{"id":146013,"date":"2011-09-22T00:00:00","date_gmt":"2011-09-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vijay-vs-5-sau-sharda-balasaheb-lonkar-on-22-september-2011"},"modified":"2015-12-01T22:49:55","modified_gmt":"2015-12-01T17:19:55","slug":"vijay-vs-5-sau-sharda-balasaheb-lonkar-on-22-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vijay-vs-5-sau-sharda-balasaheb-lonkar-on-22-september-2011","title":{"rendered":"Vijay vs 5 Sau.Sharda Balasaheb Lonkar on 22 September, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Vijay vs 5 Sau.Sharda Balasaheb Lonkar on 22 September, 2011<\/div>\n
Bench: S. S. Shinde<\/div>\n
                                     {1}\n\n\n            IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n\n\n\n\n                                                                   \n                       BENCH AT AURANGABAD\n                   WRIT PETITION NO.8072 OF 2010    \n\n\n\n\n                                           \n     Vijay s\/o Mohan Jagtap,\n     age; 33 years, Occ: Agri.,\n     R\/o Jakhangaon, Taluka\n\n\n\n\n                                          \n     and District Ahmednagar.                       Petitioner \n\n           Versus\n\n\n\n\n                                   \n     1 Sau.Sindhubai Mohanrao Jagtap,\n        age: 59 years, Occ: Household\n                     \n        & Agri., R\/o Jakhangaon,\n        Taluka & District Ahmednagar.\n                    \n     2 Suhas s\/o Mohan Jagtap,\n        age: 29 years, Occ: Agri.,\n        R\/o Jakhangaon, Taluka and\n        District Ahmednagar.\n      \n\n\n     3 Sau.Krushnabai Vasantrao Jagtap,\n   \n\n\n\n        age: 61 years, Occ: Household\n        and Agri., R\/o Jakhangaon,\n        Taluka & District Aurangabad.\n\n\n\n\n\n     4 Sau.Anusayabai Ashok Lonkar,\n        age: 54 years, Occ: Household,\n        R\/o Draksha Baug,\n        Nasik Road, Nasik.\n\n\n\n\n\n     5 Sau.Sharda Balasaheb Lonkar,\n        age:    years, Occ: Household,\n        R\/o Draksha Baug,\n        Nasik Road, Nasik.                          Respondents\n\n\n\n\n                                           ::: Downloaded on - 09\/06\/2013 17:45:56 :::\n                                             {2}\n\n\n     Mr.Sandeep S. Deshmukh, advocate for the petitioner. \n\n\n\n\n                                                                                \n     Mrs.Charuta S. Deshmukh, advocate  for respondents no.1 & 2.\n     Respondents No.3 to 5 are served.\n\n\n\n\n                                                        \n      \n\n                                       CORAM : S.S.SHINDE, J.\n<\/pre>\n
                                          DATE    : 22nd  September, 2011\n\n\n\n\n                                                       \n     ORAL JUDGMENT:\n\n     1             Heard learned Counsel for the petitioner.\n\n\n\n\n                                          \n                   Rule.     Rule   made   returnable   forthwith   and   heard \n                         \n<\/pre>\n
     finally   by   consent   of   learned   Counsel   for   respective   parties.\n<\/p>\n
     Learned Counsel Mrs.Deshmukh  waives service of Rule on behalf <\/p>\n
     of Respondents No.1 & 2.  Rest of the Respondents, though served, <\/p>\n
     are absent.\n<\/p>\n
     2             This writ petition is filed challenging the order  dated <\/p>\n
     20.08.2009,   passed   by   4th  Joint   Civil   Judge,   Senior   Division, <\/p>\n
     Ahmednagar, below application Exhibit-28 in Regular Civil Suit No.<\/p>\n
     368\/2007, and order  dated .17.07.2010,  passed by  5th  Joint  Civil <\/p>\n
     Judge, Senior Division, Ahmednagar, below application Exhibit-44 <\/p>\n
     in Regular Civil Suit No.368\/2007.\n<\/p>\n
     3             The background facts of the case are as under:\n<\/p>\n
                   Petitioner herein is original defendant no.1 in Regular <\/p>\n
     Civil Suit No.368\/2007 filed by Respondent No.1 herein.  Petitioner <\/p>\n
     is   son   of     Respondent   No.1,   Respondent   No.2   is   real   brother   of <\/p>\n
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\n                                              {3}<\/p>\n
     petitioner.   Respondents No.3 to 5 are real sisters of Respondent <\/p>\n
     No.1.  There is no dispute about relationship between the parties.\n<\/p>\n
