Maharashtra Court Fees Act: Appellate Court Must Refund Court Fees If Matter Is Remanded Back To Original Court

 Section 15 in Maharashtra Court-fees Act.

15. Refund of Fees paid on memorandum of appeal-

If an appeal or plaint, which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure 1908, is ordered to be received, or if a suit is remanded in appeal, on any of the grounds mentioned in rule 23 of Order XLI in the first Schedule to the same Code for a second decision by the lower Court, the Appellate court shall grant to the appellant a certificate, authorising him to receive back from the Collector or by way of e-payment, in the manner as prescribed by rules the full amount of fee paid on the memorandum of appeal:Provided that if, in the case of remand in appeal, the order of remand shall not cover the whole of the subject-matter of the suit, the certificate so granted shall not authorise the appellant to receive back more than so much fee as would have been originally payable on the part or parts of such subject-matter in respect whereof the suit has been remanded.

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Whether plaintiff is required to pay Advaloram court fees if he has only filed suit for registration of sale deed?

 In this case, plaintiff is seeking appropriate directions to the authorities to register the sale deed dated 1st February, 2011 and thus, it was not a comprehensive suit, being not coupled with any other reliefs. In the given set of facts, the subject matter of the dispute being not susceptible of monetary valuation, it is subject to valuation under clause (j) of Section 6 of the Maharashtra Court-fees Act.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5426 of 2012

Decided On: 05.07.2019

Prakash Nandkishor Bhalke  Vs.  The Joint District Registrar, Photozinco Premises 

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2020(1) MHLJ 646

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Whether litigant who settles case in Lok Adalat is entitled to get refund of 100% Court Fees?

 For the reasons which we have recorded, we are of the view that
subSection
(1) of Section 21 is a case of legislation by incorporation.
Therefore, provisions of Section 16 of the Central Court Fees Act will
have to be read in into subSection
(1) of Section 21 of the 1987 Act.
To conclude, Section 16 of the Central Court Fees Act stands
incorporated in subSection
(1) of Section 21 of the said Act of 1987
and, therefore, when a civil suit is referred to a Lok Adalat which ends
with an Award of the Lok Adalat, the plaintiff is entitled to 100% refund
of Court fees paid in the said suit. Thus, a defendant who files a
counter claim in the suit is entitled to 100% refund of the Court fees
paid on a counter claim which is settled before a Lok Adalat.

Therefore, in the three cases in hand, the learned Trial Judge was not
justified in calling upon the petitioner to deposit 75% of the amount of
Court fees out of the refund amount paid to the petitioner. Hence, we
dispose of the petitions by passing the following order :ORDER
(i) We hold and declare that petitioners being plaintiffs in the
suits settled before the Lok Adalat held under the Legal Service
Authority Act, 1987 are entitled to 100% refund of Court fees.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9864 OF 2017

Maharishi Shankarrao MohitePatil Sahakar Sakhar Karkhana Ltd,  v/s. The State of Maharashtra

CORAM : A.S. OKA &
M.S. SANKLECHA, J.J.
DATED : 2nd APRIL, 2019
 (Per A.S. Oka, J.)
Citation: 2019(5) MHLJ 175,AIR 2019(NOC) 821 Bom

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Whether Widow is liable to pay court fees in partition suit filed against her brother in law?

 A petition for probate of a Will is neither a petition in relation to any 'property dispute' nor does it 'arise out of or concern a matrimonial matter.'

c) A petition for probate of a Will is never a petition in relation to any dispute concerning any property but is in relation to the validity or otherwise of a Will. The judgment of the Supreme Court in the case of Delhi Development Authority v. Mrs. Vijaya Gurshaney and Anr., MANU/SC/0632/2003 : A.I.R. 2003 S.C. 3669, which Deshmukh J. referred to in his judgment of 4/6/2007 clearly brings to light the aforementioned view, wherein it was held that a testamentary Court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will and grant of a probate or Letters of Administration does not confer title to property.

d) As rightly contended by the learned Advocate General, Mr. Ravi Kadam, on behalf of the state, testamentary cases do not arise out of matrimonial matters but rather arise out of 'death'.

