Bombay High Court

WRIT PETITION 4701 of 2008 on 1 October 1994

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IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH : NAGPUR

WRIT PETITION NO. 4701 OF 2008(Smt. Chandrakala Yuvraj Gholse vs. Janabai Gulabrao Punjaram Yeole & Anr. )

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CORAM : B.P. DHARMADHIKARI, J. DECEMBER 18, 2008.

Heard finally Shri Charpe, learned counselfor the petitioner and Shri Doifode, learned counselfor the respondents.

When the present petitioner filed RegularCivil Suit No. 43 of 1999 because of notificationgranting remission of Court fees to women litigants,she was not required to pay Court fees. No objectionwasraisedaboutitandbyjudgmentdated11.2.2000, her suit came to be decreed partly. Thepetitioner – plaintiff then filed Regular Civil AppealNo. 98 of 2004 and the present respondents filedCross Objection in that appeal.

However, the respondents also moved anapplication for rejection of memo of appeal on theground that the Court fee has not been paid. It wasurged that original notification granting remissionissued on 1.10.1994 was modified subsequently bynotificationdated23.3.2000andassuchthe petitioner ought to have paid court fee on saidappeal.

The Court below after hearing both sides,has by impugned order dated 22.7.2008 dismissedthe appeal and at the same time while disposing ofCross objection, observed that if the appeal isrestored subsequently, the respondents will haveliberty to re-agitate their cross objection.

Relying upon the judgment of this CourtIn re: Reference under Section 5, Court Fees Act,reported at AIR 1955 Bom. 287, Shri Charpe,learned counsel contends that as the suit was filedappropriately and no court fee was payable at thattime, there is no question of paying Court feesubsequently.

In view of the judgment, Shri Doifode,learned counsel states that the respondents have noobjection for restoration of appeal, provided theirCross Objection is also restored.

The same view is taken by the Hon'bleApex 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 iscontinuation of suit, Court fee when it was notpayable at the time of institution of suit, could nothave been claimed from the petitioner subsequently at the time of filing of Regular Civil Appeal underSection 96 of Civil Procedure Code. The impugnedorder dated 22.7.2008 is, therefore, unsustainable.

In the result, the appeal disposed of by thetrial Court i.e. Regular Civil Appeal No. 98 of 2004 isrestored back to the file of 7[th]Ad-hoc AdditionalDistrict Judge, Nagpur, for adjudication on merits inaccordance with law.

In view of the fair opportunity given topresent respondents by the lower appellate Court,their Cross Objection is accordingly restored forconsideration along with the appeal.

The parties to appear before the lowerappellate Court on 15.1.2009.

Writ Petition is disposed of. No costs.

*GS.

JUDGE

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