: 1 : IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE SIDE SIDE WRIT WRIT WRIT PETITION NO. 858 OF 2007 PETITION NO. 858 OF 2007 PETITION NO. 858 OF 2007 M/S. M/S. M/S. ANGAL ANGAL ANGAL & COMPANY THROUGH ITS & COMPANY THROUGH ITS & COMPANY THROUGH ITS PARTNER PARTNER PARTNER SHRI DILIP S. ANGAL SHRI DILIP S. ANGAL SHRI DILIP S. ANGAL ...... PETITIONER. PETITIONER. PETITIONER. VS. VS. VS. DR.DEVYANI DR.DEVYANI DR.DEVYANI SUBHASH SUBHASH SUBHASH LATHI LATHI LATHI AND AND AND ORS. ORS. ORS. ...... RESPONDENTS. RESPONDENTS. RESPONDENTS. MR. MR. MR. SHAILENDRA SHAILENDRA SHAILENDRA S. KANETKAR FOR THE PETITIONER. S. KANETKAR FOR THE PETITIONER. S. KANETKAR FOR THE PETITIONER. ..... ..... ..... CORAM CORAM CORAM : : : A.P.DESHPANDE, J. A.P.DESHPANDE, J. A.P.DESHPANDE, J. DATE DATE DATE : February 6, 2007. : February 6, 2007. : February 6, 2007. ..... ..... ..... P.C. P.C. P.C. 1.1.1. An An An Order passed below Exhibit 214, allowing the Order passed below Exhibit 214, allowing the Order passed below Exhibit 214, allowing the application, application, application, is challenged by filing the instant is challenged by filing the instant is challenged by filing the instant petition. petition. petition. : 2 : 2.2.2. The The The Original Plaintiff instituted a suit for Original Plaintiff instituted a suit for Original Plaintiff instituted a suit for partition partition partition and separate possession of the joint family and separate possession of the joint family and separate possession of the joint family property. property. property. Besides the original plaintiff No.1, the Besides the original plaintiff No.1, the Besides the original plaintiff No.1, the original original original defendant Nos. 5 & 6 together claim 1/3rd defendant Nos. 5 & 6 together claim 1/3rd defendant Nos. 5 & 6 together claim 1/3rd share share share in the joint family property, besides the claim of in the joint family property, besides the claim of in the joint family property, besides the claim of defendant defendant defendant No.1, to the extent of remaining 1/3rd share. No.1, to the extent of remaining 1/3rd share. No.1, to the extent of remaining 1/3rd share. 3.3.3. The The The Present Petitioner is a Developer, Present Petitioner is a Developer, Present Petitioner is a Developer, developing developing developing the the the suit property under an authority given by suit property under an authority given by suit property under an authority given by defendant defendant defendant NO.1. In the plaint as filed, it was NO.1. In the plaint as filed, it was NO.1. In the plaint as filed, it was categorically categorically categorically stated that as the original defendant NO. stated that as the original defendant NO. stated that as the original defendant NO. 5 & 6 were then not available to sign and verify the & 6 were then not available to sign and verify the & 6 were then not available to sign and verify the plaint, plaint, plaint, they were impleaded as defendant NO. 5 & 6. they were impleaded as defendant NO. 5 & 6. they were impleaded as defendant NO. 5 & 6. When When When they became available, they moved an application they became available, they moved an application they became available, they moved an application for for for transposition as Plaintiffs. The transposition came transposition as Plaintiffs. The transposition came transposition as Plaintiffs. The transposition came toto to be allowed. Thereafter as the plaintiff had not be allowed. Thereafter as the plaintiff had not be allowed. Thereafter as the plaintiff had not changed changed changed the valuation of the suit property and had not the valuation of the suit property and had not the valuation of the suit property and had not paid paid paid the the the requisite court fee, the present petitioner has requisite court fee, the present petitioner has requisite court fee, the present petitioner has filed filed filed an application, seeking directions in regard to an application, seeking directions in regard to an application, seeking directions in regard to amendment amendment amendment of the valuation so also the consequential of the valuation so also the consequential of the valuation so also the consequential directions directions directions for payment of the Court fee stamp. Trial for payment of the Court fee stamp. Trial for payment of the Court fee stamp. Trial Court Court Court passed an Order to that effect on 20th January, passed an Order to that effect on 20th January, passed an Order to that effect on 20th January, 2007. 2007. 