Rajasthan High Court - Jaipur
Jagidh Sahu And Ors vs Sonu And Ors on 31 January, 2017
S.B. Civil Writ Petition No. 8973/2014
Jagdish & Ors. Vs. Sonu & Ors.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
ORDER
S.B. Civil Writ Petition No. 8973 of 2014
1. Jagdish Sahu S/o Shri Sampatram Sahu, by caste Teli,
R/o Village Malakhera, Tehsil Malakhera, District Alwar
(Raj.)
2. Dhanni Devi W/o Late Tundaram, by caste Teli, R/o
Malakhera, Tehsil Malakhera, District Alwar (Raj.),
presently residing at Mohalla Akheypura, Alwar (Raj.).
3. Kamal S/o Late Tundaram, by caste Teli, R/o Malakhera,
Tehsil Malakhera, District Alwar (Raj.), presently residing
at Mohalla Akheypura, Alwar (Raj.).
4. Mahesh @ Kalu S/o Late Tundaram, by caste Teli, R/o
Malakhera, Tehsil Malakhera, District Alwar (Raj.),
presently residing at Mohalla Akheypura, Alwar (Raj.),
minor through gurdian mother Smt. Dhanni Devi W/o
Late Tundaram by caste Teli, R/o Malakhera, Tehsil
Malakhera, District Alwar (Raj.), presently residing at
Mohalla Akheypura, Alwar (Raj.)
5. Arti D/o Late Tundaram, by caste Teli, R/o Malakhera,
Tehsil Malakhera, District Alwar (Raj.), presently residing
at Mohalla Akheypura, Alwar (Raj.), minor through
guardian mother Smt. Dhanni Devi W/o Late Tundaram
by caste Teli, R/o Malakhera, Tehsil Malakhera, District
Alwar (Raj.), presently residing at Mohalla Akheypura,
Alwar (Raj.).
... Plaintiff/Petitioners
VERSUS
1. Sonu S/o Sampatram, by caste Teli R/o Village
Malakhera, Tehsil Malakhera, District Alwar (Raj.)
2. Prahlad S/o Sampatram, by caste Teli, R/o Village
Malakhera, Tehsil Malakhera, District Alwar (Raj.)
3. Ajay Kumar Gupta S/o Pooran Chand Gupta, by caste
Mahajan, R/o Village Malakhera, Tehsil Malakhera,
District Alwar (Raj.)
...Defendant/Respondents
S.B. Civil Writ Petition No. 8973/2014
Jagdish & Ors. Vs. Sonu & Ors.
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Reportable Date of Order: 31/01/2017
Mr. Bipin Gupta, counsel for the petitioners.
Mr. Mahendra Goyal, counsel for the respondents Nos. 1 & 3. HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI This writ petition under Article 226 & 227 of the Constitution of India is directed against the order dated 12-08- 2014 passed by Additional District & Sessions Judge No. 1, Alwar, whereby the applications filed by the defendant No. 1 & 3 under Order 7 Rule 11 of CPC read with Section 11 of The Rajasthan Court-Fees and Suits Valuation Act, 1961. (hereinafter referred to as "the Act") have been allowed and the plaintiff/petitioners were directed to pay court-fees on market value of the property under Section 24 (a) and 35 (1) of the Act, the value as mentioned in the plaint.
The material facts necessary for disposal of this petition are that the plaintiff/petitioners filed a suit for partition of suit property by metes and bounds and separate possession, for declaration of sale deed executed by defendant No. 1 in favour of defendant No. 3 on 02-09-2013 regarding part of the disputed property to be ineffective, void and not binding as against the plaintiffs and for permanent injunction. The suit was, inter-alia filed contending therein that the plaintiffs and defendant No. 1 & 2 are of same family and are successors of Late Sampatram and the defendant No. 3 Ajay Kumar is a third person. It was also contended that one property of Sampatram, which is a residential house situated in Village Malakhera is undivided property of joint S.B. Civil Writ Petition No. 8973/2014 Jagdish & Ors. Vs. Sonu & Ors.
3family, in which the plaintiffs and defendant No. 1 & 2 are having equal rights. The said property is in joint possession and occupation of the plaintiffs. It was further, contended that on 02- 09-2013, the defendant No. 1 has unauthorizedly executed a sale deed of part of the property in favour of the defendant No. 3, which is shown in yellow colour in the site plan annexed with the plaint. Since the property was undivided property of joint family and was in joint possession of the plaintiffs of the suit, therefore, a fixed court fees of Rs. 200/- for the relief of partition has been paid and separate court fees has been paid for the relief of declaration and permanent injunction to be valued at Rs. 400/- each.
