Bombay court fees Act-property disputes would be restricted only those concerning or arising out of matrimonial matters.

d) As rightly contended by the Learned Advocate General, Mr. Ravi Kadam, on behalf of the state, testamentary cases not arise out of matrimonial matter but rather arise out of 'death'

C) Further more it is pertinent to differentiate between matrimonial matters and matrimonial relationship as the two term are not synonymous and hence the term 'matrimonial matters' arising in the Notification of 23/03/2000 cannot be replaced by 'matrimonial relationship' so as to bring a petition filed by a widow for probate of her deceased husband's Will within the ambit of the Notification.

D) Lastly, the words "property dispute arising out of or concerning matrimonial matters' should be given their plain and simple meaning, that is, as dispute arising between parties to a marriage, (attention may be brought to the reference made by Deshmukh J. to the Family Courts Act 6 Sub-Section 1 section 7, to elucidate the meaning of the term 'matrimonial matters') and should therefore exclude testamentary petitions wherein not only is there an absence of a dispute, other than in cases when somebody files a caveat, it is not a matter between two parties to a marriage

11. In so far as the instant matter is concerned, Clause (A)(c) and (d) and Clause (B)(a) are relevant. What can be culled out from Clauses (c) and (d) is that the terms "property disputes" would be restricted to those concerning or arising out of the matrimonial matters and would hence exclude petitions for probate of Wills. By Clauses (B)(a) what has been laid down is that interpreting the words "property disputes" by giving an extended meaning would tantamount to indulgence in exercise of legislation in the garb of interpretation. Hence, the Division Bench in terms has laid down that the property disputes would be restricted only those concerning or arising out of matrimonial matters.

Bombay High Court

Smt Subai Mura Rabari vs 6) Anirudha Mura Rabari on 19 April, 2011

Bench: R. M. Savant

2011(4)ALLMR111, 2011(3)BomCR678, 2011(4)MhLj723

1 The above Notice of Motion has been filed by the Defendant Nos.1

to 4 and 6 to 9 inter alia claiming the following reliefs: 3 nm-1910-06-judgment.sxw

(a) That this Hon'ble Court be pleased to reject the plaint in Suit No.3724 of 1996 for want of payment of Court fees.

(b) That pending the hearing and final disposal of the present Notice of Motion all the proceedings in the above suit No.3724 of 1996 be stayed.

2 In the context of the reliefs sought as above it would be apposite to

consider the gamut of the above Suit. The above suit has been filed by the

Plaintiffs claiming the substantive reliefs as mentioned in prayer clauses (a) and

(b). The said prayer clause (a) and (b) are reproduced herein under :

"(a) That this Hon'ble Court be pleased to declare that

the Defendant Nos.1 to 9 have no right title and/or

interest in the suit property i.e. land bearing Survey

No.148 Hissa No.part CTS 168, admeasuring 60

Acres, 23.3/4 Gunthas as more particularly

mentioned in Schedule 'A' annexed to the plaint;

(b) That all the consent-terms/decree obtained by

Defendants 1 to 9 as detailed in Exhibit 'O' as well as

all the purported agreements between defendants

interse as enlisted in Exhibit "O" hereto to the Plaint

in respect of suit property i.e. land bearing Survey No.

148 Hissa No.Part CTS 168 lying, being and situated

at Village Megathane, Taluka Borivali, Mumbai

suburban District as described in schedule Exhibit 'A' 4 nm-1910-06-judgment.sxw

be declared as null and void, illegal, not binding upon

Plaintiff and same be set aside."