C) Furthermore it is pertinent to differentiate between matrimonial matters and matrimonial relationship as the two terms are not synonymous and hence the term 'matrimonial matters' arising in the Notification of 23/3/2000 cannot be replaced by 'matrimonial relationship' so as to bring a petition filed by a widow for probate of her deceased husband's Will, within the ambit of the Notification.

D) Lastly, the words 'property dispute arising out of or concerning matrimonial matters' should be given their plain and simple meaning, that is, a dispute arising between parties to a marriage, (attention may be brought to the reference made by Deshmukh. J. to the Family Courts Act sub-section (1) section 7 to elucidate the meaning of the term 'matrimonial matters') and should therefore exclude testamentary petitions wherein not only is there an absence of a dispute, other than in cases when somebody files a caveat, it is not a matter between two parties to a marriage."

14. Learned Advocate for the plaintiffs, in the matter in hand, has contended that since the husband of plaintiff No. 4 has passed away, her claim for partition and separate possession can be considered to be a matrimonial dispute since she would not have been required to litigate if her husband would have been alive or would have apportioned his share to her before his death. This contention finds an answer in the conclusions of the learned Division Bench in the Girish Case (supra) in paragraph Nos. 26(B) (d), (C) and (D). It is concluded that even testamentary cases with regard to the death of the husband would not come within the meaning of 'matrimonial dispute'.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 1210 of 2016

Decided On: 15.01.2018

Kailash Satyanarayan Khandal Vs. Vijaykumar Satnarayan Khandal and Ors.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2019(1) MHLJ 737

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Whether plaintiff is required to pay ad valorem court fees for getting set aside subsequent sale deed?

The learned counsel for the Petitioner Shri Jamdar submitted that
there   is  no requirement  to  value  the   suit  as  per   Section   6(iv)(ha)  of  the
Bombay Court Fees Act, 1959 as the main substantive relief sought is by way of
prayer clause (A) to the effect that a declaration is sought that the sale deed
dated 31/10/2008 has been got executed from the Plaintiff by fraud, misrepresentation
and by breach of trust taking dis­advantage of the old age and
illness of the Plaintiff and without consideration, and for a declaration that the
said so called sale deed is illegal and suffers from fraud is ab­initio illegal and
not binding on the Plaintiff. The learned counsel would contend that the 2nd
prayer introduced by way of amendment is a consequential as if the 1st prayer
is granted, the said 2nd prayer has to necessarily follow. The learned counsel
would contend that the Bombay Court Fees Act is a fiscal statute and would
have   to   be   strictly   construed,   and   unless   requisites   for   the   application   of
Section   6(iv)(ha)   are   available,   the   said   provision   would   not   apply.     
 It   would   also   apposite   to   reproduce   the   relevant   statutory
provisions of Section 6(iv)(ha) and Section 6(iv)(j) reproduced thus :­
“(ha) for avoidance of sale, contract for sale, etc.
In suits for declaration that any sale, or contract for sale
or termination of contract for sale, of any moveable or
immoveable property is void one half of ad­valorem fee
leviable on the value of the property”
(j) for other declarations
In suits where declaration is sought, with or without
injunction or other consequential relief and the subject
matter   in   dispute   is   not   susceptible   of   monetary
evaluation and which are not otherwise provided for by
this Act ad valorem fee payable, as if the amount or
value of the subject matter was one thousand rupees.
In all suits under clauses (a) to (j) the Plaintiff shall
state the amount at which the values the relief sought,
with the reasons for the valuation.”