Thereafter, defendant No. 2 filed a written statement admitting the contents of the plaint and prayed to decree the suit. The defendant/respondent Nos. 1 & 3 filed separate written statements denying the material averments of the plaint and prayed to dismiss the suit of the plaintiffs.
Defendant Nos. 1 & 3 filed separate applications under Order 7 Rule 11 of CPC read with Section 11 of the Act, contending therein that the plaintiffs pleaded that on 24-09- 2013, they found defendant No. 3 in possession of the property shown in yellow colour and thereby admitted that the property in dispute is not in joint possession, therefore, plaintiffs had to pay ad-valorem court-fees on the market value of their share in the property, whereas, they paid court fee of Rs. 200/- only. It is also stated that the plaintiffs also sought prayer of declaration S.B. Civil Writ Petition No. 8973/2014 Jagdish & Ors. Vs. Sonu & Ors.
4challenging the sale deed dated 02-09-2013, for which they had to pay court-fee under Section 24 (a) of the Act, on market value of the property, but the plaintiffs did not pay ad-velorem court- fee on the market value. After hearing learned counsel for the parties, the learned Trial court allowed the applications vide impugned order dated 12-08-2014 and passed the directions as noticed hereinabove. Being aggrieved with the said order, the plaintiff/petitioners have preferred this writ petition.
Learned counsel for the petitioners Mr. Bipin Gupta submitted that it is not disputed that the property in dispute was purchased by Sampatram, the plaintiffs and defendant Nos. 1 & 2 are the successors of Sampatram and, thus, are having joint ownership. Therefore, property remains joint property and the court fees for the relief of partition of the joint property, has to be Rs. 200/- as per the provisions of Section 35 (2) of the Act, irrespective of the valuation of the property. Learned counsel for the petitioners also submitted that as the plaintiffs were not party to the sale deed, in respect whereof, the relief of the declaration has been sought, therefore, court-fee is payable under Section 24 (e) of the Act. Thus, the learned trial court has committed gross illegality in passing the impugned order and prayed to accept the petition, to quash and set aside the impugned order and to dismiss the applications filed by the defendant-respondents Learned counsel for the petitioners placed reliance on:-
(1) 2012(3) WLC (Raj.) 142 S.B. Civil Writ Petition No. 8973/2014 Jagdish & Ors. Vs. Sonu & Ors.5
Imortal Infrastructure Private Ltd. Vs. Lookwell Life Space Pvt. Ltd. & Ors.
(2) AIR 2002 Supreme Court 233 Kamaleshwar Kishore Singh Vs. Paras Nath Singh & Ors.
(3) AIR 1987 Supreme Court 2085(1) Smt. Tara Devi Vs. Sri Thakur Radha Krishna Maharaj (4) 2004(1) WLC (Raj) 544 Smt. Meena @ Hema Vs. Smt. Komal Devi & Ors.
(5) (2007) 1 Supreme Court Cases 694 Jagannath Amin Vs. Seetharama (dead) by LRs. & Ors. (6) AIR 1980 Supreme Court 691 Neelavathi & Ors. Vs. N. Natarajan & Ors.
Per contra, learned counsel for the respondent Nos. 1 & 3 Mr. Mahendra Goyal vehemently opposed the submissions made by learned counsel for the petitioners. Learned counsel submitted that the plaintiff/petitioners sought relief of declaration and separate possession, therefore, they are liable to pay court-fee under Section 24 (a) of the Act for the relief of declaration, and under Section 35 (1) of the Act for the relief of partition, therefore, the learned Trial court was justified in passing the impugned order. Learned counsel also submitted that the order passed by the learned Trial Court does not call for any interference by this Court and prayed to dismiss the petition, being devoid of substance.
Learned counsel for the respondents placed reliance on:-
1. AIR 1978 Rajasthan 123 Makhan Lal & Anr. Vs. Urban Improvement Trust, Jaipur City & Anr.
2. Copy of order dated 08-12-2014 passed by Coordinate Bench at Jodhpur in SB CWP No. 7765/2014, titled Smt. Ratan Devi Vs. Gawra Devi & Ors.
S.B. Civil Writ Petition No. 8973/2014 Jagdish & Ors. Vs. Sonu & Ors.
