IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE

WRIT PETITION NO.5725 of 2009

Narayan Lachmandas Mathreja … Petitioner

versus

M/s.Savanah Hospitality Pvt.Ltd. … Respondent

Mr. P.S.Dani for the petitioner.
Mr.Amol Mhatre for respondent.

CORAM : D.G. KARNIK, J.
DATED : 1st July 2010 ORAL ORDER:-

1. Rule. Rule returnable forthwith. Mr.Mhatre waives service for the respondent.

2. Heard counsel for the parties.

3. By this petition, petitioner challenges the judgment and order dated 24 March 2009 passed by the learned District Judge-12, Pune, allowing the revision application filed by the respondent (original plaintiff) u/s.34(4) of the Maharashtra Rent Control Act.

4. By an agreement styled as “An agreement of leave and licence”, the petitioner granted license to the respondent to use the premises situated as 480A/1 at Galaxy Garden, Koregaon Park, Pune-1 (for short “the suit premises”). The respondents filed a suit bearing Civil Suit No.356 of 2008 contending that the agreement of leave and license was in fact an agreement of tenancy and prayed for a declaration that he was a tenant in respect of the suit premises. He further claimed a declaration that the standard rent would not be more than Rs.10,000/-. The respondent valued his suit at Rs.1,20,000/-, which according to him ought to have been the yearly standard rent for the suit premises. The petitioner filed an application in the Court that the suit was not properly valued and it was required to be valued on the basis of agreed license fee which was Rs.80,000/- p.m. and not on the basis of what should be the appropriate standard rent. The application was allowed by the trial court which directed the respondent to amend the valuation of the suit at an amount equivalent to one year’s agreed license fee. Aggrieved by the order, respondent moved the District Court in revision u/s.34(4) of the Maharashtra Rent Control Act.

The District Court partly allowed the revision application, modified the order of the trial Judge and directed the respondent to pay 1/4th advalorem court fee on the market value of the property.

That decision is impugned in the present writ petition.

5. The scope of revisional jurisdiction of the District Court under section 29(3) of the Bombay Rent and Lodging Houses Rates Control Act, 1947 (for short “The Bombay Rent Act”) has been considered by a Division Bench of this Court in Sukhdev Prasad Raghubir Vs.Rambhujarat Kshampati @ Rambhujarat Chhampati, 1982(1) Bom.C.R.832. The Division Bench has held that the words “any order” used u/s.29(3) of the Bombay Rent Act will not include in its import the procedural orders, which do not affect the rights and liabilities of the parties. The Division Bench has further held that the provision of revision u/s.29(3) of the Bombay Rent Act would not include a revision application against a procedural order. A revision under 29(3) of the Bombay Rent Act can be entertained only in respect of an order which is not a procedural order, that is to say an order which is a substantive order affecting rights of the parties to the litigation.

6. Following the decision of the Division Bench in Sukhdev Prasad Raghubir Vs.Rambhujarat Kshampati (supra), a Single Judge of this Court held that no revision application would lie u/s.

34(4) of the Maharashtra Rent Control Act, 1999, which is pari materia with section 29 (3) of the Bombay Rent Act, in respect of a procedural order not affecting the substantive rights of the parties.

7. Learned counsel for the respondent however, submitted that a contrary view has been taken by Vazifdar, J in Pacific Engineering Co.Pvt.Ltd. Vs. East India Hotels Ltd., 2005(1) Bom.C.R. 427 wherein it has been held that even a procedural order would be revisable if it affects substantially the rights of a party. It may be noted that another Single Judge of this Court (Coram A.S.Oka,J) in Laheribai J. Trivedi Vs. Dharamdatta V. Trivedi 2010(1) Mh.L.J.

597 has observed that the view taken by Vazifdar, J in Pacific Engineering Co.Pvt.Ltd. Vs. East India Hotels Ltd (supra) is contrary to the view expressed by the Division Bench in Sukhdev Prasad Raghubir Vs.Rambhujarat Kshampati (supra) and has therefore declined to follow it. In the facts of the present case, it is not necessary to consider whether the view taken by Vazifdar, J in the case of Pacific Engineering is contrary to the view taken by Division Bench and requires reconsideration because even in Pacific Engineering, Vazifdar J has held that a revision would lie against a procedural order only if it substantially affects the rights of a party. In the facts of the present case, no revision could have been entertained by the District Court because in my view the order of the trial court directing the respondent to amend valuation of the suit did not affect any substantive right of the petitioner.

9. Section 9 of the Code of Civil Procedure confers/ recognises right of a person to approach the court where his civil right is infringed. The right of a person to approach a court is a substantive right. There can however be some procedural requirements for enforcement of this right. Payment of a certain amount of court fee is only a procedural requirement for enforcement of the civil right. What is the proper and appropriate Court fee is determined in accordance with provisions of Bombay Court Fees Act. An indigent person unable to pay Court fee stamp can be exempted from the payment but rest of the persons must pay the appropriate court fee on their plaint. Determination of what would be the proper amount of a court fee for institution of a suit is a procedural aspect. Usually the Court’s office examines every plaint filed in the court and raises office objections, if any, including on the question of valuation and court fee payable. Of course, a party has a right to move the Court against the office objection whereupon the Court gives its ruling either overruling the objection or directing the plaintiff to comply. The order of the Court determining the quantum of a court fee and/or under what article/entry of the Court Fees Act the fee would be chargeable.

The order determining the amount of court fee required to be paid is a procedural order and not a substantive order affecting the plaintiff’s right to sue which is a substantive right. The right of a party to sue is unaffected but he is only required to procedurally pay certain amount by way of court fee. In the present case, the order impugned before the District Court was a procedural order not affecting any right of the respondent. In view of a series of decisions of this court which have taken a view that no revision lies u/s.29(3) of the Bombay Rent Act and section 34(4) of the Maharashtra Rent Control Act against a procedural order not affecting substantial right of a party learned District Judge clearly erred in entertaining the revision application of the respondent.

10. For these reasons, the impugned order is set aside and the order passed by the trial Judge is restored. Time for carrying out the amendment as regards the valuation and payment of a court however is extended by eight weeks from today. In the event the amendment is not so carried out and the appropriate court fee is not paid within the specified time, the plaint shall stand rejected under Order 7 Rule 11 of the Code of Civil Procedure,without further reference to the Court. The Registry shall communicate the order to the trial court forthwith.

(D.G. KARNIK,J.)