NARSHIBHAI NANJIBHAI PADARIYA Vs. KANCHANBEN RAJABHAI PADARIYA

JUDGEMENT

(1.) RULE . By way of the present petition under Articles 226 and 227 of the Constitution of India, the petitioners challenge the order dated 25 . 6 . 2013 passed below Exh . 121 passed by the learned Principal Senior Civil Judge, Dhoraji in Special Civil Suit No . 21 of 2010 to the extent of direction given to the parties to produce the court fees within a period of ten days as per the valuation under the suit valuation on the property coming to the share of the respective parties under compromise Exh . 121 .

(2.) THE facts in brief leading to filing of the present petition is that the parties are inter -se relatives and are family members . The respondents -plaintiffs had instituted the Special Civil Suit No . 21/2010 for partition of the property which comes to the share of deceased Rajabhai Nanjibhai Padariya . The suit was contested by petitioners No . 5/3/1 to 5/3/3 . After lot of deliberations by the elders in the family and advocates of the parties, an amicable settlement was arrived at and Memorandum of Compromise on 7 . 5 . 2013 was presented . The petitioners have taken permission of the court to settle the matter on behalf of the minor petitioners No . 5/3/2 and 5/3/3 through their natural guardian and mother - petitioner No . 5/3/1 . The settlement dated 7 . 5 . 2013 duly signed by all the parties to the suit and their respective Advocates was submitted before the trial court at Exh . 121 inter alia praying to pass a decree in terms of the settlement . The trial court passed an order dated 7 . 5 . 2013 below Exh . 115 and adjourned the matter so as to ascertain whether the settlement is in the interest of the minors and/or whether the settlement is lawful and legal . The trial court also passed order below application Exh . 121 and adjourned the matter to see whether the compromise arrived at is lawful and also to look into the issue of court fees . Being aggrieved by these orders, the petitioners filed an application before the District Judge, Rajkot to transfer the case to another court so that no undue hardship is caused to the parties and the matter is amicably resolved . The matter was accordingly transferred to another court . Another application dated 10 . 5 . 2013 was made before the trial court to proceed with the matter during the summer vacation as the matter is settled between the parties . Thereafter the matter was kept for further hearing on 24 . 5 . 2013 . The petitioners No . 5/3/1 to 5/3/3 had withdrawn their counter claim accordingly . The matter was adjourned from time to time on the ground that the issue regarding court fee stamp on the counter claim is yet to be decided . Since the trial court was not proceeding with the matter, petitioners No . 5/3/1 to 5/3/3 were constrained to file Special Civil Application No . 9863 of 2013 wherein the High Court, by its order dated 18 . 6 . 2013 directed the trial court to expedite hearing of application Exhs . 115 and 121 and dispose of the issue involved in the suit on or before 28 . 6 . 2013 and observed that no court fees is required so far as the counter claim is concerned as the same is not pressed at an earlier stage . Accordingly the trial court allowed the Application Exh . 115 vide order dated 24 . 6 . 2013 permitting the petitioner No . 5/3/1 to settle the matter . Subsequently on 25 . 6 . 2013 the trial court allowed the application Exh . 121 by accepting the compromise arrived between the parties and directed the parties to produce the court fees within ten days as per the valuation under the suit valuation on the property coming to the share of the respective parties under the compromise and on production of the court fees the decree would come into force . Hence this petition .

(3.) LEARNED Advocate for the petitioners has submitted that the trial court committed grave error in law in giving direction to the parties to produce the court fees as per the valuation under the Suit Valuation Act on the property coming to the share of the respective parties . He has submitted that no court fee is payable when the parties have arrived at a Memorandum of Compromise under Order 23 Rule 3 of the Code of Civil Procedure, 1908 (for short, the Code) and therefore, the direction given by the trial court is illegal and without any jurisdiction .