wp2557.11.odt 1/4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.2557/2011 Ashok Kumar S/o Shaligram Chudiwale -vs- Prakash Kisanlal Soni and others ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri A. Parchure, learned counsel for the petitioner. CORAM : R. M. SAVANT, J. DATED : 21/07/2011. The above petition takes exception to the order dated 24/12/2010 passed by the learned Civil Judge, Senior Division, Amravati, by which order the application filed by the petitioner invoking Order 6 Rule 17 of the Civil Procedure Code for amendment of the plaint came to be rejected. The petitioner is the original plaintiff, who had originally filed a suit being Regular Civil Suit No.129/2002 for declaration and permanent injunction and for conformation of possession, declaration was sought in respect of a sale deed and a gift deed. The defendants in the said suit filed an application for rejection of the plaint for want of proper valuation and payment of requisite court fees. The defendants also filed an application for framing of preliminary issue under Section 9A of the Civil Procedure Code challenging the pecuniary and territorial jurisdiction of the Civil Judge, Junior Division to try the said suit. It was the case of the defendants that the subject wp2557.11.odt 2/4 matter of the said suit was undervalued and should have been shown to the extent of Rs.1,65,00,000/-. The learned Joint Civil Judge, Junior Division by the order dated 26/04/2002 allowed the application filed by the defendants to the extent of returning the plaint to the plaintiff for being presented to the Court having jurisdiction. The learned Joint Civil Judge, Junior Division also held that the suit is not properly valued and it ought to have been valued in the sum of Rs.1,65,00,000/-. The said order dated 26/04/2002 came to be challenged by the petitioner-plaintiff in this Court by filing Writ Petition No.5366/2005. The said petition came to be dismissed by this Court by order dated 21/02/2007 and, therefore, the order dated 26/04/2002 came to be confirmed. Much after this Court had dismissed the petition filed by him on 21/02/2007, the petitioner on 24/02/2010 filed the instant application before the learned Civil Judge, Senior Division, Nagpur invoking Order 6 Rule 17 of the Civil Procedure Code for amendment of the plaint, prior to its registration. By the said amendment the plaintiff sought deletion of the relief in respect of declaration about the sale deed on the ground that there is compromise between the parties about the legality of the sale deed dated 01/03/2002 and thereby wanted the restoration of the valuation back to what it was before the learned Civil Judge, Junior Division i.e. the Court fees payable to the extent of Rs.1,760/- the plaintiff also sought the registration of the suit without making payment of the Court fees on the basis of the order passed by the learned wp2557.11.odt 3/4 Civil Judge, Junior Division dated 26/04/2002. The said application of the plaintiff was opposed by the defendants on the ground that the order passed by the learned Civil Judge, Junior Division dated 26/04/2002 has been confirmed by the High Court and, therefore, the application as filed was not maintainable. The trial Court considered the said application and has rejected the same by the impugned order dated 24th December, 2010. The gist of the reasoning of the trial Court is that the provisions of Order 6 Rule 17 of the Civil Procedure Code cannot be invoked in respect of a suit which is not registered as admittedly the suit has been returned to the plaintiff for presentation to the proper Court. The trial Court was of the view that the plaintiff can present the suit by making the necessary amendment to the extent that it was necessary in consonance with the order of the return of plaint by adverting to the judgments of the Apex Court as well as this Court, the trial Court held that after the return of the plaint, if the same is presented before the Court having jurisdiction, it is to be treated as fresh suit for all purposes. The learned counsel for the petitioner sought to rely upon the judgment of the Apex Court in the case of Hanamanthappa and another v. Chandrashekharappa and others reported in AIR 1997 Supreme Court 1307, which has been considered by the trial Court in the impugned order, to the effect that once the plaint is returned for being presented before the appropriate Court, it is to be treated as fresh suit for all wp2557.11.odt 4/4 purposes. The plaintiff was therefore obliged to comply with the order of the return of the plaint. In the context of the facts, as narrated above, in my view, the order of the trial Court rejecting the plaintiff’s application under Order 6 Rule 17 of the Civil Procedure Code on the grounds mentioned in the impugned order cannot be faulted with. In that view of the matter, no case for interdiction is made out. The above Writ Petition is accordingly dismissed. JUDGE KHUNTE