3 As can be seen from the aforesaid prayer clauses, the Plaintiff seeks

to challenge the consent terms / decree which is in favour of the Defendant Nos.1

to 9 in terms of Exhibit-O as well as the agreements between the Defendants

inter-se in terms of Exhibit O to the Plaint in respect of the suit property. The

Plaintiff claims that she along with her husband Mura Sura Rubai, whose

whereabouts are not known for more than 18 years and who is presumed to be

dead, used to cultivate the land bearing Survey No.148(part) CTS No.168

admeasuring 60 acres 23.3/4 gunthas situate at Village Magathane, Taluka

Borivili, Mumbai. The Plaintiff claims that she is a declared owner of the suit

property by virtue of the order under Section 32(G) of the Bombay Tenancy and

Agricultural Lands Act 1949 and that the certificate have been issued to her

under Section 32(M), after she paid the purchase price. The suit though filed in

the year 1996, has not progressed. In fact ,the issues in the suit have also not

been framed.

4 In the Affidavit in support of the above Notice of Motion, the

Defendants have placed reliance on the Notifications dated 1-10-1994 and

23-3-2000 issued by the State Government. The said Notifications have been

issued by the State Government in exercise of powers conferred by Section 46 of

the Bombay Court Fees Act, 1959. By the said Notifications, the Government of

Maharashtra remitted the fees payable by Women Litigants on any of the plaint, 5 nm-1910-06-judgment.sxw

applications, petitions, memorandum of Appeals or any other documents

specified in the first and second schedule to the said Act, to be filed in any Civil,

Family or Criminal Courts. The relevant extract of the said Notification is

reproduced herein under:

"Now, therefore, in exercise of the powers conferred by Section 46 of the Bombay Court Fees Act, 1959

(Bo,. XXXVI of 1959), the Government of Maharashtra hereby remits the fees payable by women litigants on any of the plaints, applications, petitions, Memorandum of appeals or any other documents specified in the First and Second Schedules to the said Act, to be filed in any Civil, Family or Criminal Courts in respect of the cases relating to (a) maintenance, (b) property disputes, (c) violence and (d) divorce."

Thereafter, by Notification dated 23-3-2000, the said Notification

dated 1-10-1994 came to be amended in as much as an explanation came to be

added to the said Notification dated 1-10-1994. By the said explanation the

expression of the meaning of the word "property disputes" appearing in the

Notification dated 1-10-1994 was clarified. The relevant extract of the said

Notification is reproduced herein under :

"In the said Notification, the following Explanation shall be added at the end, namely:-

"Explanation - The expression 'property

disputes' shall mean property disputes arising out of and concerning matrimonial matters"

5 Relying upon the said Notifications mentioned herein above, it is 6 nm-1910-06-judgment.sxw

the contention of the Defendants that the Plaintiff is not exempted from payment

of Court Fees as the subject matter of the suit and the reliefs claimed therein do

not fall in the exception clause as mentioned in the Notification dated 1-10-1994

as explained by the Notification dated 23-3-2000. On behalf of the Defendants

Shri Kapadia, the Learned Counsel submitted that since by the Notification dated

23-3-2000, the meaning of the expression property disputes has been explained

and if that be so, the Plaintiff is not entitled for exemption from payment of

Court Fees and would be therefore, liable to pay Court fees on the claim made in

the suit. The Learned Counsel drew my attention to the text of both the

Notifications and the objects and reasons behind their issuance. The Learned

Counsel in support of his submissions relied upon a Division Bench Judgment of

this Court reported in 2008 ALL MR 306 in the matter of Girish K. Munshi

(Deceased). The said Division Bench Judgment arose out of a reference made to

the Division Bench by a Learned Single Judge of this court, the said Judgment

would be adverted to in the latter part of this Judgment.

