PRABHAKAR MADHAV GADKARI Vs. SUNADA SHARAD KULKARNI

JUDGEMENT

(1.) RULE made returnable forthwith. Heard with the consent of the learned Counsel for the parties.

(2.) BY invoking the writ jurisdiction of this Court, this petition is directed against the order dated 27-11-2003 passed by the learned 6th Joint Civil judge, Junior Division below Exh. 41 in Regular Civil Suit No. 196 of 2000 whereby the plaintiffs are directed to pay the deficit Court fees as per the market value in respect of prayer Clause Nos. 1 and 3 of the plaint.

(3.) MR. Saraf, the learned Counsel for the petitioners contended that the plaintiffs have filed the suit for declaration and permanent injunction and valued the same at Rs. 600/- and paid the Court fees of Rs. 60/- as per section 6 (iv) (j) of the Bombay Court Fees Act, 1959 (for short, the Court fees Act ). He contended that the prayer Clauses 1 and 2 in the plaint show that basically the suit is simplicitor for declaration and injunction and though the right of pre-emption in the alternative has been claimed, no possession is sought and in such circumstances, the impugned order passed by the trial Court directing to pay the Court fees as per section 6 (iv) of the court Fees Act, is not sustainable in law. He contended that the basic dispute is in relation to the common wall and according to the plaintiff this common wall vests in the plaintiffs and the defendant No. 1 has no right or title to the said common wall and since the defendant No. 2 wants to demolish the common wall, it would cause great hardship and loss to the plaintiffs, which cannot be compensated in terms of money and as such the plaintiffs sought the relief in prayer Clauses 1 and 2 for declaration and permanent injunction. He contended that therefore, the suit was valued in accordance with the provisions of secti6n 6 (iv) (j) of the Court Fees act and the impugned order may kindly be set aside.