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3. Copy of order dated 03-07-2013 passed by Coordinate Bench at Jodhpur in SB Civil CWP No. 3550/2011, titled Dilip Singh & Anr. Vs. Govind Agarwal & Ors.
I have considered the rival submissions of learned counsel for the parties and perused the material available on record.
To deal with the present controversy, relevant provisions of the Act of 1961, are as under:-
"11. Decision as to proper fee. - (1) In every suit instituted in any Court, the Court shall, before ordering the plaint to be registered, decide on the materials and allegations contained in plaint and on the materials contained in the statement, if any, filed under section 10, the proper fee payable thereon, the decision being however, subject to review, further review and correction in the manner specified in the succeeding sub-sections.
(2) Any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule to the Code of Civil Procedure, 1908 (Central Act 5 of 1908). If the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid. If the plaint be not so amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit.
S.B. Civil Writ Petition No. 8973/2014 Jagdish & Ors. Vs. Sonu & Ors.
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....... ....... ....... ........ ....... ......."
"24. Suits for declaration. - In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under section 25 -
(a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market-value of the property, subject to a minimum fee of twenty rupees;
(b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market-value of the property, subject to a minimum fee of twenty rupees;
(c) where the prayer relates to the plaintiff's exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint subject to a minimum fee of forty rupees;
(d) where the prayer is for a declaration with reference to any property and no consequential relief is prayed for, fee shall be computed on the market-value of the property, subject to a minimum fee of twenty rupees;
(e) in other cases, whether the subject-
matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint, subject to a minimum fee of twenty- five rupees."
S.B. Civil Writ Petition No. 8973/2014 Jagdish & Ors. Vs. Sonu & Ors.
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"35. Partition suits. - (1) In a suit for partition and separate possession of a share in joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market-value of the plaintiff's share of the property.
(2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates, namely:-
(i) Rupees thirty if the value of plaintiff's share is Rs. 5,000 or less;
(ii) Rupees one hundred if the value is above Rs. 5,000 but does not exceed Rs. 10,000; and
(iii) Rupees two hundred if such value exceeds Rs. 10,000.
...... ...... ......
...... ...... ....."
Provisions of Order 7 Rule 11 of CPC are as under:-
11. Rejection of Plaint.- The plaint shall be rejected in the following cases:-
(a) Where it does not disclose a cause of action;
(b) where the relief claimed is under-
valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the S.B. Civil Writ Petition No. 8973/2014 Jagdish & Ors. Vs. Sonu & Ors.
9requisite stamp-paper within a time to be fixed by the Court, fails to do do;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9.
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp- papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
From bare look of provisions of sub-Section (2) of Section 11 of the Act of 1961, it reveals that if the defendant pleads that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient, it is enjoined upon the court to hear and decide all questions arising on such pleas, before hearing of the suit under Order 18 of CPC.
In Imortal Infrastructure Pvt. Ltd. Vs. Lookwell Life Space Pvt. Ltd. & Ors. (supra), coordinate Bench of this Court relying upon the decision of Hon'ble Apex Court in Saleem Bhai & Ors. Vs. State of Maharashtra & Ors. reported in 2003 (1) SCC 557, has held that for the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule 11 of the Code, the S.B. Civil Writ Petition No. 8973/2014 Jagdish & Ors. Vs. Sonu & Ors.
10averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. The crux is that the disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 of CPC.
In Neelavathi & Ors. Vs. N. Natarajan & Ors. (supra), Honb'le Apex Court, while interpreting "co-owner plaintiff that he could not remain in joint possession," has held that the question of court-fee must be considered in the light of the allegations made in the plaint and it's decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole. It was also held that the general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed, the law presumes that he is in joint possession, unless he is excluded from the possession.
In Tara Devi Vs. Thakur Radha Krishna Maharaj (supra), Hon'ble Apex Court has held that the plaintiff is free to make his own estimation of the reliefs sought in the plaint and S.B. Civil Writ Petition No. 8973/2014 Jagdish & Ors. Vs. Sonu & Ors.
11such valuation both for the purposes of court-fee and jurisdiction, has to be ordinarily accepted. It is only in cases where it appears to the Court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the Court can examine the valuation and can revise the same.
