1 WP No.4113/11 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4113 of 2011 Appaso Siddappa Dodmani and anr ... Petitioners versus Satish Omprakash Gupta ... Respondent ... Mr.Ashok B. Tajane for the petitioners CORAM : D.G. KARNIK, J DATED : 1st July 2011 P.C. 1. This petition is directed against the order dated 10 November 2010 passed by the trial court rejecting the application of the petitioners (original defendants) for rejection of the plaint. 2. Respondent plaintiff initially filed a suit for specific performance of an agreement of sale. In the plaint, he claimed, in the alternative damages at the rate of Rs.5,000/- per day from the date of the agreement i.e from 16 January 2004. He however, did not compute the claim of damages from the date of the agreement i.e. from 16 January 2004 to the date of filing of the suit and did not pay court fee stamp on the relief of damages. The petitioners made an application to the court for an order directing the respondent to compute and crystalise the claim for pre-suit damages and pay necessary court fee stamp thereon failing which the plaint be rejected under Order 7 Rule 11 of the Code of Civil Procedure. 2 WP No.4113/11 (for short “the Code”). The application was allowed and the respondent was directed to calculate and quantify the claim upto the date of the filing of the suit and pay the necessary court fee stamp thereon. Respondent thereafter gave an application for amendment of the plaint to delete the claim for damages upto the date of the filing of the suit. The application was allowed. The respondent carried out the amendment and consequently did not pay the court fee stamp as he had given up the claim for damages upto the date of the suit. Petitioners then made an application that original order passed by the court below Exhibit 17 on their application directing the respondent to pay the court fee stamp was not complied with therefore, the plaint be rejected under Order 7 Rule 11 of the Code. The Court dismissed the application. Against the order of dismissal, petitioners have approached this court. 4. Order 2 Rule 2 permits a plaintiff to relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. Respondents were entitled to relinquish their claim for damages upto the date of filing of the suit and they had accordingly relinquished their claim upto the date of the filing of the suit. On account of such relinquishment and amendment in the plaint, no additional court fee was required to be paid. It therefore cannot be said that the plaint ought to have been rejected under Order 7 Rule 11 for non payment of the additional court fee stamp. Petition is accordingly rejected summarily. (D.G.KARNIK, J)