     4              It is the case of the petitioner that present Respondent <\/p>\n
     No.3 – Krushnabai Vasantrao Jagtap filed Regular Civil Suit  No.<\/p>\n
     324\/1998   in   the   Court   of   Civil   Judge,   Junior   Division, <\/p>\n
     Ahmednagar.     The   suit   was   filed   for   partition   and   separate <\/p>\n
     possession in respect of agricultural lands bearing G.Nos.304, 391, <\/p>\n
     86, 392, 396 and 401, situate at village Jakhangaon, Taluka and <\/p>\n
     District   Ahmednagar.     It   is   the   case   of   the   petitioner   that <\/p>\n
     Sindhubai – Respondent No.1 herein was original defendant no.1 in <\/p>\n
     the said suit, which was filed in the year 1998.   Petitioner herein <\/p>\n
     and Respondent No.2 herein were not party to the said suit.\n<\/p>\n
     5              It is the contention of the petitioner that agricultural <\/p>\n
     lands, which were subject matter of the suit, which was filed in the <\/p>\n
     year   1998,   were   possessed   and   owned   by   Baburao   Shinde   i.e. <\/p>\n
     father of present Respondent Nos.1 and 3 to 5.   Baburao Shinde <\/p>\n
     expired on 26.01.1996.  Said suit came to be decreed on 22.01.1999 <\/p>\n
     on the basis of compromise deed.\n<\/p>\n
                    On   17.09.2007,   Respondent   No.1   herein   filed   Regular <\/p>\n
     Civil   Suit   No.368\/2007   in   the   Court   of   Civil   Judge,   Senior <\/p>\n
     Division, Ahmednagar.  According to the petitioner, in the said suit, <\/p>\n
     it   is   contended   that   the   partition   effected   on   22.01.1999   on   the <\/p>\n
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\n                                             {4}<\/p>\n
     basis   of   compromise   deed   is   not   binding   on   the   plaintiff   –\n<\/p>\n
     Respondent   No.1   herein   as   the   same   has   been   effected   by <\/p>\n
     committing fraud by Respondents No.3 to 5 herein.  It is averred in <\/p>\n
     the   said   suit   that,   compromise   has   been   effected   between   the <\/p>\n
     parties,   however,   the   plaintiff   –   Respondent   No.1   herein   has   not <\/p>\n
     been given share in the suit property.   It is prayed in the said suit <\/p>\n
     that the compromise deed dated 22.01.1999 may be cancelled and <\/p>\n
     Respondent No.1 may be granted 1\/4th share in the suit properties.\n<\/p>\n
     6<\/span><\/p>\n
                   It is further case of the petitioner that on 10.10.2008, <\/p>\n
     petitioner   filed  written  statement   and   contended  that   the   suit   is <\/p>\n
     not   maintainable   under   Order   23   Rule   3   of   the   Code   of   Civil <\/p>\n
     Procedure.  The suit is barred by non joinder of necessary parties.\n<\/p>\n
     The petitioner is in possession of the suit land and is cultivating <\/p>\n
     the same.   As per the compromise deed, mutation entry no.1495 <\/p>\n
     has   already   been   effected   on   11.01.2000   and   the   same   has   not <\/p>\n
     been challenged by Respondent No.1 i.e. original plaintiff.\n<\/p>\n
                   Respondent   No.3   has   also   filed   written   statement   on <\/p>\n
     15.03.2008 and opposed the suit.\n<\/p>\n
     7             It   is   the   case   of   the   petitioner   that   on   23.01.2009, <\/p>\n
     original   plaintiff   –   Respondent   No.1   filed   application   below <\/p>\n
     Exhibit-28, thereby seeking amendment in the plaint.  In the said <\/p>\n
     application,   prayer   was   made   to   add   \/   include   the   properties <\/p>\n
     situate at Rasta Peth, Pune.  It is the case of the petitioner that the <\/p>\n
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\n                                               {5}<\/p>\n
     said   properties   i.e.   CTS   No.483\/1,   admeasuring   50.2   square <\/p>\n
     meters, CTS No.364\/1, admeasuring 23.4 square meters, CTS No.<\/p>\n
     364\/2A,   admeasuring   8.2   square   meters   and   CTS   No.364\/2B, <\/p>\n
     were owned by joint family and owned by Purushottam Kisanrao <\/p>\n
     Jagtap i.e. father-in-law of Respondent No.1 – original plaintiff.\n<\/p>\n
                    It is the case of the petitioner that the  suit, which was <\/p>\n
     filed   by   Respondent   No.1,   was   seeking   partition   in   her   father’s <\/p>\n