In Kamaleshwar Kishore Singh Vs. Paras Nath Singh & Ors. (supra), Hon'ble Apex Court has held that it is well settled that the Court-fee has to be paid on the plaint as framed and not on the plaint as it ought to have been framed, unless by astuteness employed in drafting the plaint the plaintiff has attempted at evading payment of court- fee or unless there be a provision of law requiring the plaintiff to value the suit and pay the court-fee in a manner other than the one adopted by the plaintiff. The court shall begin with an assumption, for the purpose of determining the court-fees payable on the plaint that the averments made therein by the plaintiff are correct. The defence taken in the written statement may not be relevant for the purpose of deciding the payment of the court-fee by the plaintiff.
In Jagannath Amin Vs. Seetharama (supra), Hon'ble Apex Court relying on it's earlier decision in Neelavathi Vs. N. Natarajan case (supra), has held that before the plaintiffs could be called upon to pay court fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear S.B. Civil Writ Petition No. 8973/2014 Jagdish & Ors. Vs. Sonu & Ors.
12and specific averment in the plaint that they had been 'excluded' from joint possession to which they are entitled in law. The averments in the plaint that the plaintiffs could not remain in joint possession as they were not given any income from the joint family property would not amount to their exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiffs had been excluded from possession."
In Smt. Meena @ Hema Vs. Smt. Komal Devi & Ors. (supra), Coordinate Bench of this court, relying on judgment of Hon'ble Apex Court in Neelavathi & Ors. Vs. N. Natarajan & Ors. (supra), has held that the precise distinction between the two sub-Sections (1) & (2) is that for sub-Section (1), the property must be owned jointly, or in common by the plaintiff, and he may have been excluded from possession of such property, in which event, the court fees is payable on the market value of the plaintiff's share. On the other hand, where the suit is for partition and separate possession of the family property, or the property owned jointly, or in common by the plaintiff, who is in joint possession of such property, fee shall be paid at the fixed rates mentioned therein.
In Dilip Singh Shaktawat & Anr. Vs. Govind Agarwal & Ors. (supra), Coordinate Bench of this court has observed that scope of interference by this court under Article 227 of the Constitution of India with the interlocutory order passed by the trial Court, is narrow and such orders are not required to be S.B. Civil Writ Petition No. 8973/2014 Jagdish & Ors. Vs. Sonu & Ors.
13upset, unless there is serious miscarriage of justice.
In Makhan Lal & Anr. Vs. Urban Improvement Trust (supra), the respondent UIT filed a suit against the petitioners for declaration and possession of the suit property. The suit was valued at Rs. 10,000/- and it was stated that court fee paid as provided under Section 24 (a) of the Act of 1961. Defendants raised issue that the valuation of the suit property is Rs. 50,000/- and therefore, the court-fees paid is insufficient. Coordinate Bench of this court has held that if the plaintiff was a party to the sale deed, or to the decree then the court fees would have been payable under Section 38 of the Act, but where the plaintiff was not a party either to the decree or to the sale deed, the court- fees would be payable under Section 24 (a) of the Act.
In Smt. Ratan Devi Vs. Smt. Gawra Devi & Ors. (supra), the plaintiff filed a suit for partition and claimed that as a co- owner, she was in physical possession of the suit property and paid court-fees of Rs. 200/-. The suit was filed on 02-01-2012 and on the same day at about 5:15 PM, the defendant Nos. 1 to 4 transferred the suit property. Therefore, the plaintiff filed amendment application which was allowed. Coordinate Bench of this court observed that the court-fees paid in the case of unamended plaint, is proper, however, after amendment in the plaint on account of the fact that the property came to be transferred on the date of filing of the suit itself, the plaint was amended and relief seeking declaration qua the transfer made to the extent of plaintiff's share has been sought, the nature of S.B. Civil Writ Petition No. 8973/2014 Jagdish & Ors. Vs. Sonu & Ors.
14reliefs sought by the plaintiff by way of amendment, clearly brings the same within the four corners of Section 24 of the Act of 1961 and the court-fees has to be computed on the market value of the property.
From the discussions made above, it is settled position of law that the relevant facts which need to be taken into consideration for deciding an application under Order 7 Rule 11
(a) and (d) of CPC, are the averments made in the plaint, and the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage and the disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 of CPC. It is not disputed that objections of the defendants with regard to insufficiency of court-fee, should be heard and decided before the hearing of the suit as contemplated by Order XVIII of the Code, 1908. It is also settled law that the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation for the purpose of court-fee has to be ordinarily accepted.
