Bombay High Court
Kisan Bahiru Kharmale vs The State Of Maharashtra Through ... on 3 October, 2017
Bench: R.V. Ghuge
WP/3073/2017
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3073 OF 2017
Kisan Bahiru Kharmale
Age 65 years, Occ. Agriculture
R/o Bhandgaon, Tq. Parner
District Ahmednagar. ..Petitioner
Versus
The State of Maharashtra
Through Government Pleader
High Court of Bombay,
Bench at Aurangabad. ..Respondent
...
Advocate for Petitioner : Shri Jayabhar D.R.
AGP for Respondents: Shri Kendre S.N.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: October 03, 2017
...
ORAL JUDGMENT :-
1. Heard the learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the
petition is taken up for final disposal.
4. The petitioner is aggrieved by the order dated
WP/3073/2017
13/02/2015 by which the L.A.R. No.234/2011 was rejected
under Order 7 Rule 11 of the Code of Civil Procedure as the
petitioner has failed to deposit the court fees and implement the
directions of the Court.
5. Having considered the strenuous submissions of the
learned Advocates for the petitioner and the learned AGP, I find
that though the petitioner has instituted the land reference case
in 2004, it was for the first time on 08/08/2011 that the said
proceedings were registered and the petitioner was directed to
deposit the court fees. A last chance was granted on
21/11/2012 by extending the period by 15 days. Yet, the
petitioner did not deposit the court fees. Finally, by the
impugned order dated 13/02/2015, the said proceedings were
rejected.
6. Section 148 of the CPC permits enlargement of time by
the Court whose directions have not been complied with by the
plaintiff. Any direction given by the Court, by which a litigating
side is to perform an act within a stipulated period, Section 148
would permit enlargement of time.
7. This Court, in the matter of Rajaram Dhanu Warade Vs
WP/3073/2017
The State of Maharashtra and another, WP No.6595/2012, has
observed in its order dated 31/10/2012 that the court fees can
be subsequently deposited. The proceedings u/s 18 were
therefore restored. Similar are the orders passed by this Court
on 13/10/2011 in WP No.7979/2011, order dated 08/03/2001
in Civil Revision Application No.180/2010 and the order dated
09/01/2017 passed by this Court in WP Nos.4654/2016,
4657/2016 and 4658/2016. In all these orders, this Court has
permitted the depositing of court fees and the restoration of the
LAR proceedings.
8. Considering the above and keeping in view that the doors
of litigation would be permanently closed on the petitioner if the
impugned order is not set aside, I find that this petition can be
allowed.
9. Learned AGP submits that no litigant should be permitted
to take advantage of its own law. From September 2011 till
September 2017, the petitioner failed to deposit the court fees.
His claim in the LAR proceeding would include a claim for
interest on the enhanced amount. Granting interest for the
period of delay would amount to rewarding the petitioner.
WP/3073/2017
10. Considering the above, this petition is partly allowed.
The impugned order dated 13/02/2015 is quashed and set aside
and LAR No.234/2011 is restored to the Court which has passed
the impugned order. The litigating sides are agreeable to
appear before the Trial Court on 30/10/2017. Request is
accepted.
11. Needless to state, on the date of appearance before the
Court, the petitioner shall enter an affidavit and shall mention
that he shall not be entitled for interest on the enhanced
compensation amount for the period of September 2011 to
September 2017 and shall not make such a claim before any
authority. Any such claim shall stand rejected.
12. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J. )
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akl/d
