Bhaktiram Visharm Rathod vs Amrutlal Vishram Rathod Died Th L ...
2016 Latest Caselaw 3650 Bom

                                         1                  WP-1545.16.doc


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                        
                         BENCH AT AURANGABAD

                          WRIT PETITION NO. 1545 OF 2016




                                                
     Bhaktiram s/o Visharm Rathod
     Age: 80 years, Occu. Household,
     R/o. Bus Stand Road, Parbhani




                                               
     Tq. and Dist. Parbhani                             ... Petitioner
                                                    [Ori. Defendant]

              VERSUS




                                      
     1]       Amrutlal s/o Vishram Rathod (Died),
              Through his Legal heirs
                             
     1-A] Dhangauri w/o Amrutlal Rathod,
          Age: 84 years, Occu. Business,
                            
     1-B] Kiran s/o Amrutlal Rathod,
          Age: 55 years, Occu. Business,

     1-C] Manoj Amrutlal Rathod,
      


          Age: 57 years, Occu. Business,
   



     1-D] Satish s/o Amrutlal Rathod
          Age: 55 years, Occu. Business,

     1-E] Pradip s/o Amrutlal Rathod,





          Age: 53 years, Occu. Business,

     1-F] Hemant s/o Amrutlal Rathod,
          Age: 51 years, Ocu. Business,

     1-G] Bhavana d/o Amrutlal Vigad





          Age: 49 years, Occu. Business,

     1-H] Bharati d/o Dinesh Chawada,
          Age: 48 years, Occu. Household

              All above R/o at Jail Road,
              Nawa Sahi, Keonjhar P. S. Town,
              Dist. Keonjhar (Orissa)
              Through General power of attorney holder,




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              Ishwarlal s/o Vishram Rathod,




                                                                          
              Age: 76 years, Occu. Business,
              R/o: Samarth Nagar, Aurangabad




                                                  
     2]       Jayantilal s/o Vishram Rathod (Died),
              Through his Legal heirs

     2-A] Pushpa w/o Jayantilal Rathod (Died)




                                                 
     3]       Ishwarlal s/o Vishram Rathod,
              Age: 75 years, Occu. Business,
              R/o: Samarth Nagar, Aurangabad




                                       
     4]       Manjula w/o Prabulal Chawda,
              Age: 73 years, Occu. Household,
                             
              R/o: Sinhgad, Pune

     5]       Usha w/o Shyamji Rathod,
                            
              Age: 69 years, Occu: Household,
              R/o. Railway Colony, Daund,
              Tq. Daund Dist. Pune

     6]       Damyanti w/o Jagdish Chavan,
      


              Age: 65 years, Occu: Household,
              R/o: Flat No.2,
   



              Krishnadhan Apartment,
              Kutibiguda, Hyderabad, A.P. State           ... Respondents
                                                        [ Orig. Plaintiffs]
                                    .....





     Mr. Amit A. Mukhedkar, Advocate for petitioner
     Mr. M. P. Kale, Advocate for respondents
                                    .....


                                   CORAM :   SUNIL P. DESHMUKH, J.

DATE : 07th JULY, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard with

consent of learned counsel of the parties, finally.

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2. The petitioner-original defendant purports to have been

aggrieved by order dated 04th January, 2016 passed by Joint

Civil Judge, Senior Division, Parbhani, on Exhibit-113 in

Special Civil Suit No. 28 of 2012, whereunder, the request

made by defendant to decide the issue of deficit court fees,

first, has been turned down. The learned judge has taken

stock of the situation and has given reasons in paragraph

No.7 of the order impugned, which is reproduced herein below

for ready reference.

.....................

....................

" 07. In view of the above provision and considering the facts and circumstances of the case, the issue is not related with jurisdiction or bar by law therefore, I am accepting the

submission of learned counsel for plaintiffs that his is not a proper stage to decide the said issue first. On the contrary, I am of the opinion that, as evidence is recorded, it would be fit to

decide this issue on merit at the time of final judgment so that, the matter be disposed off on all issues. The defendant has already been adduced the evidence on this additional issue and if court comes to the conclusion that, plaintiff failed to pay proper court fees, same can be recovered from the plaintiffs through due procedure of law. It also be noted that the suit is for partition of

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the parties in which all the parties are plaintiffs. Therefore, the

parties who are getting their respective shares are required to pay court fees. As defendant is also a party to the suit, he also

required to pay court fee, if any. As the issue is not related with the jurisdiction and bar to the suit created by any law, therefore, I am satisfied that, there is no substance in this application rather,

it would be fit to decide the said issue along with other issues on merit. Hence, application is required to be rejected. Hence, it is rejected."

3.

Having regard to aforesaid reasons, this does not

appear to be a case wherein this court is required to invoke

its extra ordinary jurisdiction under the writ petition.

4. Writ petition, as such, is not being entertained and is

dismissed.

5. Rule is discharged.

6. Suit proceedings be proceeded with expeditiously.

( SUNIL P. DESHMUKH, J. )

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