6 On behalf of the Plaintiff reliance is placed on the Judgment of a Learned

Single Judge of this Court H.L.Gokhale, J. (as his Lordship then was) in Jyoti

Doshi Vs. M/s. Hindustant Hoisery Mills reported in 2000(4) MHLJ page 228

relying upon the said Judgment, it is sought to be contended by the Learned

Counsel appearing for the Plaintiff that as held by the Learned Single Judge in

the said Judgment the Notification dated 23-3-2000 explaining the expression

"property disputes" would have no effect as regards payment of Court fees in the

instant suit as the instant suit has been filed in the year 1996 i.e. prior to the 7 nm-1910-06-judgment.sxw

Notification dated 23-3-2000. The Learned Counsel submitted that it has been

held in the said Judgment that matters filed prior to 23-3-2000 would be

governed by the Notification dated 1-10-1994 and it is only the matters filed

after 23-3-2000 which would be governed by the explanation given in the

Notification dated 23-3-2000. In the context of the reliance placed by the

Learned Counsel for the Plaintiff on the said Judgment in Jyoti Doshi's case

(Supra), the facts involved in the said case, the submissions advanced and

ultimate directions that were issued would have to be considered. In so far as the

facts in the said case are concerned, the suit in question therein was a summary

suit filed by the Plaintiff (Jyoti Doshi) for the recovery of the amount advanced

by way of loan to the Defendant Company. The Plaintiff had sought a decree for

the sum of Rs.1,06,375/- together with interest @ 18% p.a. on the principle

claim of Rs.70.000/- from the date of filing of the suit till payment or realization.

In the plaint, it was averred to the following effect:

"The Plaintiff being a female litigant in the present suit is exempted from

payment of Court fees and hence no Court fees have been paid.

The suit was accordingly duly numbered without payment of Court fees.

During the course of the hearing of the Summons for Judgment filed in the said

suit, the Defendants in the said Suit took an objection that the said suit

essentially concerns a commercial transaction and the exemption Notification

would therefore not apply to it. The question, therefore, cropped up whether the

Plaintiff was exempted from payment of Court fees under the Notification dated

1-10-1994, with respect of the said summary suit filed by her, the Learned Judge 8 nm-1910-06-judgment.sxw

hearing the said suit accordingly had issued notice to the Learned Advocate

General. As regard the said issue, an Affidavit was filed by the State Government

of the Under Secretary of the concerned department, wherein the reasons for

issuing the said Notification dated 1-10-1994 was set out. In view of the fact that

the number of plaints by women litigants were filed as summary suits and suits

seeking specific performance, the same were kept under objection to await the

clarification from the Court, in view of the subsequent Notification dated

23-3-2000. In view of the said issue, the Learned Single Judge in Jyoti Doshi's

case (supra) requested the Learned Counsel appearing for the parties to address

him on the following two issues :

"(1) What is the scope and applicability of the exemption Notification dated October 1, 1994 bearing No. ST>P . 1994 CR/859/M-1 ?

(2) Whether the said Notification dated 23rd March, 2000 can in any way restrict and/or govern and/or control the exemption granted earlier by Notification dated 1st October 1994 with regard to payment of Court Fees by women litigations ?"

7 The Learned Counsel appearing on behalf of the women litigant

submitted that the property dispute as existing in the unamended Notification

dated 1-10-1994 cover all types of property disputes which were espoused by

women litigant, whereas it was contended by the Learned Counsel appearing for

the Defendants in the said case that the term property dispute will have to be

restricted to the disputes which arise out of and which are concerning the

matrimonial matters only. The Learned Advocate General submitted that the 9 nm-1910-06-judgment.sxw

expression property dispute appearing in the Notification dated 1-10-1994 could

not be utilized for disputes covering business, commerce and trade and the entire

clause had to be read ejusdem-generis. Relying upon the Affidavit filed by the

Under Secretary, the Learned Advocate General submitted that the intention was

not to grant exemption to property claims of all types. He submitted that the

amendment had become necessary to prevent persons from taking unfair

advantage of the concession. The Learned Advocate General relied upon the

Judgments of the Apex Court in support of his submissions. However, having

made the said submissions, it appears that the Learned Advocate General

submitted that his instructions were that even the pending matters had to be

covered under the amended Notification and that at all material times, the State

Government never intended to cover matters governing commerce, trade and

business, yet he would leave it to Court to pass appropriate orders governing the

cases which had already come to be filled. It would be relevant to note that this