As   can   be   seen,   Section   6(iv)(ha)   reveals   that   in   suits   for
declaration that any sale, or contract for sale or termination of contract for
sale, of any moveable or immoveable property is void and stipulates the court
fees payable under the said provision.
Section 6(iv)(j) covers the suits where declaration is sought, with
or without injunction or other consequential relief and the subject matter in
dispute is not susceptible of monetary evaluation and which are not otherwise
provided for by the said Act.  
The submission of the learned counsel for the Petitioner that in the
said suit what was sought was the declaration of the agreement in question as
void which relief is covered by Section 6(iv)(ha) of the said Act. However, in
the instant case, the Petitioner is not seeking any such relief in the suit but only
claiming a declaration that the sale deed dated 15/12/2008 is not binding
upon him.  In my view, the same would not make any difference as what in
effect the Plaintiff is seeking by way of prayer clause A(1) is the avoidance of
the said agreement dated 15/12/2008, and therefore, Section 6(iv)(ha) would
be attracted.   As observed herein above, even if prayer clause A were to be
granted to the Plaintiff, nevertheless the agreement in question in favour of the
Defendant Nos.3 to 5 would have to be set aside, and therefore, the relief

sought by way of prayer clause A(1) would have to be valued in terms of
Section 6(iv)(ha).
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.401 OF 2011

Shri Abdulsattar Gulabbhai Bagwan Vs  Shri Vaibhav Lxmangiri Gosawi, 

CORAM : R M SAVANT, J.

Pronounced on : 01st December 2011
Citation: 2012 (1) Bom C R 1

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Whether issue of court fees can be decided considering pleas made in written statement?

 A reference with profit can be made to the case of S. Rm. S. Sp. Sathappa Chettiar vs. S. Rm. Ar. Rm. Ramananthan Cheettiar, MANU/SC/0003/1957 : AIR 1958 SC 245 the Supreme Court has held that the question of Court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits.

10. The Single Judge of this Court has also taken a similar kind of view in the case of Art Commercial Advertising Pvt. Ltd., Bombay vs. Vicco Laboratories Bombay, MANU/MH/0017/1990 : 1990 Mh.L.J. 463 : AIR 1990 Bom. 123. The plaintiffs in the said matter filed suit in the City Civil Court for declaration that the title and format of the T.V. serial "Yeh Jo Hai Jindagi" exclusively owned to them and the defendants had no concern whatsoever and will have no right to produce or exploit the said serial to another third party under the same title. The consequential relief's were claimed in the shape of injunction restraining the defendants from any manner making the serial under the same title or any episode belonging to the plaintiff to be displayed, which is already made or in respect of all episode which were to be produced in future.

11. The suit became ripe for hearing. The defendants therein raised preliminary objection with regard to maintainability of the suit on the ground of pecuniary jurisdiction of the City Civil Court. The question was raised as to whether the suit filed by the plaintiffs would fall under the provisions of section 6(iv)(b) read with Article 7 of Schedule I, as contended by the defendants or whether it is clearly covered by the provisions of section 6(iv)(j) of the Bombay Court Fees Act, 1959.

12. While dealing with this question, Single Judge of this Court has observed that it is well recognized and settled that for the purpose of determination of crucial aspect of this nature, it is the recital in the plaint that would be foremost consideration for construction where the defence and other aspect would pale in the background. It is further observed that it would be necessary in the context of this background to examine the frame of the suit. It is observed that the cause of action and the relief's sought for are enough to resolve this kind of controversy. It is also said that it may be incidentally observed that whole tenor of the plaint is to be taken into account without concentrating on any stray recitals therein and consequently, it is the foundation or pivot of any plaint that should be examined in the search to find out the real nature of the suit and relief claimed and once that clue is discovered, then incidental reference to other aspect in the plaint would become inconsequential.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Rev. Appln. No. 477 of 2000

Decided On: 29.11.2000

Om Plastic Industries  Vs. Maharashtra State Finance Corporation, Mumbai and others

Hon'ble Judges/Coram:
B.B. Vagyani, J.

Citation:2001(1) MHLJ 560

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How to value suit for partition along with prayer for setting aside alienation?