     property.   However, in the said suit, she has filed application for <\/p>\n
     amendment below Exhibit-28 praying therein for inclusion of joint <\/p>\n
     family   properties   owned   by   her   father-in-law.     Respondent   No.3 <\/p>\n
     herein filed her say at Exhibit-30 and opposed the application for <\/p>\n
     amendment.\n<\/p>\n
     8              On   20.08.2009,   the   4th  Joint   Civil   Judge,   Senior <\/p>\n
     Division,   Ahmednagar,   allowed   the   application   filed   by   original <\/p>\n
     plaintiff   –   Respondent   No.1   herein   for   amendment   below <\/p>\n
     Exhibit-28.    It  is   the  submission  of   the  learned  Counsel   for   the <\/p>\n
     petitioner   that   the   trial   Court   erred   in   not   appreciating   the <\/p>\n
     inconsistent   pleas   taken   by   Respondent   No.1   –   original   plaintiff, <\/p>\n
     which is impermissible in the eyes of law.  It is further contention <\/p>\n
     of the petitioner that the trial Court erred in not appreciating that <\/p>\n
     in the life time of her husband, Respondent No.1 – original plaintiff <\/p>\n
     cannot seek partition of the properties owned by her father-in-law.\n<\/p>\n
     It   is   further   contention   of   the   petitioner   that   the   suit   raises   a <\/p>\n
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\n                                                {6}<\/p>\n
     challenge   to   the   compromise   deed   dated   22.01.1999   and   a   relief <\/p>\n
     ancillary to it.  However, it no where includes and\/or is related to <\/p>\n
     the joint family properties of father-in-law of plaintiff \/ Respondent <\/p>\n
     No.1 herein, more so, which are situated at Pune.\n<\/p>\n
                    It is the contention of the petitioner that the trial Court <\/p>\n
     wrongly allowed the application filed by Respondent No.1 subject to <\/p>\n
     the condition to correct the valuation of the suit and to pay the <\/p>\n
     requisite   court   fee.     It   is   the   case   of   the   petitioner   that   while <\/p>\n
     passing   the   order,   the   trial   Court   imposed   a   condition   for   the <\/p>\n
     purpose   of   allowing   the   application  for   amendment  and   directed <\/p>\n
     original   plaintiff   –   Respondent   No.1   herein   to   pay   the   requisite <\/p>\n
     court   fee.     It   is   further   case   of   the   petitioner   that   without <\/p>\n
     complying   the   condition   in   respect   of   payment   of   court   fee, <\/p>\n
     Respondent   No.1   –   original   plaintiff,   on   01.09.2009,   carried   out <\/p>\n
     amendment to the plaint of Regular Civil Suit No.368\/2007.\n<\/p>\n
     9              It   is   the   contention   of   the   petitioner   that   original <\/p>\n
     plaintiff – Respondent No.1 filed an application below  Exhibit-36 <\/p>\n
     on   06.01.2010  thereby  seeking   exemption  from  payment   of  court <\/p>\n
     fee.  It is the case of the petitioner that Respondent No.3 herein did <\/p>\n
     file   her   say   at   Exhibit-38   to   application   below   Exhibit-36   and <\/p>\n
     specifically   contended   that   Respondent   No.1   is   deliberately <\/p>\n
     avoiding   to   pay   the   court   fee   and   as   such,   application   below <\/p>\n
     Exhibit-36   requires   to   be   rejected.     It   is   further   stated   that <\/p>\n
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\n                                            {7}<\/p>\n
     Purushottam   Kisanrao   Jagtap,   father   in   law   of   original <\/p>\n
     plaintiff\/Respondent No.1 herein expired on 20.11.1984 and by way <\/p>\n
     of will deed, all his properties have been transferred in the names <\/p>\n
     of his grandsons i.e. petitioner and Respondent No.2.  It is further <\/p>\n
     stated that one Santosh Vasanrao Jagtap has not been added as <\/p>\n
     party to the suit and as  such,  Respondent No.1 – original plaintiff <\/p>\n
     cannot be the beneficiary of the properties sought to be added by <\/p>\n
     way of amendment.  It is the case of the petitioner that provisions <\/p>\n
     of   Section     46   of   Bombay   Court   Fees   Act   cannot   be   made <\/p>\n