Court in the said case was also concerned with the fact that the earlier

Notification was issued way back on 1-10-1994 and the new Notification had

been issued after 5 years and 5 months after the earlier Notification and in the

mean time the Notification dated 1-10-1994 had come to be relied upon by

number of women litigants and the same had also been considered in a number

of Judgments/orders passed by various Learned Judges of this Court. The

Learned Single Judge thereafter adverted to the various Judgments of the

Learned Single Judges of this Court which have been referred to in the

Judgment. After adverting to the said decisions rendered by the Learned Judges, 10 nm-1910-06-judgment.sxw

the Learned Single Judge considered the submissions made by the learned

Counsel and concluded as under:

19. I have considered the submission made by the counsel for the women litigants as well as the counsel for the defendants as also by the Advocate General..

(i) As far as the two issues which have been framed by me are concerned, my answer n Issue No.2 will be that the Notification dated 23rd March,2000 will not restrict and/or govern and/or control the exemption granted by the earlier Notification of 1st October, 1994 with regard to payment of court fees to women litigants provided those are suits filed by women litigants in their personal capacity. The suits filed by them as directors of companies or as partners of firms will not make them eligible to get the exemption in the pending matter.

(ii) As far as the applicability of the Notification of 1st October, 1994 is concerned, which is issue No.1, it will continue to apply to the suits which are already filed and which are pending in this court though subject to the above, namely that those suit which are filed by women directors of companies or women partners of partnership firms will not make them eligible for exemption under the Notification."

(iii) The answers to these two issues will grant exemption normally to all the women litigants who have filed their suits in this court in their personal capacity and which are pending in objection before the Prothonotary and Senior Master, subject to the exceptions stated above.

(iv) In those cases, where however for reasons to be recorded, the prothonotary takes the view that the women litigants are required to pay the court fees, that would be subject yo a revision as provided under section 5(2) of the Bombay Court Fees Act, 1959.

(v) This will also not prevent the defendants from raising their objections when the suits are lodged and unnumbered without payment of court fees. They will be entitled to raise their objections before the concerned Judge by diling their written statements as and when the suit is taken up for hearing.

11 nm-1910-06-judgment.sxw

(vi) In matters of probate petition and succession certificate. My brother K.G. Shah, J. in his earlier order has taken the view that the moment a lady litigant files a proceeding, she will not be required to pay the court fees. I have taken a view after referring to the judgment of K.G. Shah, J. that the women beneficiaries will not be required to pay the court fees only to the extent they are getting benefit in the estate. The same view is taken by Nijjar, J. in his order of 10th February, 2000 but he has specifically differed with the view taken by K.G.Shah, J. The office faces the problem and as far as pending matters are concerned. A query was made to Nijjar, J. as to what approach the office should adopt. My brother Nijjar, J. kept the decision in abeyance since the present controversy was pending in this Court. In view of what is stated above, in my view, it would be appropriate that from the date of the order passed by Nijjar, J., i.e. 10th February, 2000 effect be given to the view that I have taken as well as the view taken by Nijjar, J., viz., that only to the extent women are beneficiaries, court fees will not be required.

8 As can be seen, the directions which are contained in clauses 1 to 7

were issued in the context of the fact that the large number of suits were pending

and which were filed between 1-10-1994 and 23-2-2000. The Learned Judge,

therefore, to avoid an anomalous situation, can be said to have issued the

directions as contended in the aforesaid clauses. However, clauses 4 & 5 make it

clear that the directions were in the nature of pro tem arrangement to take care

of the pending suits as by clause (4) the women litigants were entitled to filed a

revision as provided under Section 5(2) of Bombay Court Fees Act, 1959 in the

event the Learned Prothonotary and Senior Master was to take a view that the

Court fees were payable. As per clause (5), the Defendants were entitled to raise

their objections when the suit are lodged or numbered without payment of Court 12 nm-1910-06-judgment.sxw

Fees.

