall appear before the Trial Court on 27th February, 2009 on which date Trial Court shall notify the matter for arguments on such convenient date so as to ensure that the suit is finally disposed of before 8th May, 2009. 6. Petitioner shall give notice to the defendants and/or their Advocates to appear before the Trial Court about appearance to be made on 27th February, 2009. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]