Dist. Osmanabad & Ors. v. Dist. Osmanabad & Ors.

plaintiffs is that, it should be declared that, the sale deeds are not binding upon them. It is submitted that, the plaintiffs were bound to pay adequate court fees as per relevant provisions, however, in the present case, only Rs.200/- towards court fees are paid, as it is apparent from perusal of paragraph-11 of the plaint. It is submitted that, the trial Court has not considered the said aspect properly. It is further submitted that, another point was raised before the trial Court about pecuniary jurisdiction stating that, the Court has no jurisdiction to try and entertain the suit, since the current market price of the suit land is more than Rs.5,00,000/-. It is submitted that, the trial Court has not considered the point raised by the petitioner herein about pecuniary jurisdiction at all and rejected the application. The learned Counsel also invited my attention to the provisions of Section 8 of the Bombay Court Fees Act, 1959 and submitted that, 3 wp5206.11 the application filed by the petitioners herein, was maintainable and inquiry ought to have been directed by the trial Court. Therefore, he submits that, this writ petition may be allowed.

On the other hand, the learned Counsel appearing for the original plaintiffs - respondents herein, relying upon the reasons recorded by the trial Court submits that, the trial Court has considered all aspects of the matter and passed impugned judgment and order, therefore, this Court may not interfere in the impugned judgment and order in its extraordinary writ jurisdiction.

Upon appreciating the rival contentions and perusal of the impugned judgment, it appears that, the contention raised by the petitioner about non payment of adequate court fees, has been considered by the trial Court. On careful perusal of the prayers in the suit, one of the prayer is, it should be declared that, sale deeds are not 4 wp5206.11 binding upon the plaintiffs. The plaintiffs have not sought cancellation of the said sale deeds, therefore, in my opinion, contention of the petitioner about court fees has been properly considered and decided by the trial Court.

The another contention of the petitioner is that, the trial Court has no jurisdiction to try and entertain the suit, has not been considered by the trial Court. However, upon perusal of the averments in the application filed by the petitioner herein, it appears that the petitioner herein, in the said application has not demonstrated by placing on record sufficient material, how the trial Court has no jurisdiction to try and entertain the suit. No such exercise/endeavour has been made to show that, the value of the suit property or the subject matter of sale deeds is more than Rs.5,00,000/- and therefore, the concerned Court has no pecuniary jurisdiction to try and entertain the suit. Therefore, in absence of such exercise made by the 5 wp5206.11 petitioner, it could not have been possible for the trial Court to direct the inquiry under Section 8 of the Bombay Court Fees Act, 1959. However, from careful perusal of the impugned judgment and order, it appears that, the said point is not considered at all by the trial Court. Therefore, in my opinion, ends of justice would met, if the petitioner is granted liberty to file another application restricted to the point that, the Court has no pecuniary jurisdiction to try and entertain the suit, however, such application should demonstrate the sufficient averments so as to order inquiry under Section 8 of the Bombay Court Fees Act, 1959, by the trial Court.

Though this Court is of the opinion that, interference is not necessary in the impugned judgment and order, however, the writ petition is disposed of, with liberty to the petitioner to file another application raising point of pecuniary jurisdiction with appropriate averments and sufficient material disclosing that, the trial 6 wp5206.11 Court has no jurisdiction to try and entertain the suit. Such application to be filed within four weeks from today. If such application is filed within four weeks from today, the concerned Court to decide and dispose of the same within four weeks from the date of filing of such application, so as to avoid any further delay in disposing the suit. It is needless to clarify that, all contentions on merits of application are left open to be agitated by the parties before the trial Court. The trial Court will decide the same in accordance with law.

With above observation, the writ petition stands disposed of. [S.S. SHINDE, J.] sut/AUG12