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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8072 OF 2010
Vijay s/o Mohan Jagtap,
age; 33 years, Occ: Agri.,
R/o Jakhangaon, Taluka
and District Ahmednagar. Petitioner
Versus
1 Sau.Sindhubai Mohanrao Jagtap,
age: 59 years, Occ: Household
& Agri., R/o Jakhangaon,
Taluka & District Ahmednagar.
2 Suhas s/o Mohan Jagtap,
age: 29 years, Occ: Agri.,
R/o Jakhangaon, Taluka and
District Ahmednagar.
3 Sau.Krushnabai Vasantrao Jagtap,
age: 61 years, Occ: Household
and Agri., R/o Jakhangaon,
Taluka & District Aurangabad.
4 Sau.Anusayabai Ashok Lonkar,
age: 54 years, Occ: Household,
R/o Draksha Baug,
Nasik Road, Nasik.
5 Sau.Sharda Balasaheb Lonkar,
age: years, Occ: Household,
R/o Draksha Baug,
Nasik Road, Nasik. Respondents
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Mr.Sandeep S. Deshmukh, advocate for the petitioner.
Mrs.Charuta S. Deshmukh, advocate for respondents no.1 & 2.
Respondents No.3 to 5 are served.
CORAM : S.S.SHINDE, J.
DATE : 22nd September, 2011
ORAL JUDGMENT:
1 Heard learned Counsel for the petitioner.
Rule. Rule made returnable forthwith and heard
finally by consent of learned Counsel for respective parties.
Learned Counsel Mrs.Deshmukh waives service of Rule on behalf
of Respondents No.1 & 2. Rest of the Respondents, though served,
are absent.
2 This writ petition is filed challenging the order dated
20.08.2009, passed by 4th Joint Civil Judge, Senior Division,
Ahmednagar, below application Exhibit-28 in Regular Civil Suit No.
368/2007, and order dated .17.07.2010, passed by 5th Joint Civil
Judge, Senior Division, Ahmednagar, below application Exhibit-44
in Regular Civil Suit No.368/2007.
3 The background facts of the case are as under:
Petitioner herein is original defendant no.1 in Regular
Civil Suit No.368/2007 filed by Respondent No.1 herein. Petitioner
is son of Respondent No.1, Respondent No.2 is real brother of
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petitioner. Respondents No.3 to 5 are real sisters of Respondent
No.1. There is no dispute about relationship between the parties.
4 It is the case of the petitioner that present Respondent
No.3 – Krushnabai Vasantrao Jagtap filed Regular Civil Suit No.
324/1998 in the Court of Civil Judge, Junior Division,
Ahmednagar. The suit was filed for partition and separate
possession in respect of agricultural lands bearing G.Nos.304, 391,
86, 392, 396 and 401, situate at village Jakhangaon, Taluka and
District Ahmednagar. It is the case of the petitioner that
Sindhubai – Respondent No.1 herein was original defendant no.1 in
the said suit, which was filed in the year 1998. Petitioner herein
and Respondent No.2 herein were not party to the said suit.
5 It is the contention of the petitioner that agricultural
lands, which were subject matter of the suit, which was filed in the
year 1998, were possessed and owned by Baburao Shinde i.e.
father of present Respondent Nos.1 and 3 to 5. Baburao Shinde
expired on 26.01.1996. Said suit came to be decreed on 22.01.1999
on the basis of compromise deed.
On 17.09.2007, Respondent No.1 herein filed Regular
Civil Suit No.368/2007 in the Court of Civil Judge, Senior
Division, Ahmednagar. According to the petitioner, in the said suit,
it is contended that the partition effected on 22.01.1999 on the
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basis of compromise deed is not binding on the plaintiff –
Respondent No.1 herein as the same has been effected by
committing fraud by Respondents No.3 to 5 herein. It is averred in
the said suit that, compromise has been effected between the
parties, however, the plaintiff – Respondent No.1 herein has not
been given share in the suit property. It is prayed in the said suit
that the compromise deed dated 22.01.1999 may be cancelled and
Respondent No.1 may be granted 1/4th share in the suit properties.
6
It is further case of the petitioner that on 10.10.2008,
petitioner filed written statement and contended that the suit is
not maintainable under Order 23 Rule 3 of the Code of Civil
Procedure. The suit is barred by non joinder of necessary parties.
The petitioner is in possession of the suit land and is cultivating
the same. As per the compromise deed, mutation entry no.1495
has already been effected on 11.01.2000 and the same has not
been challenged by Respondent No.1 i.e. original plaintiff.
Respondent No.3 has also filed written statement on
15.03.2008 and opposed the suit.