     applicable   and   the   plaintiff   cannot   be   granted   exemption   from <\/p>\n
     payment of court fee.   It is not in dispute that application below <\/p>\n
     Exhibit-36 is yet pending before the trial Court.\n<\/p>\n
     10            The   petitioner   herein,   on   09.07.2010,   filed   an <\/p>\n
     application   below   Exhibit-44   in   the   pending   suit   under   the <\/p>\n
     provisions of Order 39 Rule 11 of the Civil Procedure Code.  It was <\/p>\n
     stated in the said application that application filed by the plaintiff <\/p>\n
     – Respondent No.1 herein came to be allowed subject to correcting <\/p>\n
     valuation   of   the   suit   and   on   payment   of   requisite   court   fee, <\/p>\n
     however, Respondent No.1 – original plaintiff neither given correct <\/p>\n
     valuation nor has deposited the requisite court fee.  It was further <\/p>\n
     stated in the said application that plaintiff – Respondent No.1 has <\/p>\n
     not   challenged   the   order   passed   on   the   application   below <\/p>\n
     Exhibit-28 and as such, the same is binding on Respondent No.1 <\/p>\n
     and, therefore, the suit is liable to be dismissed as per Order 39 <\/p>\n
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\n                                                {8}<\/p>\n
     Rule   11   of   the   Code   of   Civil   Procedure.     The   original   plaintiff   –\n<\/p>\n
     Respondent No.1 herein filed say opposing the application filed by <\/p>\n
     the petitioner.\n<\/p>\n
     11             Learned   5th  Joint   Civil   Judge,   Senior   Division, <\/p>\n
     Ahmednagar, rejected petitioner’s application below Exhibit-44.  It <\/p>\n
     is the contention of the Counsel appearing for the petitioner that <\/p>\n
     the trial Court was not correct in holding that the suit is in respect <\/p>\n
     of   matrimonial   matter   and   as   such,   plaintiff   –   Respondent   No.1 <\/p>\n
     herein is exempted from payment of court fee.  It is submitted that <\/p>\n
     the dispute, which does not relate to matrimonial cause, is outside <\/p>\n
     the   purview   of   the   special   Notification,   which   allows   exemption <\/p>\n
     from payment of court fee to woman litigants.  Learned Counsel for <\/p>\n
     the petitioner has invited my attention to the Notifications issued <\/p>\n
     by the Government of Maharashtra on 01.10.1994 and 23.03.2000 <\/p>\n
     and submitted that only in cases where dispute arises out of and <\/p>\n
     concerning   to   matrimonial   causes,   the   woman   litigants   are <\/p>\n
     exempted from payment of court fee.  However, in the present case, <\/p>\n
     suit is filed for partition and possession.   It is further submitted <\/p>\n
     that   original   suit   was   filed   challenging   the   compromise   deed <\/p>\n
     effected on 22.01.1999 and by way of application for amendment of <\/p>\n
     the   plaint,   a   prayer   for   partition   of   the   properties   belonging   to <\/p>\n
     father-in-law of Respondent No.1 is added. Therefore, according to <\/p>\n
     the   learned   Counsel   for   the   petitioner   that   the   suit   with   added <\/p>\n
     prayer  in respect of partition of the properties of father-in-law, in <\/p>\n
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\n                                             {9}<\/p>\n
     the   absence   of   adding   surviving   husband   as   party,   cannot   be <\/p>\n
     termed   as   matrimonial   cause   and,   therefore,   according   to   the <\/p>\n
     learned Counsel for the petitioner, order passed by the trial Court, <\/p>\n
     exempting Respondent No.1 from payment of court fee, cannot be <\/p>\n
     sustained in view of the Notifications issued by the Government of <\/p>\n
     Maharashtra   and   law   laid   down   by   this   Court   in   the   case   of <\/p>\n
     Prabhakar   Dayaram   Narkhede   Vs.   Vijaya   alias   Shakuntala <\/p>\n
     Ghanshyam   Chaudhari,   reported   in   2007   (3)   Bom.C.R.   722.\n<\/p>\n
     Learned Counsel submits that, in that case also, prayer in the suit <\/p>\n
     was for declaration, partition along with possession in respect of <\/p>\n
     ancestral properties.   However, this Court has taken a view that <\/p>\n
     such dispute, which was raised in that case, falls outside the realm <\/p>\n
