Bombay High Court
Kaushalyabai Baban Karle vs Sahebrao Baburao Kotkar And ... on 17 November, 2021
Bench: Mangesh S. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4540 OF 2021
Kaushalyabai W/o Baban Karle
Age- 70 years, Occu-Agril,
R/o Chas, Tq. & Dist.
Dist.Ahmednagar ..PETITIONER
[Orig.Deft.No.10]
VERSUS
1] Sahebrao S/o Baburao Kotkar
through his legal Guardian
Somnath s/o Sahebrao Kotkar
Age 26 years, Occu-Agril,
R/o Nagar Pune Road,Kotkar Mala
Kedgaon, Tq.& Dist.Ahmednagar
2] Ranjana W/o Arjun Kotkar
Age-51 years, Occu-Household,
3] Abhijeet S/o Arjun Kotkar
Age 29 years, Occu-Agril & Business
4] Sagar S/o Arjun Kotkar
Age 27 years, Occu-Agril & Business
5] Mangesh S/o Pandurang Kotkar
Age 31 years, Occu-Agril
6] Vijaya W/o Machindra Kotkar
Age 53 years, Occu-Agril & Household
7] Amol S/o Machindra Kotkar
Age 34 years, Occu-Agril,
Respondent No.1 & 7
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R/o Kotkar Mala, Kedgaon,
Tq.& Dist.Ahmednagar.
8] Babi W/o Asharam Japkar
Age 63 years, Occu-Agril
R/o Nepati Road, Kedgaon,
Tq.& Dist.Ahmednagar.
9] Tarabai W/o Ratan Gohad,
Age 61 years, Occu-Agril,
R/o Hiwarebazar,
Tq.& Dist.Ahmednagar. .. RESPONDENTS
[Orig.Plaintiff & Defendant]
....
Mr. K.N.Shermale,Advocate for the petitioner.
Mr.P.P.Dawalkar, Advocate for Respondent No.1
....
WITH
WRIT PETITION NO. 5703 OF 2021
Kaushalyabai W/o Baban Karle
Age- 70 years, Occu-Agril,
R/o Chas, Tq. & Dist.
Dist.Ahmednagar ..PETITIONER
[Orig.Deft.No.10]
VERSUS
1] Sahebrao S/o Baburao Kotkar
through his legal Guardian
Somnath s/o Sahebrao Kotkar
Age 26 years, Occu-Agril,
R/o Nagar Pune Road,Kotkar Mala
Kedgaon, Tq.& Dist.Ahmednagar
2] Ranjana W/o Arjun Kotkar
Age-51 years, Occu-Household,
3] Abhijeet S/o Arjun Kotkar
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Age 29 years, Occu-Agril & Business
4] Sagar S/o Arjun Kotkar
Age 27 years, Occu-Agril & Business
5] Mangesh S/o Pandurang Kotkar
Age 31 years, Occu-Agril
6] Vijaya W/o Machindra Kotkar
Age 53 years, Occu-Agril & Household
7] Amol S/o Machindra Kotkar
Age 34 years, Occu-Agril,
Respondent No.1 & 7
R/o Kotkar Mala, Kedgaon,
Tq.& Dist.Ahmednagar.
8] Babi W/o Asharam Japkar
Age 63 years, Occu-Agril
R/o Nepati Road, Kedgaon,
Tq.& Dist.Ahmednagar.
9] Tarabai W/o Ratan Gohad,
Age 61 years, Occu-Agril,
R/o Hiwarebazar,
Tq.& Dist.Ahmednagar. .. RESPONDENTS
[Orig.Plaintiff & Defendant]
....
Mr. K.N.Shermale,Advocate for the petitioner.
Mr.P.P.Dawalkar, Advocate for Respondent No.1
....
CORAM : MANGESH S. PATIL, J.
DATE : 17/11/2021
ORAL JUDGMENT :-
Heard. Rule. The Rule is made returnable forthwith. The learned
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advocate for the respondent no.1 who is the only original plaintiff waives
service. At the joint request the matter is heard finally at the stage of
admission.
2] The respondent no.1 has filed a suit for general partition with a
declaration that the sale deed executed by the respondent nos.8 and 9 dated
30/5/2012 be declared as not binding on his share.
3] The petitioner who was not originally added as a defendant albeit the
respondent no.1 admitted her to be one of the legal heirs of the common
ancestor Baburao, was subsequently arrayed as defendant no.10. She filed a
Writ Statement cum counter claim apparently without paying sufficient court
fees. By moving application (Exh.90) she sought liberty to pay the deficit
court fees. Simultaneously by moving another application (Exh.91) she
requested for framing couple of issues arising out of pleading in the counter
claim. By order dated 1/3/2021 the trial Court rejected both the applications.
Hence these 2 separate Writ Petitions.
4] It is a matter of record that even in the plaint the respondent no.1 has
specifically admitted petitioner's relation with him. Being a suit for partition
prima facie she would be a sharer. Though she was not initially added as a
defendant, the error was rectified lateron.
5] There cannot be a dispute that there is a time limit provided for filing a
counter claim. However once it was allowed to be filed on 27/2/2017, merely
because there was a deficit court fees that apparently the trial court had in a
way refused to entertain and decide the counter claim and has refused to
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frame the issues. Needless to state that payment of court fees is a matter
which is not to be viewed in such a strict sense as would deprive a party of
agitating his/her rights. The fact remains that the petitioner was allowed to
file the written statement cum counter claim which was taken on record but
was simply ignored during the later stage of the hearing. If at all there was a
deficit court fees, a direction could have been given for rectifying it and on her
failure to pay it, the counter claim could have been rejected under Order VII
Rule.11 of the Code of Civil Procedure. Instead of following such a course,
the trial Court seems to have simply ignored to even entertain the counter
claim. This is not the correct approach. The procedure is considered to be a
hand maid of justice and when the petitioner though belatedly was ready to
pay the court fees there was no reason and justification for the trial Court to
refuse her leave to pay the deficit court fees.
6] Obviously, if there was a dispute regarding limitation, even the issue in
respect of limitation in filing the counter claim could have been framed and
decided. Even the approach of the trial Court in refusing to frame the issue
arising from the counter claim in spite of the fact that it was allowed to be
placed on record and exhibited, is improper and illegal.
7] Considering all the aforementioned facts and circumstances, both the
orders being arbitrary, capricious and not sustainable in law are liable to be
quashed and set aside.
8] Both the Writ Petitions are allowed. The impugned orders are quashed
and set aside. The trial Court shall now permit the petitioner to pay the
deficit court fees and frame appropriate issues including the one of limitation
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and decide the suit and the counter claim on their own merits. The Rule is
made absolute in above terms.
[MANGESH S. PATIL, J.]
umg/
