W.P. No.7979 of 2010
Smt. Angoori Bai and another Leeladhar and another
30.6.2010
Shri R.K. Nanhoria, Counsel for the petitioners.
This petition is directed against an order dated
5.5.2010 by the District Judge, Hoshangabad in Civil Suit
No.6-A/2008 by which the petitioners who were defendants
have been directed to put proper valuation of the counter
claim and to make payment of deficit court fees on it.
Learned counsel appearing for the petitioners
submitted that the petitioners want to withdraw the counter
claim with liberty to file fresh suit against the respondent but
is apprehending that such application may be rejected by the
trial Court in view of the order dated 5.5.2010 so the some
directions may be issued to the trial Court.
The apprehension of the petitioners is misconceived.
When the petitioners have filed counter claim on which the
trial Court has directed for putting proper valuation and
payment of court fees, if the petitioners want to withdraw the
aforesaid counter claim, petitioners are always free to it.
Even if the petitioners fails to put the valuation of the counter
claim and make payment of the deficit court fees, the
consequences which would follow will be in accordance with
the provisions as contained under Order 7 Rule 11 C.P.C. i.e.
Rejection of the counter claim. However Order 7 Rule 13
CPC takes care of such situation and in case of dismissal of
the counter claim because of non-payment of the court fees,
the petitioners are not precluded from filing a fresh suit
against the plaintiff.
In view of the specific provisions as contained under
Order 7 Rule 13 C.P.C., the apprehension of the petitioners is
misconceived. Petitioners may file an application before the
W.P. No.7979 of 2010
Smt. Angoori Bai and another Leeladhar and another
30.6.2010
trial Court for withdrawal of the counter claim which shall be
considered by the trial Court in accordance with the aforesaid
provisions.
With the aforesaid liberty, this petition is disposed of
finally with no order as to costs.
(Krishn Kumar Lahoti) (J.K. Maheshwari)
JUDGE JUDGE
vj.