     of expression “matrimonial dispute”.   Therefore, according to the <\/p>\n
     learned   Counsel   for   the   petitioner,   said   authoritative <\/p>\n
     pronouncement of this Court is squarely applicable in the facts of <\/p>\n
     this case.\n<\/p>\n
     12             It   is   further   submitted   that   application   filed   by <\/p>\n
     Respondent   No.1   herein   –   original   plaintiff   below   Exhibit-28   for <\/p>\n
     amendment of the plaint should not have been allowed by the trial <\/p>\n
     Court since, firstly, the properties are situate at Rasta Peth, Pune, <\/p>\n
     secondly, husband is not made party  to the suit  by  the plaintiff <\/p>\n
     and   thirdly,   original   suit   is   for   declaration   and   cancellation   of <\/p>\n
     compromise   deed   dated   22.01.1999   in   respect   of   properties   of <\/p>\n
     father of Respondent No.1 and Respondents No.3 to 5.  Therefore, <\/p>\n
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\n                                               {10}<\/p>\n
     according   to   the   Counsel   for   the   petitioner,   if   at   all   plaintiff   –\n<\/p>\n
     Respondent No.1 herein wanted to file suit for partition in respect <\/p>\n
     of properties belonging to her  father-in-law, in that case, such suit <\/p>\n
     should have been filed in the competent Court at Pune.  He further <\/p>\n
     submits that Respondent No.2 herein filed Regular Civil Suit No.<\/p>\n
     739\/2008 before the Court of Civil Judge, Senior Division at Pune.\n<\/p>\n
     However,   learned   Counsel   appearing   for   Respondents   No.1   &   2 <\/p>\n
     submits that said suit has been withdrawn on 18.02.2009.\n<\/p>\n
     13<\/span><\/p>\n
                    Relying   upon   the   grounds   taken   in   the   petition, <\/p>\n
     annexures thereto, Notifications mentioned hereinabove issued by <\/p>\n
     the Government of Maharashtra and the judgment of this Court in <\/p>\n
     the case of  Prabhakar  (supra), learned Counsel for the petitioner <\/p>\n
     would   submit   that   the   order   dated   20.08.2009,   passed   below <\/p>\n
     Exhibit-28   and   order   dated   17.07.2010,   passed   below   Exhibit-44 <\/p>\n
     deserve to be quashed and set aside.\n<\/p>\n
     14             On the other hand, learned Counsel for Respondents <\/p>\n
     No.1 & 2, has invited my attention to the provisions of Section 17 of <\/p>\n
     the Civil Procedure Code and submits that though the properties <\/p>\n
     are situate at Pune, Respondent No.1 – original plaintiff can very <\/p>\n
     well file suit in respect of the said properties at Ahmednagar and <\/p>\n
     as   such   suit   is   filed   and   application   for   amendment   has   been <\/p>\n
     rightly entertained by the concerned Court.   It is submitted that <\/p>\n
     the   application   for   amendment   of   the   plaint   i.e.   for   adding <\/p>\n
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\n                                              {11}<\/p>\n
     properties belonging to the father-in-law is perfectly maintainable.\n<\/p>\n
     Therefore, according to the learned Counsel for Respondents No.1 <\/p>\n
     and   2,   since   the   application   filed   by   Respondent   No.1   –   original <\/p>\n
     plaintiff for amendment of the plaint was in respect of properties <\/p>\n
     owned by her father-in-law, that amounts to matrimonial dispute <\/p>\n
     and, therefore, the order passed by the trial Court exempting the <\/p>\n
     plaintiff   –   Respondent   No.1   herein   from   payment   of   court   fee   is <\/p>\n
     perfectly   sustainable   in   law.     Learned   Counsel   has   invited   my <\/p>\n
     attention   to   the   reported   judgment   of   this   Court   in   the   case   of <\/p>\n
     Manoramabai Keshav Joshi Vs. Arun Keshav Joshi & another, <\/p>\n
     reported   in   2008   (1)   Bom.   C.R.   667   and   submitted   that   in   that <\/p>\n
     case   also,   this   Court   has   considered   both   the   Notifications   and <\/p>\n
     held that if the property in respect of which   dispute was raised, <\/p>\n
     belongs to husband and if husband is no more and, therefore, in <\/p>\n
     respect   of  such  properties  if  the  dispute  is  filed  by  wife, in  that <\/p>\n
