1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6380 OF 2009 Shri Rajendra Mafatlal Shaha. .. Petitioner Vs. Smt. Chhababai Ramchandra Sonawane & Ors. .. Respondents -- Shri M.S. Karnik for the Petitioner. Smt. Leena Patil for Respondent Nos.1 to 8. Shri Harshad Palwe for Respondent Nos.9 and 10. -- CORAM : A.S.OKA, J. DATE : 8TH FEBRUARY, 2010 P.C: Heard learned counsel appearing for the Petitioner and the learned counsel appearing for the Respondents. This Petition is taken up for final disposal at the admission stage. 2. The Petitioner is the original Plaintiff and the Respondents are the Original Defendants. The Petitioner has filed a suit for specific performance of an Agreement for sale of the immovable property which is subject matter of the suit. The second prayer in the suit is for a declaration that the Sale Deed executed in favour of 9th and 10th Respondents was not binding on the Petitioner. 2 3. An application for amendment of the Plaint was made by the Petitioner at Exhibit-66. The first prayer in the application is for adding a prayer that the Sale Deed dated 30th December, 2002 executed by the 1st to 8th Respondents in favour of 9th to 10 Respondents is illegal and that the same is not binding on the Petitioner. The second prayer is for correcting the valuation clause. The correction is sought as, according to the Petitioner, ad valorem Court fee is required to be paid on the sum of Rs. 17,00,000/- being the consideration mentioned in the Sale Deed dated 30th December, 2002. By the impugned order, the said application has been rejected. 4. Learned counsel appearing for the Petitioner submitted that as far as the Sale Deed executed in favour of 9th and 10 Respondents is concerned, there is already a prayer made in the Plaint. The amendment was prayed for prayed for incorporating in the prayer the material particulars such as the date of the Sale Deed. He submitted that the Petitioner wants to pay deficit Court fees which is payable on the Plaint and therefore, amendment of valuation clause of the Plaint was sought. 5. The learned counsel appearing for the 9th and 10th Respondents submitted that the trial Court has rightly observed that the application for amendment of the Plaint was not signed and verified by the Petitioner and that no affidavit in support thereof was filed. He submitted that an objection has been raised by the 9th and 10 Respondents 3 to the valuation of the suit. He submitted that if the proposed amendment is allowed, the said defence which is available to the said Respondents will be taken away. 6. I have carefully considered the submissions. The prayer (b) of the Plaint as it stands is for a declaration that the Sale Deed dated 30th December, 2002 executed by the 1st to 8th Respondents in favour of the 9th and 10th Respondents is not binding on the Petitioner. Virtually the same prayer is sought to be incorporated in the Plaint by the proposed amendment. The said amendment cannot be allowed as the prayer which is sought to be incorporated by the amendment is already there in the form of prayer clause (b). 7. The Petitioner wants to correct the valuation of the suit for the purposes of Court fees probably on the basis of Clause (ha) of Section 6(iv) of the Bombay Court Fees Act, 1959. The original suit has been valued by the Petitioner for Court fees at Rs.11,95,586/-. By the proposed amendment, the Petitioner wants to value the suit for the purposes of Court Fees at Rs.17,00,000/- and wants to pay deficit Court Fee of Rs. 6,000/- 8. At any stage of the proceedings, the trial Court could have conducted an inquiry under Section 8 of the Bombay Court Fees Act, 1959 and could have called upon the Petitioner to pay deficit Court Fees. In 4 such a case, limitation will not come in the way of the Petitioner for making payment of deficit Court fees. Even before the Trial Court could pass an order, the Petitioner himself wants to correct the valuation. Even if the valuation is allowed to be corrected, nothing prevents the Respondents from contending that even the said valuation is not correct. 9. As the application for amendment is not signed and verified, in normal course, an order of remand would have been passed by this Court permitting the Petitioner to sign and verify the application and to file an affidavit in support thereof. However, in this case, the only amendment which needs to be permitted is the amendment to the valuation clause of the Plaint by which the Petitioner wants to enhance the claim for Court fees. For the payment of deficit Court fees, even an application for amendment of Plaint is not required. Hence, no purpose will be served by remanding the matter back to the trial Court. 10. Hence, I pass following order. (a) The impugned order dated 17th April, 2009 is quashed and set aside. (b) The application made by the Petitioner at Exhibit-66 is partly allowed and the Petitioner is permitted to add Paragraph 16(B)-1 to the Plaint and to pay deficit 5 Court fees. (c) Amendment to be carried out within a period of two weeks from the date on which the writ of this order is received by the trial Court (d) Even after the amendment is made, it will be open for the Respondents to contend that the suit has not been valued properly for the purposes of Court fees. (e) The Writ Petition is partly allowed in above terms with no order as to costs. (A.S.OKA, J) ash/