Bombay High Court
Maroti S/O Motiram Ramteke And ... vs Pralhad S/O Chintamanji Ramteke ... on 20 June, 2017
Bench: I.K. Jain
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5094 OF 2016
01] Maroti s/o Motiram Ramteke,
Aged about 39 years, Occu. : Service.
02] Pursuhottam s/o Motiram Ramteke,
Aged about 41 years, Occu. : Agriculturist.
03] Sau. Manda w/o Prushottam Ramteke,
Aged about 35 years, Occu. : Agriculturist.
04] Sant Vidhehi Motiram Baba
Ashram Sawarbandh, through
Vasant s/o Motiram Bendwar,
aged about 60 years,
All petitioners are r/o Sawarbandh,
Tah. Sakoli, Dist. Bhandara. .... Petitioners
-- Versus -
01] Pralhad s/o Chintamanji Ramteke,
Aged about 59 years, Occu. : Agriculturist,
R/o Sawarbandh, Tah. Sakoli, Dist. Bhandara.
02] Manik s/o Chintamanji Ramteke,
Aged about 54 years, Occu. : Service,
R/o Plot No.6, New Binaki Mangalwari,
Behind Siddartha School, Nagpur - 17. .... Respondents
Shri N.B. Kalwaghe, Advocate for the Petitioners.
Shri Y.B. Mandpe, Advocate for Respondent No.1.
None appeared for Respondent No.2.
CORAM : KUM. INDIRA JAIN, J.
DATE : JUNE 20, 2017.
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ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard finally
by consent of the learned Counsel for the parties.
02] The challenge in petition is to the order dated
27/06/2016 passed by learned Civil Judge Junior Division, Sakoli,
District Bhandara rejecting application for amendment preferred
by defendants.
03] Respondents/plaintiffs filed suit for declaration,
partition and separate possession. That suit was registered as
Regular Civil Suit No.110/2007. Vide judgment and decree dated
22/10/2010, suit was partly decreed and 1/3 rd share each to the
parties came to be granted.
04] Being aggrieved by the judgment and decree,
petitioners/ defendants preferred appeal before the District
Court, Bhandara. The appeal was allowed on the ground of
pecuniary jurisdiction. The learned Principal District Judge,
Bhandara vide judgment and decree dated 13/04/2015 held that
trial Court had no pecuniary jurisdiction and the suit was not
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maintainable for want of pecuniary jurisdiction. While allowing
the appeal, matter was remanded with direction to the trial Court
to decide the suit afresh by affording opportunity to plaintiffs to
make proper valuation of the suit and to pay requisite court fee
and opportunity of hearing to both the sides.
05] After matter was remanded, petitioners filed an
application [Exh.97] for amendment under Order VI Rule 17 of
the Code of Civil Procedure. Two contentions were raised by
proposed amendment (i) regarding partial partition and (ii)
regarding valuation of the suit. Application was objected by
plaintiffs. The trial Court vide order dated 27/06/2016 observed
that suit was remanded for restricted purpose to the extent of
valuation and rejected the proposed amendment. Being
aggrieved, original defendants have preferred this writ petition.
06] The limited question in the petition is whether suit
was remanded to the extent of valuation of suit or for decision
on merits after ascertaining the valuation of the suit. The
operative order passed by the learned Principal Judge in R.C.A.
No.145/2008 reads as under :
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1. Appeal is hereby allowed with cost.
2. Impugned judgment and decree dated 22nd October,
2010 passed in Regular Civil Suit No.110/2007 Pralhad
and one other ....Vs.... Maroti and 3 others, by the
Court of Joint Civil Judge Junior Division, Sakoli is
hereby set aside and suit is remanded to the Court of
Civil Judge Junior Division, Sakoli for decision afresh by
affording opportunity to the plaintiffs to make
valuation of the suit properly and to pay requisite
Court Fee and hearing opportunity to both parties.
3. Respondents shall pay cost of appeal to appellants
and bear their own cost.
4. Parties are directed to appear before trial Court on
22/04/2015.
5. As suit under reference is of a age more than 5 years,
trial Court is hereby directed to decide it by the end of
July, 2015.
6. Decree be drawn up accordingly.
07] It can be seen from the judgment of the Appellate
Court that valuation of the suit according to the Appellate Court
was not properly made as relief of declaration was also sought
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by the plaintiffs. Once the Appellate Court held that trial Court
had no pecuniary jurisdiction and sets aside the impugned
judgment and decree in suit with a direction to decide the suit
afresh, it cannot be accepted that suit was remanded for a
limited purpose i.e. for ascertaining the valuation.
08] The proposed amendment as indicated above relates
to valuation of suit and relief of partial partition claimed by the
plaintiffs. It does not change the nature of suit. On the contrary,
it is essential to decide the real controversy between the parties.
The observations made by the trial Court for rejection of
amendment application are not in consonance with the order
passed by the Appellate Court. Interference is thus warranted in
writ jurisdiction. Hence, the following order.
ORDER
i. Writ Petition No.5094/2016 is partly allowed.
ii. Impugned order dated 27/06/2016 passed by the Civil
Judge Junior Division, Sakoli below application
[Exh.97] in R.C.S. No.110/2007 is quashed and set
aside.
iii. Application [Exh.97] is allowed.
iv. Petitioners to carryout amendment within a period of
two weeks.
v. Parties to appear before the trial Court on 30 th June,
2017.
vi. Trial Court to proceed and decide the suit in
accordance with the law and as per the direction of
the first Appellate Court.
vii. Rule is made absolute in the above terms with no
order as to costs.
*sdw JUDGE
