SUNDERBAI BABULAL RAWALA Vs. BABULAL DEWA RAWALA

JUDGEMENT

(1.) THIS appeal raises a question about the court -fee payable on a petition filed under section 13 of the Hindu Marriage Act, No, XXV of 1955. The learned Additional District Judge, Rajgarh by his order dated 24 -3 -1960 held as follows: - The prayer is for declaration of status, the judgment in the suit, provided without fraud or collusion or a forgery, shall be a judgment in rem. In such an important suit the court -fee to be paid is not equivalent to the court -fee paid on a simple petition. The learned Judge therefore, held that the court -fee of Re. 1 paid on the petition was palpably low and gave the petitioner 15 days' time to make good the deficiency. The petitioner having not complied with this order, the learned Judge dismissed the petition by his order dated 11 -4 -19130. It is indeed a matter of regret that the learned Addition) District Judge did not base his decision on any provision in the Madhya Pradesh Court -fees Act. It is not the importance of an action or the effect of the judgment passed therein which can be the criteria for determining the court -fees chargeable in an action. The liability to pay court -fees can be fastened on a petitioner or suitor only on the basis of specific statutory provision. The court -fee on an application under section 13(1) of the Hindu Marriage Act, 1955 for the dissolution of marriage is not otherwise provided for by the Court -fees Act. There is also no scope for importing the words 'plaint' and 'suit' in section 13 in which only the Afford "application" is used.

(2.) A petition under the Hindu Marriage Act must, therefore, be regarded as a petition of the nature described in Schedule 2, Article 1 (b) paragraph 6 of the M. P. Court -fees Act. I am supported in this view by the decision of the Bombay High Court in Karbhari Vithoba v. Anusuya Karbhari : AIR 1958 Bom. 425 and the Patna High Court in Srikant Chand v. Mat. Ram Mohini : AIR 1959 Pat. 186. This appeal is, therefore, allowed. It is held that the court -fee on Re. 1 paid on the petition is proper. The case is remanded to the Court of first instance for being tried and disposed of in accordance with law. Since the mistake had its origin entirely in the mind of the Court, no costs are awarded. I agree.