9 Hence though the Learned Single Judge has observed that the

matters filed on or after 23-3-2000 will be governed under the Notification of

that date, the remedies as and by way of clauses (4) & (5) were provided to the

parties.

10 Now coming to the Judgment of the Division Bench of this Court in

Girish Munshi's case (supra) the same was rendered on a reference made to the

Division Bench on the following issue:

"Whether a woman litigant who files a petition or grant of probate

of a Will, is exempted from payment of Court Fees as per Government

Notification dated 1-10-1994 duly amended by the explanatory Notification

dated 23-3-2000.

The said reference had arisen in view of the divergence of views

between the Learned Single Judges of this Court on the said issue. In the said

reference the Learned Advocate General was also requested to assist the Court.

The Learned Advocate General accordingly made the following submissions:

25. As per our request, the .earned Advocate General Mr.Ravi Kadam, very ably assisted the Court, with regard to interpretation of the aforesaid Government Notification as under:

a) It was as a result of various decisions of this court wherein the term 'property disputes' was given a wide interpretation, that the Government issued the explanatory Notification dated 23/03/2000, as amendment to the Notification dated 1/10/1994, to clarify that the words 'property disputes' would be restricted to those arising out of and concerning matrimonial matter.

13 nm-1910-06-judgment.sxw

b) Thus it is clear that the intention of 2nd Notification was to change the then existing Notification, and if despite the amendment. The situation continues to remain the same, then the amendment would be an exercise in futility.

c) Therefore it is imperative that the Notification and in particular the words 'arising out of and concerning matrimonial matters' be construed literally in their clear and ordinary meaning so that the ambit of the words 'Property disputes' is not interpreted in such a wide manner which would be contrary to the intention of the Government behind issuing the Notification.

d) In reference to the judgment of Dharmadhikari J. in the case of Ramila Rahjnikant Kilachand Vs. Harsh R. Kilachand and Ors. [2004(4) ALL MR 106] (Supra), relied upon by the petitioners, the Learned Advocate General stated that:-

i) The words 'matrimonial matters' arising in the Government Notification of 23/03/2000, which connote only cases of disputes between the parties to a marriage, cannot be replaced by the wider term 'matrimonial relationship'.

ii) The Learned Single Judge erred in interpreting the law viz. the Notification, in a manner as it 'ought to be' and not what 'it is'

e) Lastly, petitions relating to testamentary matters arise not out of a matrimonial matter, but out of death.

f) In the circumstances petitions filed by a widow for probate of her deceased husband's Will fall outside the purview of the Notifications granting exemption from payment of court fees.

The Division Bench answered the reference in terms of paragraph 26 of

the said Judgment which is reproduced herein under :

26. After hearing the learned Senior Counsel Dr. Tulzapurkar and the learned Advocate General and in light of the extensive arguments forwarded on behalf of the Petitioner and the State, the various judgments of this Court regarding the exemption from payment of court fees by women litigants and several of court fees by women litigants and several other relevant judgments of this Court and the Hon'ble 14 nm-1910-06-judgment.sxw

Supreme Court, the following issues can be clearly outlined.

A) The intention of the Government behind issuing the 2nd Notification 23rd March,2000.

a) The Notification dated 23/03/2000,which qualified 'property disputes, as disputes arising out of and concerning matrimonial matter, was issued as a consequence of various judgments of this Court wherein the term 'property disputes' was given a wide interpretation.

b) The Notification dated 23/03/2000 is in the form of an amendment Notification. In view of this, it is pertinent to note the reference made by Deshmugh J. in his judgment of 4/06/2007, to the judgment of the Privy Council in the case of D.R. Fraser & Co. Ltd Vs. The Minister of National Revenue, AIR (36)1949 (sic), wherein the Privy Council has observed that,. Where in amending act alters the language of the principal statute, the alteration must be taken to have been made deliberately'

c) The 2nd Notification was issued with the intention of changing the then existing situation and if despite the amendment the situation continues to be the same, the amendment would be an exercise in futility.

d) Hence the intention of the Government behind issuing the 2nd Notification is amply clear from plain simple interpretation of the words of the Notification themselves, that the term 'property disputes' would be restricted to only those concerning or arising out of matrimonial matters and would thence exclude petitions filed for probate of wills.

