Bombay High Court
Anusayabai Abaji Palve Died Thr Lrs ... vs Baburao Alias Laxam Vitthal Garje Died ... on 22 July, 2025
2025:BHC-AUG:19872
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
903 WRIT PETITION NO. 11327 OF 2024
1. Anusayabai Abaji Palve (dead)
Through Lr's
1.A Bhagwan Abaji Palve (dead)
Through Lr's
1.A.1. Swati Bhagwan Palve
Age: 51 Years, Occ: Household
R/o Dharvadi. Tq. Pathardi
Dist. Ahmednagar
1.A.2. Pramod Bhagwan Palve
Age: 31 Years, Oce: Agriculture
R/o Dharvadi, Tq. Pathardi
Dist. Ahmednagar
1.A.3. Sau. Priyanka Vishal Shak
Age: 28 Years, Occ: Household
Canara Bank Colony, Anand Nagar,
Behind Mauli Mandir,
Tq. & Dist Beed.
1.A.4.Devendra Bhagwan Palve
Age: 25 Occ: Agriculture
R/o Dharvadi, T'q. Pathardi
Dist. Ahmednagar.
1.B. Ashok Abaji Palve
Age: 60, Occ: Agri,
1.C. Rajendra Abaji Palve,
Age: 57 Occ: Agriculture,
1.B & 1.C both R/o: Dharvadi, Tq. Pathardi
Dist. Ahmednagar ...Petitioners
VERSUS
1. Baburao @ Laxam Vitthal Garje (deceased)
Through Lr's
Narwade
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1.A Gangubai Baburao Garje
Age: 85 Years, Oce: Agriculture,
1.B Abhishek Rajendra Garje
Age: 20 years, Ouc: NIL,
1.C Shweta Rajednra Garje
Age: 23 years, Occ: NIL,
1.D Arunatai Baburao Garje
Age: 40 years, Occ: Agriculture,
A11 1A to 1D are
R/o 335/A, Nana peth Pune 411002.
Present R/o, Gomal Wadi, post. Pimpalner,
Tq. Shirur (kasara), Dist. Beed.
2. Bajirao Vithalrao Garje
Age: 75 years, Occ: Bussiness,
R/o 335/A, nana peth Pune 411002.
Present Madhuri Sadi Center, Chandnagar,
Garje Market, Pune.
3. Ganpat Vithalrao Garje (deceased)
Through LR's
3.A. Ratanbai Sampat Garje,
Age: 52 Years, Occ: Agriculture/Household
3.B Vikas Sampat Garje
Age: 30 Years, Occ: Agriculture,
3.C Sanjay Sampat Garje
Age: 27 Years, Occ: Agriculture,
3.D. Alka Sampat Garje
Age: 24 Years: Occ: Agriculture,
3.E. Baban Ganpat Garje
Age: 46 Years, Occ: Agriculture,
All 3.A to 3.E Gomal Wadi,
post. Pimpalner, Tq. Shirur (kasar), Dist. Beed.
3.F Indubai Babanrao Garkal
Age: 52 Years, Occ. Agirculnure,
R/o Pargaon, Tq. Gevari, Dist. Beed.
3.G Sunita Bhagwan Garkal
Age: 47 Years, Occ: Agriculture,
Narwade
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R/o Pargaon, Tq. Gevari,
Dist. Beed.
3.H Mandabai Ghanshyam Nagargoje
Age: 45 Years, Occ: Agriculture,
R/o Ghuge wadi, Tq. Patoda Dist. Beed.
3.I Shakuntala Ganpat Nagargoje,
Age: 40 years, Oce: Agriculture,
R/o. Bhosari Tq. & Dist. Pune.
4. Prakash Bajirao Garje,
Age: 56 Years, Occ: Agriculture,
R/o. Gomal Wadi, post. Pimpalner,
Tq. Shirur (kasara), Dist. Beed.
5. Shyamabai Prakash Garje,
Age: 50 Years, Occ: Agriculture,
Gomal Wadi, post. Pimpalner,
Tq. Shirur (kasara), Dist. Beed.
6. Bhausaheb Ganpat Garje,
Age: 38 Years, Occ: Agriculture and Service
Gomal Wadi, post. Pimpalner,
Tq. Shirur (Kasara), Dist. Beed.
