Bombay High Court
Mrs. Priya Sachin Shahane Through ... vs M/S Parekh Paper Agencies Pvt. ... on 11 December, 2017
Bench: Dr. Shalini Phansalkar-Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13090 OF 2016
Mrs.Priya Sachin Shahane
Through her CA, Mr.Bandekar & Anr. ... Petitioners
V/s.
M/s.Parekh Paper Agencies Pvt. Ltd. & Ors. ... Respondents
Mr.Sanjay Chitale for the Petitioners.
Mr.V.A.Shastry for the Respondents.
CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
DATE : 11th DECEMBER, 2017.
ORAL JUDGMENT :
1] Heard learned counsel for the Petitioners and the
Respondents.
2] Rule. Rule made returnable forthwith as the issue involved
in this petition is short one.
3] By this petition original Defendant No.3 and 4 are
challenging the order dated 14th June, 2016, below Exh.108, passed by
Jt.Civil Judge Junior Division, Vadgaon Maval in Regular Civil Suit
No.60 of 2006.
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4] By the impugned order the application filed by the
Petitioners herein for framing the additional issues came to be allowed
partly. The Petitioners has sought framing of following four issues as
additional one.
"(a) Whether Plaintiff proves that the addresses given of
Defendant Nos.1 and 2 given in the plaint were correct
addresses on the date of the suit and whether Defendant
Nos.1 and 2 are "duly served" with the suit summons on
their respective correct addresses having regard to the
provisions contained in terms of O.6 R.14-A(5) C.P. Code
(Bombay Amendment) is committed?
(b) Whether valuation of the suit claim as made by Plaintiff
in its plaint is correct and proper?
(c) Whether Defendants prove that the agreement
dt.19.12.1981 was duly terminated by Defendant No.1
on account of sustained defaults on part of Plaintiff to
pay the agreed balance consideration at mutually agreed
point of time?
(d) Whether on the date of the suit, Plaintiff had any
enforceable legal rights arising under the agreement
dt.19.12.1981?"
5] By the impugned order the learned Trial Court allowed the
framing of additional issue No.(c) only. i.e.
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(c) Whether Defendants prove that the agreement
dt.19.12.1981 was duly terminated by Defendant No.1
on account of sustained defaults on part of Plaintiff to
pay the agreed balance consideration at mutually agreed
point of time?
6] As regards the issue No.(b), the learned Trial Court held
that the Respondent herein is claiming only the relief of injunction on
the basis of possession over the suit property and accordingly he has
valued the suit claim under Section 6(4-J) of Maharashtra Court Fees
Act. According to learned counsel for the Petitioners, however, the
valuation should have been made on the consideration amount
mentioned in the agreement to sale. In the opinion of this Court, when
the suit is simplicitor for injunction and for no other relief even of
declaration that the agreement executed by the owner in favour of
Defendant No.1 is not binding on the share of the Plaintiffs, no
question arises of the Plaintiffs paying any additional Court Fees on the
valuation of the sale deed and therefore, the valuation of the suit claim
being proper, there is no necessity of framing such issue.
7] As regards the issue No.(a) i.e. As to whether the Defendant
Nos. 1 and 2 were duly served on the address given in the plaint? : Once
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Defendant Nos.1 and 2 have appeared in the suit, this issue becomes
redundant and therefore, learned Trial Court has rightly refused to
frame that issue.
8] Even as regards issue No.(d) i.e. As to whether on the date
of suit, Plaintiff had any enforceable legal rights arising under the
agreement dt.19.12.1981? : This issue being in the nature of
consequential relief, there is no necessity of framing the said issue,
once the issue No.(c) i.e. Whether Defendants prove that the agreement
dt.19.12.1981 was duly terminated by Defendant No.1 on account of
sustained defaults on part of Plaintiff to pay the agreed balance
consideration at mutually agreed point of time?, is framed.
9] Therefore, the impugned order passed by the trial Court
being just, legal and correct, no interference is warranted therein.
10] The Writ Petition, hence, stands dismissed.
Rule is discharged.
[DR.SHALINI PHANSALKAR-JOSHI, J.]
