Kumar Nemu Navale v. Vasant Nemu Navale & Ors.
Case at a glance
- Decided
- 03 May 2011
- Bench
- A S OKA
Outcome
Allowed
iv) Appeal is allowed in above terms with no order
Provisions considered
Key paragraphs
- Para 55. On an application at Exhibit 46, the only order which the trial Court could have passed was of holding an enquiry under Section 8 of the said Act. Without holding an enquiry, there was no occasion for the learned trial Judge to record a…
Judgment
Mr. Akshay Shinde i/b Ashutosh M. Kulkarni, for the Appellant. Mr. Nilesh Wable i/b Umesh Mankapure, for the respondent NO.1. CORAM: A. S. OKA, J. DATED: 3rd May, 2011 P.C.
Heard learned counsel appearing for the appellant and learned counsel appearing for the first respondent.
Considering the nature of the impugned order, appeal need not be kept pending. Hence the Appeal is taken up for final hearing.
The appellant is the plaintiff and respondents are the defendants. Appellant filed a suit for partition, declaration, injunction and for other consequential reliefs. First respondent made an application in the said suit at Exhibit 46 invoking section 8 of the Bombay Court Fees Act, 1959 (hereinafter referred as “the said Act”). Prayer made in the said application was for holding an enquiry as to whether the valuation of the suit was proper. On 20th December, 2010, the 2 FA 516 OF 2011 learned Judge passed a cryptic order on the said application at Exhibit 46. The said order reads thus, “Perused the application and say. The Suit valuation is not proper. Hence the application is filed. Application is allowed”.
On the same day, by a single line order, the learned Judge rejected plaint in view of the aforesaid order passed at Exhibit 46.
Operative part
On an application at Exhibit 46, the only order which the trial Court could have passed was of holding an enquiry under Section 8 of the said Act. Without holding an enquiry, there was no occasion for the learned trial Judge to record a finding that the valuation of the suit was improper. The appellant-plaintiff was never required by the Court to pay deficit Court fee as contemplated by clause (c) of Rule 11 of Order VII of the Code of Civil Procedure, 1908. Hence, it was not proper on the part of trial Court to reject the plaint. Hence, the appeal must succeed and I pass the following order. ORDER i) The impugned order dated 20th December, 2010 by which the plaint was rejected is quashed and set aside and the suit is restored. The order passed on the Application at Exhibit 46 is set aside and even the said Application is 3 FA 516 OF 2011 restored. ii) The application made by the first respondent at Exhibit 46 is allowed by directing the trial Court to hold an enquiry in accordance with section 8 of the Bombay Court Fees Act, 1959. iii) Issue regarding the correctness of the valuation of the suit is kept open. iv) Appeal is allowed in above terms with no order as to costs. v) Civil Application No.919 of 2011 does not survive and the same is disposed of. vi) If there was any interim relief operating till the rejection of the plaint, the same shall also stand restored.
(A. S. OKA, J.)
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: iv) Appeal is allowed in above terms with no order
Which statutory provisions did this judgment involve?
Fees Act, 1959; Code of Civil Procedure, 1908.
Which court decided this case, and when?
Bombay High Court, on 03 May 2011. The bench was A S OKA.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.