SHRIPAT GOVINDJI SUKE Vs. SHRIMATI SARASWATIBAI SRIPAT

JUDGEMENT

(1.) This revision arises out of an order of the Special Officer as a Taxing Officer, by which the applicant has been called upon to pay a deficit court-fee of Rs. 1,746.25 nP. as a condition precedent to the registration of the second appeal in this Court. As the revision raised a point as to the interpretation of section 6(ii) of the Bombay Court fees Act, 1959, of frequent occurrence, before one of us (Abhyankar J.), the matter was referred to be decided by a Division Bench, and we have to deal with it under those circumstances.

(2.) A few facts giving rise to the question raised may now be stated. The question has arisen in the second appeal filed by the appellant. The appeal has arisen out of a suit for maintenance filed by the opponent Saraswatibai who is the wife of the applicant. In this suit, Saraswatibai claimed Rs. 7,500 by way of arrears of maintenance and future maintenance at the rate of Rs. 125 per month or Rs. 1,500 per year. The trial Court decreed the plaintiff's claim for arrears to the extent of Rs. 4,000 and also granted yearly maintenance at the rate of Rs. 1,200 per year. Against this decree, the applicant preferred a first appeal in the lower appellate Court. The opponent preferred cross-objections. The first appeal filed by the applicant was dismissed and the cross-objections were allowed fully. Thus, the result of the decree passed by the lower appeal late Court was that the opponent was granted Rs. 7,500 by way of arrears of maintenance and also a decree for yearly maintenance of Rs. 1,500 as claimed by the plaintiff. In other words, the plaintiff was given full relief as claimed by her in the plaint. The applicant filed a second appeal and in this appeal he has paid court-fees on Rs. 7,500 on account of the sum awarded as arrears of maintenance and also paid court-fees on Rs. 1,500 which is the yearly amount of future maintenance granted by the lower appellate-Court.

(3.) After the appeal was filed, an objection was raised about the adequacy of court-fees payable in respect of the claims agitated in this litigation. It may be mentioned that the opponent had filed the suit in forma pauperis and apparently had not paid any court-fees on any of the reliefs. The Special Officer in his order under challenge has held that under the proviso to section 6(ii) of the Bombay Court-fees Act, the appellant as a defeated defendant was liable to pay court-fees calculated under the proviso both in respect of the decree of the first Court as well as of the first appellate Court. That sum came to Rs. 1,746.25 nP. and though it has been found by the Special Officer that the court-fees have been properly paid by the applicant on the memorandum of second appeal filed in the High Court, the applicant was not entitled to have his second appeal registered unless the applicant paid the deficit court-fee of Rs. 1,746.25 nP. according to the liability created by the proviso to section 6(ii) of the Bombay Court-fees Act. We have to examine the correctness of this decision of the Special Officer.