Smt. Sucheta W/O Sachin Iyer vs Sumukh S/O Mukesh Mishra

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                      WRIT PETITION NO.4357 OF 2016

 Smt. Sucheta w/o Sachin Iyer,
 Aged about 41 years,
 Occupation-Business,
 Resident of "Girija", SBI Colony,
 Raj Nagar, Katol Road,
 Nagpur.                                           ..               PETITIONER
                                                                     (Original Defendant)



                               .. VERSUS ..

 Sumukh s/o Mukesh Mishra,
 Aged about 36 years,
 Occupation-Business,
 Resident of 'Amrit Smruti',
 Opposite Dhantoli Park,
 Balraj Marg, Nagpur.                              ..            RESPONDENT
                                                                   (Original Plaintiff)


                      ..........
 Shri R.S. Parsodkar, Advocate for Petitioner,
 Ms. Ira P. Khisti, Advocate for Respondent.
                      ..........

                               CORAM : KUM. INDIRA JAIN, J.
                               DATED : JULY 04, 2017.

 ORAL JUDGMENT


 1]             Rule. Rule made returnable forthwith. Heard finally

 with the consent of the learned counsel for parties.


 2]             The challenge in petition is to the orders dated

 15.1.2016 passed by the learned 6th Joint Civil Judge, Senior




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 Division, Nagpur below Exh.1 and 9.6.2016 below Exh.25 in

 Special Civil Suit No.904/2014.


 3]             Few facts relevant for deciding the petition are :

                (i)            Respondent       filed    Special         Civil      Suit

 No.904/2014             for   eviction   and      possession         against        the

 petitioner.           Petitioner appeared in suit and submitted her

 written statement and counter claim.                     As she did not pay

 court fee, trial court rejected counter claim of petitioner,

 vide order dated 15.1.2016 passed below Exh.1.

                (ii)           Thereafter,        petitioner         moved            an

 application (Exh.25) for setting aside order dated 15.1.2016

 and seeking permission to pay the court fee on counter

 claim. This application was rejected on 9.6.2016.                               Being

 aggrieved by the orders dated 15.1.2016 and 9.6.2016,

 petitioner has invoked the extra-ordinary jurisdiction of this

 court.


 4]             With the assistance of the learned counsel for the

 parties, this court has gone through the impugned orders.

 It is a matter of record that counter claim was filed along

 with the written statement.                 It appears that due to some

 delay caused on the part of petitioner, opportunity of

 payment of court fee on counter claim and filing of counter



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 claim was denied to him.          Perusal of application (Exh.25)

 would indicate that petitioner has expressed her readiness

 to deposit the court fee and stated that she made various

 attempts to arrange for payment of court fee, but due to

 some financial crunch, she could not deposit the court fee

 earlier.        These facts stated in the application are not

 countered by plaintiff in suit.


 5]             In such circumstances, hyper technical approach

 taken by the trial court needs to be interfered with in extra-

 ordinary jurisdiction with a view to avoid denial of justice to

 petitioner. Hence, the following order :

                               ORDER

(i) Writ Petition No.4357/2016 is allowed.

(ii) Rule is made absolute in terms of prayer clause

(a).

(iii) No costs.

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