7 It is the case of the petitioner that on 23.01.2009,
original plaintiff – Respondent No.1 filed application below
Exhibit-28, thereby seeking amendment in the plaint. In the said
application, prayer was made to add / include the properties
situate at Rasta Peth, Pune. It is the case of the petitioner that the
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said properties i.e. CTS No.483/1, admeasuring 50.2 square
meters, CTS No.364/1, admeasuring 23.4 square meters, CTS No.
364/2A, admeasuring 8.2 square meters and CTS No.364/2B,
were owned by joint family and owned by Purushottam Kisanrao
Jagtap i.e. father-in-law of Respondent No.1 – original plaintiff.
It is the case of the petitioner that the suit, which was
filed by Respondent No.1, was seeking partition in her father’s
property. However, in the said suit, she has filed application for
amendment below Exhibit-28 praying therein for inclusion of joint
family properties owned by her father-in-law. Respondent No.3
herein filed her say at Exhibit-30 and opposed the application for
amendment.
8 On 20.08.2009, the 4th Joint Civil Judge, Senior
Division, Ahmednagar, allowed the application filed by original
plaintiff – Respondent No.1 herein for amendment below
Exhibit-28. It is the submission of the learned Counsel for the
petitioner that the trial Court erred in not appreciating the
inconsistent pleas taken by Respondent No.1 – original plaintiff,
which is impermissible in the eyes of law. It is further contention
of the petitioner that the trial Court erred in not appreciating that
in the life time of her husband, Respondent No.1 – original plaintiff
cannot seek partition of the properties owned by her father-in-law.
It is further contention of the petitioner that the suit raises a
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challenge to the compromise deed dated 22.01.1999 and a relief
ancillary to it. However, it no where includes and/or is related to
the joint family properties of father-in-law of plaintiff / Respondent
No.1 herein, more so, which are situated at Pune.
It is the contention of the petitioner that the trial Court
wrongly allowed the application filed by Respondent No.1 subject to
the condition to correct the valuation of the suit and to pay the
requisite court fee. It is the case of the petitioner that while
passing the order, the trial Court imposed a condition for the
purpose of allowing the application for amendment and directed
original plaintiff – Respondent No.1 herein to pay the requisite
court fee. It is further case of the petitioner that without
complying the condition in respect of payment of court fee,
Respondent No.1 – original plaintiff, on 01.09.2009, carried out
amendment to the plaint of Regular Civil Suit No.368/2007.
9 It is the contention of the petitioner that original
plaintiff – Respondent No.1 filed an application below Exhibit-36
on 06.01.2010 thereby seeking exemption from payment of court
fee. It is the case of the petitioner that Respondent No.3 herein did
file her say at Exhibit-38 to application below Exhibit-36 and
specifically contended that Respondent No.1 is deliberately
avoiding to pay the court fee and as such, application below
Exhibit-36 requires to be rejected. It is further stated that
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Purushottam Kisanrao Jagtap, father in law of original
plaintiff/Respondent No.1 herein expired on 20.11.1984 and by way
of will deed, all his properties have been transferred in the names
of his grandsons i.e. petitioner and Respondent No.2. It is further
stated that one Santosh Vasanrao Jagtap has not been added as
party to the suit and as such, Respondent No.1 – original plaintiff
cannot be the beneficiary of the properties sought to be added by
way of amendment. It is the case of the petitioner that provisions
of Section 46 of Bombay Court Fees Act cannot be made
applicable and the plaintiff cannot be granted exemption from
payment of court fee. It is not in dispute that application below
Exhibit-36 is yet pending before the trial Court.
10 The petitioner herein, on 09.07.2010, filed an
application below Exhibit-44 in the pending suit under the
provisions of Order 39 Rule 11 of the Civil Procedure Code. It was
stated in the said application that application filed by the plaintiff
– Respondent No.1 herein came to be allowed subject to correcting
valuation of the suit and on payment of requisite court fee,
however, Respondent No.1 – original plaintiff neither given correct
valuation nor has deposited the requisite court fee. It was further
stated in the said application that plaintiff – Respondent No.1 has
not challenged the order passed on the application below
Exhibit-28 and as such, the same is binding on Respondent No.1
and, therefore, the suit is liable to be dismissed as per Order 39
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Rule 11 of the Code of Civil Procedure. The original plaintiff –
Respondent No.1 herein filed say opposing the application filed by
the petitioner.