B) Interpreting it widely would go beyond the intent of the Government

a) Notwithstanding the face that the Notification exempting a certain class of women from payment of court fees is a beneficial piece of legislation, an extended meaning to the words 'Property disputes' would tantamount to indulging in exercise of legislation in the garb of interpretation A similar view was taken by Palkar J. in his judgment in the case of Smt. Ashabai w/o. Shivaji Shiral and Anr Vs, The Executive Engineer, MSEB, 1999(2) Bom.C.R. 194.

15 nm-1910-06-judgment.sxw

b) A petition for probate of a will is never a petition in relation to any dispute concerning any property but is in relation to the validity or otherwise of a wWill. The judgment of the Supreme Court in the case of Delhi Development Authority Vs. Mrs. Vijaya Gurshaney and Anr. AIR 2003 SC 3669, which Deshmukh J. referred to in his judgment of 4/06/2007 clearly brings to light the aforementioned view, wherein it was held that a testamentary Courts is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will and grant of probate or Letters if Administration does not conger title to property. (Emphasis supplied)

d) As rightly contended by the Learned Advocate General, Mr. Ravi Kadam, on behalf of the state, testamentary cases fo not arise out of matrimonial matter but rather arise out of 'death'

C) Fruthermore it is pertinent to differentiate between matrimonial matters and matrimonial relationship as the two term are not synonymous and hence the term 'matrimonial matters' arising in the Notification of 23/03/2000 cannot be replaced by 'matrimonial relationship' so as to bring a petition filed by a widow for probate of her deceased husband's Will within the ambit of the Notification.

D) Lastly, the words "property dispute arising out of or concerning matrimonial matters' should be given their plain and simple meaning, that is, as dispute arising between parties to a marriage, (attention may be brought to the reference made by Deshmukh J. to the Family Courts Act6 Sub-section 1 section7,to elucidate the meaning of the term 'matrimonial matters') and should therefore exclude testamentary petitions wherein not only is there an absence of a dispute, other than in cases when somebody files a caveat, it is not a matter between two parties to a marriage

11 In so far as the instant matter is concerned, clause (A)(c) and (d)

and clause (B)(a) are relevant. What can be culled out from clauses (c) and (d) is

that the terms "property disputes" would be restricted to those concerning or

arising out of the matrimonial matters and would hence exclude petitions for 16 nm-1910-06-judgment.sxw

probate of Wills. By clauses (B)(a) what has been laid down is that interpreting

the words "property disputes" by giving an extended meaning would tantamount

to indulgence in exercise of legislation in the garb of interpretation. Hence, the

Division Bench in terms has laid down that the property disputes would be

restricted only those concerning or arising out of matrimonial matters.

In the instant case as mentioned herein above, the Plaintiff has filed

the suit challenging the consent terms and for setting aside all the agreements.

They cannot by any stretch of imagination be said to be connected to matters

pertaining to matrimony. In view of the Judgment of the Division Bench in Girish

Munishi's case (Supra) in my view the efficacy, the Judgment in Jyoti Doshi's

Case (supra) stands denuded. As rightly submitted by the Learned Counsel for

the Applicant that Jyoti Doshi's case was decided to take care of the fall out of

the explanatory Notification dated 23-3-2000, as between 1-10-1994 and

23-3-2000 large number of suits came to be filed and entertained and wherein

orders came to be passed. However, the Division Bench in Girish Munshi's case

has laid the matter to rest.

