MAHENDRA CHUNILAL MEHTA Vs. RAJENDRA CHUNILAL MEHTA

JUDGEMENT

(1.) BY this Chamber Summons the applicants are seeking to challenge the order dated 2-12-2002 passed by the Taxing Master. There is delay of only one day. Affidavit in support of this Chamber Summons has set out sufficient cause for one days delay. That averment has gone uncontroverted. In the circumstances, delay of one day is condoned.

(2.) THE applicants and opponents were party to Suit No. 2502 of 1988 in which consent terms came to be filed on behalf of the plaintiffs and defendant Nos. 4 and 5. Learned Single Judge of this Court on 4-3-2002 took the consent terms on record and decreed the suit in terms of the consent terms against defendant Nos. 4 and 5 without prejudice to the rights of other defendants. It is relevant to note that the applicants in this Chamber Summons are defendant Nos. 2 and 3 in that suit. The applicants carried the matter in appeal against the order dated 4-3-2002 being Appeal No. 678 of 2002. In the appeal it is clearly mentioned that the applicants were aggrieved by the order dated 4-3-2002 passed by the learned Single Judge in the said suit taking on record consent terms executed between the plaintiffs and defendant Nos. 4 and 5. To put it differently, they have prayed for setting aside only that part of the order dated 4-3-2002. When the said appeal came up for hearing before the Division Bench of this Court on 30-9-2002, objection regarding Court fees was raised as the applicants had affixed Court fees of Rs. 200/- whereas according to the registry of this Court the applicants were liable to pay ad valorem Court fees in terms of Article 7 of Schedule I of the Bombay Court Fees Act, 1959. Whereas the applicants paid Court fees on the premise that the appeal was not from a decree or an order having a force of the decree in terms of Article 18 of Schedule II of Bombay Court Fees Act, 1959. The Division Bench of this Court by order dated 30-9-2002 though it appropriate to refer the matter to the Taxing Officer. Pursuant to the said reference, enquiry has been held and the Taxing Office has rejected the stand taken by the applicants and held that the applicants are liable to pay Court fees on ad valorem basis in terms of Article 7 of Schedule I of the Bombay Court Fees Act, 1959.

(3.) ACCORDINGLY, the question that arises for consideration in the present case is whether the applicants were liable to pay Court fees as per Article 7 of Schedule 1 or Article 18 of Schedule II of the Bombay Court Fees Act, 1959.