TARA CHAND Vs. DEEPAK AND ORS.

JUDGEMENT

(1.) THIS revision petition is filed against orders dated 13.10.2010 and 28.03.2011, directing the petitioner to deposit the proper court fee calculated on the basis of valuation fixed i.e. 1.5 lac.

(2.) ACCORDING to the petitioner, he filed a suit for partition in OS No. 60/Civil and the 6th defendant raised a plea including, as to whether the plaintiff has properly valued the suit for court fee and jurisdiction and thereafter he filed an application for rejection of the plaint or in the alternative prayed for direction to the plaintiff to deposit the court fee as per the value of the suit in OS No. 60/Civil. The trial Court (learned Second Additional District Judge, Jammu) by order dated 13.10.2010 allowed the application and directed the petitioner to deposit the proper court fee calculated on the basis of valuation fixed by him i.e. 1.5 lac and the court fee was directed to be deposited before the next date of hearing. The petitioner filed an application seeking modification of the said order which was also rejected by the trial Court on 28.03.2011. Both these orders are challenged before this Court in the civil revision, contending that Section 7(iv)(b) of the Court Fee Act clearly states that to enforce a right to share in joint family property -to enforce the right to share in any property on the ground that it is joint family property, the Court fee shall be paid under Section 7(iv)(b) and the said provision does not apply to a suit for partition by metes and bounds. According to the petitioner, he has to pay the Court fee according to his share at the time when decree is passed and this Court has already given a judgment in the judgment reported in, 1988 KLJ 600 (Triloki Nath Kotha v. Jawahir Lal Kotha and Ors.) wherein a specific issue was raised with regard to the payment of Court fee in a suit for partition i.e. "whether suit has to be valued on the entire property or to the extent of the share claimed", and this Court held that valuation and Court fee is required to be fixed according to the share claimed. According to the petitioner the said judgment was not considered by the trial Court and, therefore, the direction issued by the trial Court to pay the Court fee is unsustainable.

(3.) TODAY also there is no representation, therefore, this Court is deciding the matter on merits.