12 In so far as the present suit is concerned, it is required to be noted

that a Learned Single Judge of this Court, Shri Nijjar, J. (as his Lordship then

was) has commented adversely as regards the conduct of the Plaintiff in filing the

instant Suit. The said observations were made by the Learned Judge whilst

considering the Notice of Motion No.3418 of 1996 in Suit No.864 of 1982 which

was filed by the Plaintiff herein against the Defendants. The said suit was 17 nm-1910-06-judgment.sxw

compromised in terms of the Consent Terms dated 6-11-1995 and 10-11-1995

between the Defendants herein who were plaintiffs and the plaintiff herein who

was the Defendants in the said suit. The said consent terms dated 10-11-1995

were sought to be challenged by the Plaintiff herein seeking setting aside of the

consent terms by filing the said Notice of Motion. It was the case of the Plaintiff

that the Defendants in the said Suit had committed a fraud on the Plaintiff herein

by enticing her to enter into the Consent terms dated 6-11-1995 and 10-11-1995.

The Learned Judge considered the averments in the said Notice of Motion with

the pleadings in the instant Suit No.3724 of 1996. On such consideration the

Learned Judge has observed in paragraph 7 to the following effect:

"These averments can further be compared with the pleadings in the plaint of Suit No.3724 of 1996. In this suit the consent terms along with other documents executed on various dates have been challenged. Here it is stated that all sorts of papers were got signed by Mr. Pandey."

"Thus it becomes crystal clear that averments in the pleadings have not been made honestly and faithfully but have been deliberately distorted to mislead the Court. This in my considered opinion is sufficient to justify the finding that the Defendants have abused the process of the Court. However, more about that later."

The Learned Judge has thereafter observed in paragraph 11 to the

following effect

"Allegations have been made against Mr. Pandey and yet he has not been impleaded as a party. In these circumstances it becomes absolutely clear that Subai and Mukta have been acting in collusion with each other. They have described themselves as plaintiffs or defendants according to the convenience in the proceedings to be taken. Yet when finally no relief was 18 nm-1910-06-judgment.sxw

granted it is Mukta who has filed the suit against Subai in relation to an agreement which has nothing to do with her".

The Learned Judge has thereafter observed in paragraph 13 to the

following effect :

"He has pointed out to this Court that the Advocates as well as Subai and Mukta are already facing contempt of court proceedings. I, therefore, deem it not proper at his stage to institute any further proceedings against Mr. Damani or Subai and Mukta. It is, however, put on record that the proceedings taken by Subai and Mukta are a very serious abuse of the process of the Court. False and frivolous allegations have been made against the High Court, City Civil Court and the Advocate appearing for Defendant Nos.1 to 4 before Mr. Damani cam on scene."

13 The above observations have been pointed out by the Learned

Counsel appearing for the Applicant in the above Notice of Motion to

demonstrate the manner in which the proceedings are filed by the Plaintiff

abovenamed. Based on the said observations, it is the contention of the Learned

Counsel appearing for the Applicant in the instant Notice of Motion that the

above suit by no stretch of imagination can qualify for exemption under the

Notification dated 1-10-1994 as amended by the Notification dated 23-3-2000.

Though as pointed by the Learned Counsel that the observations made by the

Learned Judge cannot be the basis or criteria on which exemption can be granted

or not granted to the Plaintiff from payment of Court Fees. Nevertheless, the

observations are an indicia of the type of the proceedings being prosecuted by

the Plaintiff above named.

19 nm-1910-06-judgment.sxw

14 In my view, in the light of the clear exposition of the Division Bench

in Girish Munshi's case (Supra) the Plaintiff is not entitled to exemption from

payment of Court Fees. The Notice of Motion would therefore, have to be allowed

and is accordingly allowed in terms of prayer clauses (a) and (b). However, the

same would come into force after a period of 8 weeks within which the Plaintiff

is directed to pay the Court fees which she is liable to pay on the basis of the

subject matter of the Suit and its valuation.

Notice of Motion allowed.

(R M SAVANT, J)

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