PUSHPARAJ SURAJPRASAD MODH Vs. SAYYAD ALTAF SAYYAD WAZIR

JUDGEMENT

(1.) RULE. By consent, rule made returnable forthwith. Heard both sides.

(2.) BRIEFLY stated, the respondent Nos. 1 to 7 instituted suit before the Court of 6th Joint Civil Judge (Junior Division), Nagpur, bearing R. C. S. No. 102 of 2000, praying for declaration that they are the owners in respect of the suit land and for mandatory injunction. A preliminary objection was raised before the trial Court, at the instance of the applicant herein. The trial Court, by order dated 17th February, 2000 held that the plaintiffs ought to revalue the suit as per section 6 (iv) (d) of the Bombay Court Fees Act, 1959 and affix the necessary Court fees on or before 24-2-2000. The Counsel for the respondents states that the respondents have complied with these directions. On the other hand, the learned Counsel for the applicant disputes this position. It is, however, not necessary to examine this aspect of the matter.

(3.) THE respondents later on filed review petition before the trial Court which has been decided by the impugned order dated April 6, 2000, vide order below Exh. 31. The applicants, besides resisting the review petition on merits, also opposed the same being barred by limitation. The trial Court, by the order passed on the same day, has, however, condoned the delay for the reasons recorded in the order below Exh. 33. The trial Court, although accepted the fact that the respondent were aware about the factum of order having been passed on 17th February 2000, however, held that since the contents of the judgment were not made available to the respondents, they could not present the review petition within limitation. There is no dispute that the delay is only of the six days in presenting the review petition. Since the said delay has been condoned by the trial Court, though for reason, which, in my view, cannot be said to be a sufficient cause for the simple reason that the fact that the respondents were aware of and had full knowledge about the order having been pronounced on 17th February, 2000, is not in dispute. On these facts, the limitation would start running from the date of knowledge of the passing of the order. Nevertheless, since the trial Court has condoned the delay, which was only of six days, I would prefer to decide the matter on merits. . In so far as the question regarding proper valuation of the suit is concerned, the learned Counsel for the applicant-original defendant submits that the present suit being for declaration and mandatory injunction, was referable to one under section 6 (iv) (d) of the Bombay Court Fees Act, 1959 and ought to have been valued as 1/2 of ad-valorem fees; since besides the declaration, consequential relief of injunction has been prayed for, in view of the third proviso to sub-clause (d) of section 6 (iv) of the Act. In so far as computation for ad-valorem fees is concerned, the learned Counsel relies on Article 1 to Schedule I of the Act.