1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1324 OF 2010 Smt. Ushatai w/o Eknath Nimbalkar & another .. PETITIONERS VERSUS Arvind s/o Eknath Nimbalkar & others .. RESPONDENTS Mr. P.M. Shah, Senior Counsel instructed by Mr. Y.V. Kakade, Advocate for the petitioners Mr. V.D. Salunke, Advocate holding for Mr. A.A. Nimbalkar, Advocate for respondent no.1. ===== CORAM : R. M. BORDE, J. DATE : 29th MARCH, 2010 PER COURT : 1 Petitioners herein / original defendants presented an application, after recording of evidence of one of the witnesses for the plaintiff, objecting to the valuation of the suit stated by the plaintiff in the plaint. Petitioners / original defendants contend in the application that as per the statement made by the plaintiff himself during the cross examination, the valuation of the suit property is far more than what is stated in the plaint and further, it is contended that the plaintiff has grossly under valued the suit and he shall be 2 directed to make proper valuation of the suit and pay the court fees accordingly. 2 Respondent no. 1 / original plaintiff presented suit bearing Special Civil Suit no. 115/2005 claiming his entitlement to the extent of 1/3rd share in the suit properties. The suit is valued by the plaintiff for an amount of Rs.55,40,000/- to the extent of his 1/3rd share and has paid court fees accordingly. Defendants have contended in the written statement that the plaintiff has under valued the suit and the suit shall not be proceeded unless the plaintiff pays proper court fees. On consideration of the pleadings of the parties, trial court framed issues at exh. 75. One of the issues framed by the trial court is in respect of valuation of the suit. Trial court proceeded to record evidence of the parties and it is stated that evidence of the plaintiff is in progress. While recording his cross examination, the plaintiff has stated that the market value of the properties at Bombay and Pune is much higher. Considering the statement made by the plaintiff during the cross examination, instant application at exh. 98 came to be presented by the defendant objecting to the suit valuation stated in the plaint. Trial court has after considering the rival contentions, opined that there is already issue framed in that regard and the objection raised by defendants can be taken 3 care of while rendering decision in the matter. It cannot be controverted that the court has jurisdiction to consider the issues in respect of valuation and, if, it is found that the plaintiff has paid deficit court fees, while passing the decree, the court is empowered to direct payment of deficit court fees. It is also to be taken note of that issue no. 4 framed by the trial court is in respect of valuation of the suit. The court has further observed that the objection raised can be taken care of while deciding the suit itself. 3 Mr. P.M. Shah, learned senior counsel appearing for the petitioners has invited my attention to Order 7 Rule 11 of the Code of Civil Procedure and it was contended that the trial court shall have to issue direction in respect of correcting valuation in accordance with the statement of the plaintiff and on failure of the plaintiff to pay the deficit court fees, the court is empowered to reject the plaint. In my opinion, the trial court has adopted proper approach in the matter. It is also to be taken note of that there is nothing improper or wrong in deferring the decision in respect of valuation of the property to the conclusion of the suit and, in the facts and circumstances of the case wherein the evidence of the plaintiff is in progress and considering the stage of the suit, I am of the opinion that the trial court has adopted proper approach in turning down the application tendered by 4 the petitioners / original defendants. No interference is called for in the instant petition in exercise of extra ordinary jurisdiction under Article 227 of the Constitution of India. Petition is devoid of substance hence stands rejected. 4 In view of dismissal of petition, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/wp1324.10.odt