2007. It directed the consequential amendment of the It directed the consequential amendment of the It directed the consequential amendment of the plaint plaint plaint with a view to correct the valuation and for with a view to correct the valuation and for with a view to correct the valuation and for : 3 : payment payment payment of the requisite court fee. Thereafter, newly of the requisite court fee. Thereafter, newly of the requisite court fee. Thereafter, newly added added added plaintiff Nos. 2 & 3 filed an application for plaintiff Nos. 2 & 3 filed an application for plaintiff Nos. 2 & 3 filed an application for review review review of the Order, dated 20th January, 2007 and have of the Order, dated 20th January, 2007 and have of the Order, dated 20th January, 2007 and have undertaken undertaken undertaken to pay the court fee stamp after the to pay the court fee stamp after the to pay the court fee stamp after the preliminary preliminary preliminary decree is passed. The said application for decree is passed. The said application for decree is passed. The said application for Review Review Review is pending and the trial court has not passed any is pending and the trial court has not passed any is pending and the trial court has not passed any Orders Orders Orders thereon till date. thereon till date. thereon till date. 4.4.4. As As As the Original Plaintiff No.1 was to go abroad the Original Plaintiff No.1 was to go abroad the Original Plaintiff No.1 was to go abroad and and and as as as the recording of her evidence was very necessary, the recording of her evidence was very necessary, the recording of her evidence was very necessary, the the the Trial Trial Trial Court, having regard to the fact that the Suit Court, having regard to the fact that the Suit Court, having regard to the fact that the Suit property property property is very valuable property running into crores is very valuable property running into crores is very valuable property running into crores of of of rupees, has peremptorily fixed the matter for rupees, has peremptorily fixed the matter for rupees, has peremptorily fixed the matter for cross-examination cross-examination cross-examination of the Plaintiff No.1. I am informed of the Plaintiff No.1. I am informed of the Plaintiff No.1. I am informed by by by the learned Counsel for the Petitioner that the Suit the learned Counsel for the Petitioner that the Suit the learned Counsel for the Petitioner that the Suit isisis listed today before the Trial Court for listed today before the Trial Court for listed today before the Trial Court for cross-examination cross-examination cross-examination of of of the Plaintiff No.1. At this stage, the Plaintiff No.1. At this stage, the Plaintiff No.1. At this stage, the the the learned Counsel for the Petitioner submits that learned Counsel for the Petitioner submits that learned Counsel for the Petitioner submits that unless unless unless and until the plaint is amended correcting the and until the plaint is amended correcting the and until the plaint is amended correcting the valuation valuation valuation and court fee is paid thereon, the further and court fee is paid thereon, the further and court fee is paid thereon, the further proceeding proceeding proceeding need to be stayed. I do not agree with the need to be stayed. I do not agree with the need to be stayed. I do not agree with the said said said submissions. The Court can recover the amount of submissions. The Court can recover the amount of submissions. The Court can recover the amount of court court court fees, fees, fees, which the Plaintiff Nos. 2 & 3 undertook to which the Plaintiff Nos. 2 & 3 undertook to which the Plaintiff Nos. 2 & 3 undertook to pay pay pay at a latter point of time, after it passes at a latter point of time, after it passes at a latter point of time, after it passes : 4 : appropriate appropriate appropriate order on review application. The endeavour order on review application. The endeavour order on review application. The endeavour on on on the part of the Trial Court to proceed with the the part of the Trial Court to proceed with the the part of the Trial Court to proceed with the cross-examination cross-examination cross-examination of the Plaintiff is with a view to of the Plaintiff is with a view to of the Plaintiff is with a view to achieve achieve achieve a just and complete adjudication of the issues a just and complete adjudication of the issues a just and complete adjudication of the issues involved involved involved in in in the matter. The Trial Court’s attempt is in the matter. The Trial Court’s attempt is in the matter. The Trial Court’s attempt is in furtherance furtherance furtherance of cause of justice and hence, at this of cause of justice and hence, at this of cause of justice and hence, at this stage, stage, stage, no interference is called for in exercise of the no interference is called for in exercise of the no interference is called for in exercise of the writ writ writ jurisdiction. jurisdiction. jurisdiction. 5.5.5. ItItIt is made clear that the issue in regard to is made clear that the issue in regard to is made clear that the issue in regard to amendment amendment amendment of the plaint touching the valuation of the of the plaint touching the valuation of the of the plaint touching the valuation of the suit suit suit property and payment of court fees, is kept open property and payment of court fees, is kept open property and payment of court fees, is kept open and and and the same would be dealt with by the Trial Court, the same would be dealt with by the Trial Court, the same would be dealt with by the Trial Court, while while while deciding the review application. deciding the review application. deciding the review application. In In In the result, the Writ Petition fails and is the result, the Writ Petition fails and is the result, the Writ Petition fails and is summarily summarily summarily dismissed. dismissed. dismissed. ..... ..... ..... [A.P.DESHPANDE, [A.P.DESHPANDE, [A.P.DESHPANDE, J.] J.] J.]