Kaushalyabai Baban Karle vs Sahebrao Baburao Kotkar And ...
2021 Latest Caselaw 4787 Bom

                                 1                  WP 4540.2021.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                   910 WRIT PETITION NO.4540 OF 2021

               KAUSHALYABAI BABAN KARLE
                             VERSUS
         SAHEBRAO BABURAO KOTKAR AND OTHERS
                                ...
          Advocate for Petitioner : Mr. Shermale K. N.
                                ...
                  CORAM : V.K. JADHAV, J.

Dated: March 16, 2021 ...

PER COURT :-

1. Heard.

2. The petitioner is the original defendant no.10. The

petitioner has fled an application Exh.90 in pending

RCS No.437 of 2014 for permission to deposit the

remaining Court fees stamp of Rs.32,230/- in respect of

his counter-claim, which is fled alongwith the written

statement on 18.9.2015. By impugned order the trial

court has rejected the said application mainly on the

ground that there is an inordinate delay on the part of

the petitioner/original defendant no.10 to deposit the

court fees stamp on the counter claim. The learned

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judge has also observed that no issue pertaining to the

counter-claim was framed owing to the said reason.

3. Learned counsel for the petitioner submits that

the ratio laid down in the Ashok Kumar Karla Vs. Wing

Commander Surendra Agnihotri's case referred by the

trial court in the impugned order is altogether on

different points. The petitioner has submitted the

counter-claim alongwith his written statement and there

was no delay in fling the counter-claim. Learned

counsel submits that though the petitioner has not

specifcally mentioned as to under which provisions of

the Civil Procedure Code the application at Exhibit 90 is

fled, however, the said application seems to have been

fled under section 149 of the Civil Procedure Code.

Learned counsel has placed his reliance on a judgment

case in case of Mohammad Mahibulla and another Vs.

Seth Chaman Lal (Dead) by L.Rs. and others reported in

(1992) AIR (SCW) 3275, wherein the Supreme Court has

held that an opportunity should have been given by the

Court to the appellant to make good the balance court-

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3 WP 4540.2021.odt

fee within a time to be indicated and if there is failure to

comply with the direction of the Court the

memorandum of appeal could have been dismissed.

Learned counsel submits that in the instant case,

the petitioner himself has approached to the court by

fling an application exh.90 for depositing the defcit

court fees.

4. In view of the above, issue notice to the

respondents returnable on 23.3.2021. Humdast allowed.

( V.K. JADHAV, J. ) ...

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