Partly allowed

Surekha Bharat Karande v. Deepak Janardhan Wani and Ors.

Bombay HC14 Jan 2011WP/260/2011

Case brief

AI extract

What is this about?

A writ petition challenging the trial court's rejection of an amendment prayer to correct deficit court fees. The High Court held that the trial court erred in refusing to allow correction, permitting amendment subject to payment of costs for the delay.

What did the court decide?

Impugned order quashed; petitioner permitted to amend plaint and pay deficit court fees subject to deposit of Rs. 1,500 costs.

Surekha Bharat Karande Vs Deepak Janardhan… — Civil Procedure and Limitation | Bombay HC (2011)

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(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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WRIT PETITION NO. 260 OF 2011

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Sau. Surekha Bharat Karande, Age : 38 years, Occupation : Household, R/o. Newasa Khurd, Taluka : Newasa, .. Petitioner District : Ahmednagar. (Original plaintiff)

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versus

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Deepak Janardhan Wani, Age : Major, Occupation : Business.

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Gajanan Janardhan Wani, Age : Major, Occupation : Business.

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Both R/o. : Revenue Housing Society, Opposite Market Yard, Mauli Medical Stores, Kopargaon, Taluka : Kopargaon, District : Ahmednagar.

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Sunita Balchandra Sonune, Age : Major, Occupation : Household, R/o. Zilla Parishad Quarters, Near Boti Bagh, Taluka : Jalna, District : Jalna.

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(2)

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Sunanda Manik Mapari, Age : Major, Occupation : Household, R/o. Newasa Khurd, Mapari Galli, Taluka : Newasa, District : Ahmednagar.

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Kopargaon Revenue D.A. Cooperative Housing Society Ltd., Kopargaon, Taluka : Kopargaon, District : Ahmednagar, .. Respondents Through its secretary. (Original defendants).

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Mr. P.B. Shirsath, Advocate, for the petitioner.

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Mr. P.C. Mayure, Advocate, holding for Mr. S.S. Chapalgaonkar, Advocate, for respondent nos.1 and 2 / caveators.

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CORAM : B.P. DHARMADHIKARI, J.

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DATE : 14TH JANUARY 2011

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ORAL JUDGMENT :

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1. Rule. Rule made returnable forthwith. Looking to the nature of controversy, petition is heard finally with consent of parties.

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(3)

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2. As the impugned order pertains to payment of deficit court fees and the objection in that regard is raised by the respondent nos.1 and 2 (caveators), service of notice, upon rule, upon respondent nos.3, 4 and 5 is dispensed with.

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3. The trial court has rejected prayer for amendment of plaint made by the petitioner, on the ground that it was filed after the affidavit of examination in chief already came on record. Mr. P.B. Shirsath, learned Counsel appearing for the petitioner / plaintiff, states that evidence was to be recorded on preliminary issues as framed on 14-7-2010 and even if those issues were to be answered in favour of present respondent nos.1 and 2, law necessitated grant of opportunity to plaintiff / petitioner to make up deficit court fee. In this situation, when the plaintiff / petitioner himself is voluntarily paying that court fees, refusal by the trial court is unwarranted.

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4. Mr. P.C. Mayure, learned Counsel appearing for respondent nos.1 and 2, supports the impugned order. He states that this objection about deficit court fees and wrong valuation was raised way back in 2007 in written statement. The petitioner / plaintiff slept over it all these years and at 11th hour, application for amendment was moved. According to him, there

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(4)

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is no jurisdictional error or perversity with the impugned order.

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5. On application moved by the respondent nos.1 and 2, the trial court vide order dated 14-7-2010, has framed issue about proper valuation of the suit and about sufficiency of court fees paid on it and directed parties to adduce their evidence on that aspect. It is to be noted that after the parties adduced their evidence, the trial court, in normal course, would have decided the issues in either way. Had the issues been decided in favour of respondent nos.1 and 2, the trial court could not have dismissed the suit straightway, but it was required to give petitioner / plaintiff time to correct the valuation and pay deficit court fees. Without waiting for that stage to arrive, the petitioner / plaintiff voluntarily offered to correct the valuation and pay court fees. In fact, the application for amendment, as such, was not necessary. However, the plaintiff / petitioner has moved that application as per legal advice.

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6. In this situation, the respondent nos.1 and 2 can only complain about the delay and dilatory tactics in the matter. However, their objections can be taken care of by directing plaintiff to pay them reasonable costs.

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7. In this situation, I find that interest of justice can be

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(5)

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met by directing the plaintiff / petitioner to correct valuation of the suit as proposed by him and to pay deficit court fees. However, the same shall be subject of costs.

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8. In the result, the petition is partly allowed.

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(i) The impugned order dated 3-12-2010, passed by the learned Joint Civil Judge (Junior Division), Kopargaon, below Exhibit 43 in Regular Civil Suit No. 137/2007, is quashed and set aside.

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(ii) The petitioner / plaintiff is permitted to amend the plaint, as prayed in application below Exhibit 43. However, the same shall be subject to payment of costs which are quantified at Rs. 1,500/- [Rupees one thousand five hundred] to the respondent nos.1 and 2 / original defendant nos.1 and 2. The costs shall be deposited in the trial court on or before the next date after receipt of this order by the petitioner. If costs are deposited, the trial court shall permit the petitioner / plaintiff to correct valuation of the suit and accept deficit court fees.

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(iii) On costs being deposited, the respondent nos.1 and 2 / original defendant nos.1 and 2 shall be permitted to withdraw the same.

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(6)

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9. Rule is made absolute accordingly.

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( B.P. DHARMADHIKARI ) JUDGE

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bgp/260wp

Surekha Bharat Karande v. Deepak Janardhan Wani and Ors.

Case brief

What is this about?

What did the court decide?

Surekha Bharat Karande v. Deepak Janardhan Wani and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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