Bombay High Court
Prakash S/O Late Vitthalrao ... vs Nareshchandra Maheshchandra ... on 12 January, 2018
Bench: Z.A. Haq
Judgment 1 wp3755.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3755 OF 2017
Prakash S/o. Late Vitthalrao Ikhankar,
Age 45 years, Occupation: Advocate,
R/o. 49-A, Hill Road, Gokulpeth,
Nagpur. .... PETITIONER.
// VERSUS //
1. Nareshchandra Maheshchandra
Agrawal, Age 61 years, Occ.: Business,
R/o. Ravi Nagar Chowk, Amravati
Road, Nagpur.
2. Saroj Nareshchandra Agrawal,
Age 56 years, Occ.: Housewife,
R/o. Ravi Nagar Chowk, Amravati
Road, Nagpur.
.... RESPONDENTS
.
___________________________________________________________________
Shri D.V.Chauhan, Advocate A/w. Shri S.P.Bodalkar, Adv.for Petitioner.
Shri P.K.Mishra, Advocate for Respondent Nos. 1 and 2.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : JANUARY 12, 2018.
CAW NO. 2054/2017
Considering the fact that the proceedings of civil suit are stayed
and as the learned advocates for the respective parties have shown
willingness to argue the matter, the prayer for grant of early hearing is
granted.
The civil application is allowed accordingly.
ORAL JUDGMENT :
1. Heard.
2. The petitioner/ original defendant has challenged the order
passed by the trial Court by which preliminary issue regarding valuation of
Judgment 2 wp3755.17.odt
the civil suit and payment of court fees by the respondents/ plaintiffs is
decided in favour of the plaintiffs holding that the Court of Civil Judge Junior
Division is having jurisdiction to try the civil suit. The learned trial Judge has
recorded that the issue of valuation of the claim in the civil suit is a mixed
question of law and fact and it can be decided after evidence of both sides is
recorded and the Court can direct the plaintiffs at the time of judgment also
to pay the deficit court fees, if any. It is clear that the learned trial Judge has
not delved into the issue whether the valuation of the claim is properly made
by the plaintiffs and whether proper court fees is paid by the plaintiffs. By
the impugned order, the learned trial Judge has only recorded that the Court
of Civil Judge Junior Division has jurisdiction to entertain and decide the
civil suit.
3. Considering the above facts, I find that this is a proper case to
exercise the jurisdiction under Section 24(1)(b)(ii) of the Code of Civil
Procedure which empowers this Court to withdraw any suit from any
subordinate Court and to transfer it for trial and disposal to any other
subordinate Court, competent to try and dispose the same.
4. Exercising the above powers, suo motu, following order is
passed to sub-serve the ends of justice :
i) The impugned order is set aside.
Judgment 3 wp3755.17.odt
ii) The proceedings of Regular Civil Suit No. 384 of 2017 pending
in the Court of 4th Joint Civil Judge Junior Division, Nagpur are
transferred to the Court of Civil Judge Senior Division, Nagpur.
iii) The learned Civil Judge Senior Division, Nagpur shall try and
dispose the civil suit either himself or make it over to the Court
of any Joint Civil Judge Senior Division.
iv) As the proceedings of the civil suit are withdrawn from the
Court of 4th Joint Civil Judge Junior Division and are
transferred to the Court of Civil Judge Senior Division
exercising powers under Section 24(1)(b)(ii) of the Code of
Civil Procedure, there is no need to have denovo trial and the
trial Court shall proceed from the same stage at which it is
today.
v) The respondents/plaintiffs and petitioners/ defendants shall
appear before the court of Civil Judge Senior Division, Nagpur
on 12th February, 2018 at 11.00 a.m. and abide by further
instructions / orders in the matter.
The writ petition is disposed in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
RRaut..