According to the plaint filed by the petitioners, the disputed property is a residential house shown in the site plan and defendant No. 1 executed a sale deed of a part of the disputed property in favour of defendant No. 3, which is shown in yellow colour in the site plan. The plaintiffs also pleaded that the disputed property is undivided joint property of plaintiffs and defendant Nos. 1 & 2, and the property is in their joint possession. The sale deed executed by defendant No. 1 in favour S.B. Civil Writ Petition No. 8973/2014 Jagdish & Ors. Vs. Sonu & Ors.
15of defendant No. 3, is of part of the property and not of whole of the property in dispute, therefore, it does not reveal that the plaintiffs have been ousted from the whole property. Moreover, it reveals that the plaintiffs are in possession of part of the disputed property. The plaintiffs sought the relief of partition by metes and bounds and separate possession of their share in the property. As the suit is for partition and separate possession of the property owned jointly, fee shall be payable at the fixed rates mentioned in sub-Section (2) of Section 35 of the Act of 1961 and not under sub-Section (1) of Section 35.
According to the plaint, the plaintiffs are in joint possession of the property. Thus, it cannot be accepted that plaintiff/petitioners have filed the suit for the relief of declaration and possession. According to Section 38 of the Act, where the executant of a deed, wants it to be annulled, he has to seek cancellation of the deed and has to pay ad-valorem court-fee on the consideration stated in the sale deed. If a non-executant, who is not in possession and sues for declaration that the deed is null and void and does not bind him and his heirs and also for possession of the property, he has to pay ad-valorem court-fee on the market value of the property, as mentioned in Section 24
(a) of the Act. If a non-executant, who is in possession and sues for declaration and for consequential injunction and the relief sought is with reference to any immovable property, he has to pay court-fee on one half of the market value of the property as mentioned in Section 24 (b) of the Act. Section 24 (e) of the Act S.B. Civil Writ Petition No. 8973/2014 Jagdish & Ors. Vs. Sonu & Ors.
16provides that in other cases, whether the subject matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint, subject to a minimum fee of twenty-five rupees.
As stated above, the plaintiff/petitioners are non-executant of the sale deed and they are in possession and they sued for a declaration that the deed is null and void and does not bind them, thus, provisions of clause (a), (b), (c) & (d) of Section 24 of the Act does not apply in this case for the purpose of payment of court-fee on the plaint. Therefore, the present case comes under the category of clause (e) of Section 24 of the Act and the court-fee shall be computed on the amount at which the relief sought is valued in the plaint, subject to a minimum fee of twenty-five rupees.
The case of Smt. Ratan Devi Vs. Smt. Gawra Devi & Ors. (supra), is distinguishable due to difference in facts and circumstances of the case, therefore, is not of much help to the respondents.
In Makhan Lal & Anr. Vs. Urban Improvement Trust (supra), the suit was filed for the relief of declaration and possession. Whereas, in present case the plaintiffs sought the relief of declaration, pleading that they are in joint possession of the property. As such, the said judgment apparently in no way, helps the respondents.
In view of the above discussions, provisions of Section 24
(e) and 35 (2) of the Act of 1961 are applicable in the present S.B. Civil Writ Petition No. 8973/2014 Jagdish & Ors. Vs. Sonu & Ors.
17case for the purpose of payment of court-fee on the plaint filed by the petitioners, and provisions of Section 24 (a) and 35 (1) of the Act can not be made applicable in this case.
From perusal of copy of the plaint made available to us, it reveals that the plaintiff/petitioners paid sufficient court-fee for the relief of partition and separate possession of their share in the property in dispute, but the court-fee paid for the relief of declaration is insufficient, as they did not pay minimum court-fee of twenty-five rupees prescribed under Section 24 (e) of the Act. Therefore, learned Trial Court should fix a date before which the plaint shall be amended in accordance with the observation of this Court and the deficit court-fee shall be paid.
In view of the discussions made above, there will be serious miscarriage of justice, if the impugned order dated 12-08-2014 passed by the learned Trial Court is not quashed and allowed to sustain.
Consequently, the writ petition filed by the plaintiff/petitioners is allowed, impugned order dated 12-08-2014 passed by the learned Trial Court is quashed and set aside, and the applications filed by the defendant/respondents No. 1 & 3 are dismissed. However, the learned Trial Court shall fix a date before which the plaint shall be amended in accordance with the observation made in preceding paragraph. No costs.
(DINESH CHANDRA SOMANI),J.
A.Kumar/