11 Learned 5th Joint Civil Judge, Senior Division,
Ahmednagar, rejected petitioner’s application below Exhibit-44. It
is the contention of the Counsel appearing for the petitioner that
the trial Court was not correct in holding that the suit is in respect
of matrimonial matter and as such, plaintiff – Respondent No.1
herein is exempted from payment of court fee. It is submitted that
the dispute, which does not relate to matrimonial cause, is outside
the purview of the special Notification, which allows exemption
from payment of court fee to woman litigants. Learned Counsel for
the petitioner has invited my attention to the Notifications issued
by the Government of Maharashtra on 01.10.1994 and 23.03.2000
and submitted that only in cases where dispute arises out of and
concerning to matrimonial causes, the woman litigants are
exempted from payment of court fee. However, in the present case,
suit is filed for partition and possession. It is further submitted
that original suit was filed challenging the compromise deed
effected on 22.01.1999 and by way of application for amendment of
the plaint, a prayer for partition of the properties belonging to
father-in-law of Respondent No.1 is added. Therefore, according to
the learned Counsel for the petitioner that the suit with added
prayer in respect of partition of the properties of father-in-law, in
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the absence of adding surviving husband as party, cannot be
termed as matrimonial cause and, therefore, according to the
learned Counsel for the petitioner, order passed by the trial Court,
exempting Respondent No.1 from payment of court fee, cannot be
sustained in view of the Notifications issued by the Government of
Maharashtra and law laid down by this Court in the case of
Prabhakar Dayaram Narkhede Vs. Vijaya alias Shakuntala
Ghanshyam Chaudhari, reported in 2007 (3) Bom.C.R. 722.
Learned Counsel submits that, in that case also, prayer in the suit
was for declaration, partition along with possession in respect of
ancestral properties. However, this Court has taken a view that
such dispute, which was raised in that case, falls outside the realm
of expression “matrimonial dispute”. Therefore, according to the
learned Counsel for the petitioner, said authoritative
pronouncement of this Court is squarely applicable in the facts of
this case.
12 It is further submitted that application filed by
Respondent No.1 herein – original plaintiff below Exhibit-28 for
amendment of the plaint should not have been allowed by the trial
Court since, firstly, the properties are situate at Rasta Peth, Pune,
secondly, husband is not made party to the suit by the plaintiff
and thirdly, original suit is for declaration and cancellation of
compromise deed dated 22.01.1999 in respect of properties of
father of Respondent No.1 and Respondents No.3 to 5. Therefore,
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according to the Counsel for the petitioner, if at all plaintiff –
Respondent No.1 herein wanted to file suit for partition in respect
of properties belonging to her father-in-law, in that case, such suit
should have been filed in the competent Court at Pune. He further
submits that Respondent No.2 herein filed Regular Civil Suit No.
739/2008 before the Court of Civil Judge, Senior Division at Pune.
However, learned Counsel appearing for Respondents No.1 & 2
submits that said suit has been withdrawn on 18.02.2009.
13
Relying upon the grounds taken in the petition,
annexures thereto, Notifications mentioned hereinabove issued by
the Government of Maharashtra and the judgment of this Court in
the case of Prabhakar (supra), learned Counsel for the petitioner
would submit that the order dated 20.08.2009, passed below
Exhibit-28 and order dated 17.07.2010, passed below Exhibit-44
deserve to be quashed and set aside.
14 On the other hand, learned Counsel for Respondents
No.1 & 2, has invited my attention to the provisions of Section 17 of
the Civil Procedure Code and submits that though the properties
are situate at Pune, Respondent No.1 – original plaintiff can very
well file suit in respect of the said properties at Ahmednagar and
as such suit is filed and application for amendment has been
rightly entertained by the concerned Court. It is submitted that
the application for amendment of the plaint i.e. for adding
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properties belonging to the father-in-law is perfectly maintainable.
Therefore, according to the learned Counsel for Respondents No.1
and 2, since the application filed by Respondent No.1 – original
plaintiff for amendment of the plaint was in respect of properties
owned by her father-in-law, that amounts to matrimonial dispute
and, therefore, the order passed by the trial Court exempting the
plaintiff – Respondent No.1 herein from payment of court fee is
perfectly sustainable in law. Learned Counsel has invited my
attention to the reported judgment of this Court in the case of
Manoramabai Keshav Joshi Vs. Arun Keshav Joshi & another,
reported in 2008 (1) Bom. C.R. 667 and submitted that in that
case also, this Court has considered both the Notifications and
held that if the property in respect of which dispute was raised,
belongs to husband and if husband is no more and, therefore, in
respect of such properties if the dispute is filed by wife, in that
case, it amounts to matrimonial dispute and, therefore, petitioner
therein was exempted from payment of court fees.
15 I have given due consideration to the rival
submissions. I have carefully gone through the orders impugned
in this petition. The order below Exhibit-28 is passed by the trial
Court on the application filed by Respondent No.1 for amendment
of the plaint. In my considered view, such application, thereby
praying for adding properties of father-in-law, in the suit which was
originally filed challenging the compromise deed in Regular Civil
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Suit No.324/1998 should not have been allowed by the trial Court.
