Bombay High Court
Smt. Sucheta W/O Sachin Iyer vs Sumukh S/O Mukesh Mishra on 4 July, 2017
Bench: I.K. Jain
WP 4357.16.odt 1
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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WP 4357.16.odt 3
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.
(Kum. Indira Jain, J.)
Gulande, PA