     case, it amounts to matrimonial dispute and, therefore, petitioner <\/p>\n
     therein was exempted from payment of court fees.\n<\/p>\n
     15             I   have   given   due   consideration   to   the   rival <\/p>\n
     submissions.   I have carefully gone through the orders impugned <\/p>\n
     in this petition.  The order below Exhibit-28 is passed by the trial <\/p>\n
     Court on the application filed by Respondent No.1 for amendment <\/p>\n
     of   the   plaint.     In   my   considered   view,   such   application,   thereby <\/p>\n
     praying for adding properties of father-in-law, in the suit which was <\/p>\n
     originally  filed  challenging  the  compromise  deed  in  Regular   Civil <\/p>\n
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\n                                              {12}<\/p>\n
     Suit No.324\/1998 should not have been allowed by the trial Court.\n<\/p>\n
     By way of application for amendment, Respondent No.1 herein has <\/p>\n
     prayed a totally different relief in respect of the properties of her <\/p>\n
     father-in-law.  The relief, which was claimed by way of amendment, <\/p>\n
     was for partition and possession of the properties belonging to the <\/p>\n
     father-in-law.     Admittedly,   husband   of   plaintiff   is   not   added   as <\/p>\n
     party defendant in the said suit.  The trial Court has not recorded <\/p>\n
     any finding in respect of the objection raised by petitioner herein <\/p>\n
     that  husband of Respondent  No.1 is alive and when husband of <\/p>\n
     plaintiff is alive, how such suit is maintainable, which is filed by <\/p>\n
     the   wife   for   partition   of   the   properties,   which   are   owned   by   her <\/p>\n
     father-in-law.   Second thing is that, admittedly, on the date when <\/p>\n
     such application for amendment was filed by the plaintiff i.e. for <\/p>\n
     adding  the properties of her father-in-law, Regular  Civil Suit No.<\/p>\n
     739\/2008 was pending before the competent Court at Pune.  It is <\/p>\n
     not in dispute that the properties, which Respondent No.1 wanted <\/p>\n
     to add by  way  of amendment  in  the plaint, are situate  at  Pune.\n<\/p>\n
     Therefore, in my considered view, the 4th Joint Civil Judge, Senior <\/p>\n
     Division, Pune, has wrongly allowed such application.  It was open <\/p>\n
     for the plaintiff – Respondent No.1 herein to file a separate suit for <\/p>\n
     partition and possession of the properties owned by her father-in-\n<\/p>\n
     law   before   the   competent   Court.     The   learned   Judge   has   not <\/p>\n
     addressed the issue raised by the petitioner herein that husband of <\/p>\n
     Respondent   No.1   is   alive   and   without   making   him   party,   suit   is <\/p>\n
     filed by the wife.  In fact, the learned Judge should have addressed <\/p>\n
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\n                                             {13}<\/p>\n
     this   issue   first   and   then   should   have   proceeded   to   pass   final <\/p>\n
     orders.  Therefore, in my considered view, the 4th Joint Civil Judge, <\/p>\n
     Senior   Division,   Ahmednagar,   should   not   have   allowed   the <\/p>\n
     application filed by Respondent No.1 for amendment of the plaint <\/p>\n
     i.e.   for   adding   the   properties   owned   by   her   father-in-law   and   to <\/p>\n
     pray for partition of such properties.\n<\/p>\n
     16             Coming to the order  dated 17.07.2010, passed by the <\/p>\n
     5th  Joint   Civil   Judge,   Senior   Division,   Aurangabad,   below <\/p>\n
     application   Exhibit-44   in   Regular   Civil   Suit   No.368\/2007,   on <\/p>\n
     careful perusal of the said order, it reveals that not a single reason <\/p>\n
     has been assigned by the Court below as to why application filed <\/p>\n
     by the petitioner has been rejected and as to why Respondent No.1 <\/p>\n
     should be exempted from payment of court fee.   Respondent No.1 <\/p>\n
     has not referred to any particular provision, notification or relied <\/p>\n
     upon any judgment under which she is entitled for exemption from <\/p>\n
     payment of court fee.  If the learned Judge was convinced to pass <\/p>\n
     order   granting   exemption   to   Respondent   No.1   from   payment   of <\/p>\n
