1 wp 5132.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5132 OF 2011 Shaikh Abdulla Bahauddin through GPA Jainabee Shaikh Abdulla .. Petitioner Versus Shaikh Ismail Shaikh Habib and others .. Respondents Shri S. V. Chandole, Advocate h/f Shri V. G. Sakolkar, Advocate for the Petitioner. CORAM : S. V. GANGAPURWALA, J. DATE : 14TH JULY, 2011. PER COURT : . The present petitioner is the original defendant. The respondents had filed a suit for partition and separate possession. The said suit came to be decreed. The present petitioner filed an appeal in the year 1993. Thereafter in the appeal filed an application Exhibit 74 for framing of additional issues i. e. regarding the payment of Court fees and the valuation and that whether the suit deserves to be dismissed on the ground of non-joinder of Joharabee as a party. The Appellate Court 2 wp 5132.11 rejected the said application. Aggrieved thereby the present petition is filed. 2. Shri Chandole, the learned counsel along with Shri Sakolkar, the learned counsel for the petitioner submits that Joharabee being the sister of the father of plaintiffs and defendant is a necessary party. In her absence the suit deserves to be dismissed. The said issue was necessary, so also the issue of valuation and court fees is required to be framed which would determine the pecuniary jurisdiction. The Court below has failed to exercise its jurisdiction in rejecting the said application. Mere rejection of an application filed by Joharabee to implead as a party would not be sufficient to reject the application of the petitioner for framing of the issue about non-joinder of necessary party. 3. The objection regarding valuation of jurisdiction has to be raised at the first instance. Even as per Section 21 of the Code of Civil Procedure if the objection to the pecuniary jurisdiction is not taken at the first instance, then the objection regarding the pecuniary jurisdiction or territorial jurisdiction cannot be allowed to be taken in the appeal. In the light of that the said 3 wp 5132.11 objection of the petitioner cannot be considered. 4. Regarding the issue of non-joinder of necessary party, the Court has rejected the application Exhibit 102 filed by Joharabee holding that she is not necessary party. The said order does not seem to have been challenged by the petitioner. Moreover, the said objection was also not taken in the Trial Court. The appeal is pending since the year 1993. The said objection it seems has been taken for the first time in the year 2011. Even as per Section 99, the same may not be permissible. For the above reasons, I do not see any merit in the writ petition. The writ petition is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/July 11