2011 Supreme(Bom) 1128

2011 (6) ALLMR 498
IN THE HIGH COURT OF BOMBAY AT AURANGABAD
S.S. SHINDE
Vijay s/o Mohan Jagtap
Versus
Sau.Sindhubai Mohanrao Jagtap & Others
WRIT PETITION NO.8072 OF 2010
Decided on : 22-09-2011

Headnote:Bombay Court-Fees Act, 1959 - Section 46-Exemption from court- fee-Granted to woman litigant-Partition of ancestral properties claimed by wife while husband alive-Dispute not "matrimonial"-Grant of exception unjustified- Also as no reasons assigned for grating impugned exemption.-Not a single reason has been assigned by the Court below as to why application filed by the petitioner has been rejected and as to why respondent No. 1 should be exempted from payment of court-fee. Respondent No. 1 has not referred to any particular provision, notification or relied upon any judgment under which she is entitled for exemption from payment of court-fee. If the learned Judge was convinced to pass order granting exemption to respondent No. 1 from payment of court-fees, certainly reasons should have been assigned in the said order. However, from careful reading of the said order, it reveals that the said order is totally silent and no reasons are assigned while exempting respondent No. 1 from payment of court-fee.

       In the instant case, respondent No. 1 herein has filed application for amendment of the plaint seeking therein adding of the properties of her father-in-law and claiming relief of partition and possession in the suit, which was originally filed for altogether different reliefs. Secondly, admittedly, husband is not party to the suit or application which was filed for amendment. Thirdly, the properties are situate at Pune. Therefore, in Court’s considered opinion, if the order dated 20.8.2009, passed below application Exhibit 28 is quashed and set aside, the order dated 17.7.2010, below application Exhibit 44 has to go since the application for amendment should not have been allowed by the trial Court. The facts of the case cited by the counsel for the petitioner in the case of Prabhakar (supra) are similar to the facts in the present case. This Court, in the cited judgment, has taken a view that if the suit is filed for declaration and partition along with separate possession in respect of ancestral properties, in that case, the dispute is outside the realm of expression "matrimonial dispute".

       Civil Procedure Code, 1908 - Order VI, Rule 17-Amendment at plaint-Application for-Suit for cancellation of compromise deed entered into by plaintiff with her real sisters-Plaintiff sought partition of properties belonging to her father-in-law by way of amendment -Praying for adding properties of her father-in-law in said suit-Husband of plaintiff not added as party defendant in said suit-Plaintiff prayed for a totally different relief by way of amendment-Amendment not permissible-Plaintiff can file a separate suit therefor.-The order below Exhibit 28 is passed by the trial Court on the application filed by respondent No. 1 for amendment of the plaint. In considered view of the Court such application, thereby praying for adding properties of father-in-law, in the suit which was originally filed challenging the compromise deed in Regular Civil Suit No. 324/1998 should not have been allowed by the trial Court. By way of application for amendment, respondent No. 1 herein has prayed a totally different relief in respect of the properties of her father-in-law. The relief, which was claimed by way of amendment, was for partition and possession of the properties belonging to the father-in-law. Admittedly, husband of plaintiff is not added as party defendant in the said suit. The trial Court has not recorded any finding in respect of the objection raised by petitioner herein that husband of respondent No. 1 is alive and when husband of plaintiff is alive, how such suit is maintainable, which is filed by the wife for partition of the properties, which are owned by her father-in-law. Second thing is that, admittedly, on the date when such application for amendment was filed by the plaintiff i.e. for adding the properties of her father-in-law, Regular Civil Suit No. 739/2008 was pending before the competent Court at Pune. It is not in dispute that the properties, which respondent No. 1 wanted to add by way of amendment in the plaint, are situate at Pune. Therefore, in Court’s considered view, the 4th Joint Civil Judge, Senior Division, Pune, has wrongly allowed such application. It was open for the plaintiff-respondent No. 1 herein to file a separate suit for partition and possession of the properties owned by her father-in-law before the competent Court. The Judge has not addressed the issued raised by the petitioner herein that husband of respondent No. 1 is alive and without making him party, suit is filed by the wife. In fact, the Judge should have addressed this issued first and then should have proceeded to pass final orders. Therefore, in Court’s view, the 4th Joint Civil Judge, Senior Division, Ahemednagar, should not have allowed the application filed by respondent No. 1 for amendment of the plaint i.e. for adding the properties owned by her father-in-law and to pray for partition of such properties.