     court fees, certainly reasons should have been assigned in the said <\/p>\n
     order.   However, from careful reading of the said order, it reveals <\/p>\n
     that the said order is totally silent  and no reasons are assigned <\/p>\n
     while exempting Respondent No.1 from payment of court fee.\n<\/p>\n
     17             Though,   learned   Counsel   appearing   for   Respondents <\/p>\n
     No.1 and 2, strenuously contended that the judgment of this Court <\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 17:45:56 :::<\/span>
\n                                                {14}<\/p>\n
     in the case of Manoramabai (supra) takes a view that if the widow <\/p>\n
     has filed proceedings in respect of properties owned by husband <\/p>\n
     and if husband is dead, and the wife has claimed possession of the <\/p>\n
     said property, in that case, wife is exempted from payment of court <\/p>\n
     fees.     On   careful   reading   of   the   facts   of   that   case,   it   is   clearly <\/p>\n
     emerged that husband of the petitioner therein was no more and <\/p>\n
     dispute was regarding house owned by the husband, and wife did <\/p>\n
     file   proceedings   in   respect   of   said   house.     In   the   instant   case, <\/p>\n
     Respondent No.1 herein has filed application for amendment of the <\/p>\n
     plaint seeking therein adding of the properties of her father-in-law <\/p>\n
     and claiming relief of partition and possession in the suit, which <\/p>\n
     was   originally   filed   for   altogether   different   reliefs.     Secondly, <\/p>\n
     admittedly, husband is not party to the suit or application which <\/p>\n
     was   filed   for   amendment.     Thirdly,   the   properties   are   situate   at <\/p>\n
     Pune.     Therefore,   in   my   considered   opinion,   if   the   order   dated <\/p>\n
     20.08.2009, passed below application Exhibit-28 is quashed and <\/p>\n
     set aside, the order dated 17.07.2010, below application Exhibit-44 <\/p>\n
     has   to  go   since   the   application   for   amendment   should   not   have <\/p>\n
     been allowed by the trial Court.  The facts of the case cited by the <\/p>\n
     Counsel   for   the   petitioner   in   the   case   of  Prabhakar  (supra)   are <\/p>\n
     similar to the facts in the present case.   This Court, in the cited <\/p>\n
     judgment, has taken a view that if the suit is filed for declaration <\/p>\n
     and   partition   along   with   separate   possession   in   respect   of <\/p>\n
     ancestral properties, in that case, the dispute is outside the realm <\/p>\n
     of expression “matrimonial dispute”.\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 17:45:56 :::<\/span><\/p>\n
                                          {15}<\/p>\n
     18           For the reasons stated hereinabove, both the orders i.e. <\/p>\n
     the order dated 17.07.2010, passed by 5th Joint Civil Judge, Senior <\/p>\n
     Division,   Ahmednagar,   below   application   Exhibit-44   in   Regular <\/p>\n
     Civil Suit No.368\/2007; and order dated 20.08.2009, passed by 4th <\/p>\n
     Joint Civil Judge, Senior Division, Ahmednagar, below application <\/p>\n
     Exhibit-28 in Regular Civil Suit No.368\/2007, are quashed and set <\/p>\n
     aside.\n<\/p>\n
     19<\/span><\/p>\n
                  Rule is made absolute to the above extent and petition <\/p>\n
     stands disposed of.   In the facts and circumstances of this case, <\/p>\n
     there shall be no order as to costs.\n<\/p>\n
                                                  S.S.SHINDE<\/p>\n
                                                     JUDGE<\/p>\n
     adb\/wp807210<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 17:45:56 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Vijay vs 5 Sau.Sharda Balasaheb Lonkar on 22 September, 2011 Bench: S. S. Shinde {1} 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-146013","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nVijay vs 5 Sau.Sharda Balasaheb Lonkar on 22 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vijay-vs-5-sau-sharda-balasaheb-lonkar-on-22-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vijay vs 5 Sau.Sharda Balasaheb Lonkar on 22 September, 2011 - 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