SAVITRABAI Vs. KOKILABAI

JUDGEMENT

(1.) Heard learned counsel for the Petitioner in both the writ petitions. It is made clear that other parties are not before this Court since I am hearing this matter at the stage of admission. Advocate for the Petitioners and Advocate Mr. A. S. Bajaj, who appears for Respondent Nos. 19 and 31 in both the petitions [defendant Nos. 18 and 30 in the trial Court]. Both the learned counsel took me to the copy of the plaint which is on record in both the writ petitions. It is Special Civil Suit No.92 of 2008 filed in the Court of learned Civil Judge, Senior Division, at Aurangabad. Name of the plaintiff appears to be Smt. Savitrabai Wd/o. Sureshchandra Khatod. Mr. Bajaj for the respective respondents took me to para No. 1 of the plaint. A statement is made that the plaintiff married with Sureshchandra on 5th May, 1969. The couple is blessed with a son and two daughters. Husband of the plaintiff died on 17th November, 1993. It is also pleaded that two daughters of the plaintiff Renuka and Rajeshri who are defendant Nos.4 and 5 in the suit, are married long time back. Son of the plaintiff namely Nikhil is residing with plaintiff and his date of birth is 18th June, 1990. Mr. Bajaj, with this, took me to para No. 15. He points out the share claimed by the plaintiff, after demise of her husband Sureshchandra as l'6th. With this, he took me to prayer clause 23. A. and prayer clause 23 C. 2. This prayer seeks rendition of account of firm M/s. Chunnilal Asaram and Company (Petrol Department). For pointing out these two prayers, submission is that the share claimed by the plaintiff is incorrect, illegal. It is not the simplicitor suit for partition of joint family property i.e. immoveable property either agricultural land or other type of property. Another object is that plaintiff is not claiming relief considering her own status and the status of the defendants in the suit.

(2.) Counsel for the Petitioner points out page 50 Exhibit-B/application for exemption filed in the Special Civil Suit on 6th March, 2008. On this application, there appears to be an order passed by the learned Judge as "Allowed". Date seems to be 6th of March, 2008. Counsel for the Petitioner raised a grievance that on the date of filing of the suit and application Exhibit-B plaintiff was permitted to get the suit registered by obtaining exemption from the payment of court fees and that is how the suit was registered in the trial Court as Special Civil Suit No.92 of 2008. He also points out that there is no written statement filed on behalf of the defendants, despite the fact, according to him, all are served, in the trial Court. Application Exhibit-36, Annexure-C to the petition, came to be filed in the trial Court on 12th June, 2009. From the copy, it appears that the said application is filed by defendant Nos. 18 and 30 under Order 7, Rule 11 of the Code of Civil Procedure [the Code, for short]. Prayer made is "direct the plaintiff to pay full ad valorem Court fees of Rs.3,00,000/- and on failure of the plaintiff to comply the same, reject the suit. According to learned counsel for the Petitioner, reply was filed by the plaintiff on 23rd June, 2009. In this reply, plaintiff has raised a ground that the plaintiff is already exempted from payment of court fees by the earlier order. It is a matrimonial dispute arising out of the matrimonial relations covered by the notification issued by the State Government. Application filed at Exhibit-36 is not maintainable in view of the fact that the defendants have not challenged order dated 6th March, 2008 below Exhibit-8. Counsel for the Petitioner also points out another application filed by the defendant Nos.18 and 30 Annexure-5 A to this petition. This application is filed on 30th June, 2009.

(3.) Mr. Bajaj, learned counsel for the Respondent Nos.19 and 31, per contra to the submissions of the learned counsel for the petitioner, points out prayer made in Application Exhibit-37, Annexure-E. It is two fold prayer. Exhibit-37 and order passed below Exhibit-8 may kindly be re-considered and plaintiff be directed to pay the full ad-valorem court fres of Rs.3 Lacs. This application is also titled under Order 7, Rule 11 of the Code.