It was sought to be contended by the learned counsel for the
Petitioner   that   the   Defendant   Nos.1   and   2   by   playing   a   fraud   and   misrepresenting
the Plaintiff have got the agreement executed from them, and
therefore, it would be unjust if the Plaintiff would have to pay   ad­valorem
court fees on the subsequent agreement executed by the Defendant Nos.1 and
2 in  favour  of  the  Defendant Nos.3 to 5.   In my view, that cannot be  a
consideration for deciding as to whether the suit in question is to be valued in
terms of Section 6(iv)(ha) or 6(iv)(j). The same would have to be considered,
as contended by the learned counsel for the Defendants, in the context of the

reliefs sought in the suit.   The Plaintiff, as can be seen in effect is seeking
avoidance of the sale deed executed by the Defendant Nos. 1 and 2 in favour of
the Defendant Nos.3 to 5, and therefore, the Plaintiff would have to value the
said suit in terms of Section 6(iv)(ha) and not in terms of clause 6(iv)(j) as has
been done by him.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.401 OF 2011
Shri Abdulsattar Gulabbhai Bagwan 
versus
 Shri Vaibhav Lxmangiri Gosawi, 
CORAM : R M SAVANT, J.

Pronounced on : 01st December 2011
Citation: 2012(2) ALLMR310

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Whether plaintiff can be exempted from paying ad valorem court fees on ground that he has questioned Sale Deed as being sham and bogus?

The Sale Deed which has been executed by the Defendants No.2 and 3 in favour of the Defendants No.4 and 5 is undisputedly a registered document and clause (4) thereof the consideration has been mentioned and also the fact that the vendors have accepted that payment of the said  consideration has been made to them so also is the Development Agreement. Hence, merely because the Plaintiffs questioned the Sale Deed as being sham and bogus, the Plaintiffs cannot be exempted from the rigours of Section 6(iv)(ha) of the Court Fees Act in the matter of valuation of the suit and payment of the Court Fees.

Bombay High Court

M/S. Prism Reality Through Its ... vs Mr. Govind Yashwant Khalade And ... on 20 January, 2015

Bench: R.M. Savant

Citation;2015(2) MHLJ 472 Bom    

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Appellate forum is determined on basis of valuation in plaint and not on basis of contents of decree

That apart the general proposition of law which has been laid
down by the judgments cited (supra) is that the Appellate forum is determined
on the basis of the valuation as originally set out in the plaint and not on the
basis of the contents of the decree.
 In my view, the application of the said proposition of law results in
uniformity in so far as the Appellate forum is concerned, as otherwise it would
happen that the Plaintiffs may choose one Appellate forum and the Defendants
another. Hence though the valuation for the purposes of court fees would
change in a given case, for the purposes of jurisdiction it would remain the
same. Such a scenario cannot be said to be alien to the legal frame work which
is applicable to the valuation of the suit. The learned Senior Counsel Shri
Kumbhakoni is therefore right in submitting that the valuation a suit for the
purposes of payment of court fees and for the purposes of jurisdiction should
not be confused with each other.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.654 OF 2011
 Sagar Dattatraya Sakhare ]

Versus
 Shri Sanjay Waman Sathe ]


CORAM : R. M. SAVANT, J.

Pronounced on : 26th June 2014
Citation; 2015(3) ALLMR667

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Whether woman litigant is entitled to get exemption from payment of court fees in partition suit if her husband is alive?

Bombay Court Fees Act, (1959) S.46 – Court

fee – Exemption to woman litigant – Challenge

– Wife claimed partition of ancestral properties

while husband was alive – Dispute is not

“matrimonial” – Exemption not justified – Also

because no reasons are assigned for granting

impugned exemption. Vijay Mohan Jagtap Vs.

Sau. Sindhubai Mohanrao Jagtap 2011(6) ALL

MR 498

The facts of the case cited by the Counsel for the petitioner in the case of Prabhakar (supra) are similar to the facts in the present case. This Court, in the cited judgment, has taken a view that if the suit is filed for declaration and partition along with separate possession in respect of ancestral properties, in that case, the dispute is outside the realm of expression "matrimonial dispute".

Bombay High Court

Vijay S/O Mohan Jagtap vs 5 Sau.Sharda Balasaheb Lonkar on 22 September, 2011

Bench: S. S. Shinde

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