By way of application for amendment, Respondent No.1 herein has
prayed a totally different relief in respect of the properties of her
father-in-law. The relief, which was claimed by way of amendment,
was for partition and possession of the properties belonging to the
father-in-law. Admittedly, husband of plaintiff is not added as
party defendant in the said suit. The trial Court has not recorded
any finding in respect of the objection raised by petitioner herein
that husband of Respondent No.1 is alive and when husband of
plaintiff is alive, how such suit is maintainable, which is filed by
the wife for partition of the properties, which are owned by her
father-in-law. Second thing is that, admittedly, on the date when
such application for amendment was filed by the plaintiff i.e. for
adding the properties of her father-in-law, Regular Civil Suit No.
739/2008 was pending before the competent Court at Pune. It is
not in dispute that the properties, which Respondent No.1 wanted
to add by way of amendment in the plaint, are situate at Pune.
Therefore, in my considered view, the 4th Joint Civil Judge, Senior
Division, Pune, has wrongly allowed such application. It was open
for the plaintiff – Respondent No.1 herein to file a separate suit for
partition and possession of the properties owned by her father-in-
law before the competent Court. The learned Judge has not
addressed the issue raised by the petitioner herein that husband of
Respondent No.1 is alive and without making him party, suit is
filed by the wife. In fact, the learned Judge should have addressed
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this issue first and then should have proceeded to pass final
orders. Therefore, in my considered view, the 4th Joint Civil Judge,
Senior Division, Ahmednagar, should not have allowed the
application filed by Respondent No.1 for amendment of the plaint
i.e. for adding the properties owned by her father-in-law and to
pray for partition of such properties.
16 Coming to the order dated 17.07.2010, passed by the
5th Joint Civil Judge, Senior Division, Aurangabad, below
application Exhibit-44 in Regular Civil Suit No.368/2007, on
careful perusal of the said order, it reveals that not a single reason
has been assigned by the Court below as to why application filed
by the petitioner has been rejected and as to why Respondent No.1
should be exempted from payment of court fee. Respondent No.1
has not referred to any particular provision, notification or relied
upon any judgment under which she is entitled for exemption from
payment of court fee. If the learned Judge was convinced to pass
order granting exemption to Respondent No.1 from payment of
court fees, certainly reasons should have been assigned in the said
order. However, from careful reading of the said order, it reveals
that the said order is totally silent and no reasons are assigned
while exempting Respondent No.1 from payment of court fee.
17 Though, learned Counsel appearing for Respondents
No.1 and 2, strenuously contended that the judgment of this Court
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in the case of Manoramabai (supra) takes a view that if the widow
has filed proceedings in respect of properties owned by husband
and if husband is dead, and the wife has claimed possession of the
said property, in that case, wife is exempted from payment of court
fees. On careful reading of the facts of that case, it is clearly
emerged that husband of the petitioner therein was no more and
dispute was regarding house owned by the husband, and wife did
file proceedings in respect of said house. In the instant case,
Respondent No.1 herein has filed application for amendment of the
plaint seeking therein adding of the properties of her father-in-law
and claiming relief of partition and possession in the suit, which
was originally filed for altogether different reliefs. Secondly,
admittedly, husband is not party to the suit or application which
was filed for amendment. Thirdly, the properties are situate at
Pune. Therefore, in my considered opinion, if the order dated
20.08.2009, passed below application Exhibit-28 is quashed and
set aside, the order dated 17.07.2010, below application Exhibit-44
has to go since the application for amendment should not have
been allowed by the trial Court. The facts of the case cited by the
Counsel for the petitioner in the case of Prabhakar (supra) are
similar to the facts in the present case. This Court, in the cited
judgment, has taken a view that if the suit is filed for declaration
and partition along with separate possession in respect of
ancestral properties, in that case, the dispute is outside the realm
of expression “matrimonial dispute”.
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18 For the reasons stated hereinabove, both the orders i.e.
the order dated 17.07.2010, passed by 5th Joint Civil Judge, Senior
Division, Ahmednagar, below application Exhibit-44 in Regular
Civil Suit No.368/2007; and order dated 20.08.2009, passed by 4th
Joint Civil Judge, Senior Division, Ahmednagar, below application
Exhibit-28 in Regular Civil Suit No.368/2007, are quashed and set
aside.
19
Rule is made absolute to the above extent and petition
stands disposed of. In the facts and circumstances of this case,
there shall be no order as to costs.
S.S.SHINDE
JUDGE
adb/wp807210
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