7. Rahibai Ganpat Garje,
Age: 65 Years, Occ: Agriculture/Household,
Gomal Wadi, post. Pimpalner,
Tq. Shirur (kasara), Dist. Beed.
8. Ram baburao @ Laxaman Garje
Age: 40 Years, Occ: Painter,
R/o 335/A, nana peth Pune 411002.
9. Shubhash Bajirao Garje
Age: 42 Years, Occ: Business,
R/o 335/A, nana peth Pune 411002 ...Respondents
...
Mr. S. S. Kulkarni Sanket S., Advocate for the Petitioner
Mr. N. C. Garud, Advocate for Respondent No.2, 3-F, 3-G, 4, 6 & 7
...
WITH
CIVIL APPLICATION NO. 7262 OF 2025 IN WP/11327/2024
...
Narwade
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CORAM : ROHIT W. JOSHI, J.
DATED : 22th JULY 2025
ORAL JUDGMENT :-
1. The predecessor of present petitioner-late Anusayabai Palve, filed a suit for partition and separate possession being Regular Civil Suit No.86 of 2012.
2. The respondents who are defendants in the said suit filed an application raising objection with respect to pecuniary jurisdiction. The learned 2nd joint Civil Judge Junior Division, Pathardi vide order dated 24.03.2023 has held that the suit is beyond its pecuniary jurisdiction, in view of Section 24 of the Maharashtra Civil Courts Act, 1869 and has accordingly passed an order under Order VII Rule 10 of the Civil Procedure Code, 1908 (hereinafter referred to as "the CPC") thereby returning the plaint to the plaintiff for presentation before the appropriate Court.
3. The plaint was accordingly presented to the Court of Civil Judge Senior Division, Ahmednagar. The learned Civil Judge, Senior Division, Ahmednagar has passed order dated 24.06.2024 refusing registration of the suit in view of failure on the part of the plaintiffs to deposit court fees as per order of return of plaint dated 24.03.2023. Vide order dated 10.05.2024 the petitioners/ plaintiffs were given time uptill 10.06.2024 to make payment of deficit Court Fees. On Narwade
903.odt -5- 20.06.2024, the plaintiffs deposited Court Fee of Rs.33,520/- and filed an application expressing intention to make payment of further court fees of Rs.25,000/-. In the said application the plaintiffs indicated willingness to deposit balance Court Fees of Rs.2,41,480/- within a period of one month. The learned Civil Judge has recorded that the plaintiffs did not deposit the amount of Rs.25,000/- as indicated in the application dated 20.06.2024 and also apart from that did not deposit any further amount towards the balance Court Fees. In view of the above, impugned order refusing registration of suit is passed. This order dated 24.06.2024 is challenged by the plaintiffs by filing the present petition.
4. The contention of Mr. Kulkarni, the learned Advocate for the petitioners is that when a plaint is returned by passing an order under Order VII Rule 10 of the CPC, orders passed by the learned Court before the order returning plaint are not binding on the Court to which the plaint is returned. He contends that the proceedings are required to be conducted de-novo. It is the contention of the learned Advocate for the petitioner is that the valuation of the suit as was done by the learned 2nd Joint Civil Judge, Junior Division, Pathardi while returning the plaint will not be binding on the learned Civil Judge, Senior Division, Ahmednagar before whom the suit is pending after the return of plaint. The learned Advocate places reliance on Narwade
903.odt -6- judgment of the Ho'ble Supreme Court in the matter of EXL Careers and Ors. Vs. Frankfinn Aviation Services Private Limited reported in AIR 2020 SC 3670 in support of his contention, and lays additional emphasis on the observations made by the Hon'ble Supreme Court in paragraph 16 of the judgment which reads as under:-
"16. Modern Construction (supra), referred to the consistent position in law by reference to Ramdutt Ramkissen Dass v. E.D. Sassoon & Co., Amar Chand Inani v. The Union of India, Hanamanthappa v. Chandrashekharappa, MANU/SC/0295/1997MANU/SC/0295/1997 :
(1997) 9 SCC 688, Harshad Chimanlal Modi (II) (supra) and after also noticing Joginder Tuli (supra), arrived at the conclusion as follows:
17. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order 7 Rule 10 Code of Civil Procedure and the Plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the Plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court.
However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same.
Joginder Tuli (supra) was also noticed in Harshad Chimanlal Modi (II) (supra) but distinguished on its own facts."
5. Whereas, there can be no quarrel with the proposition laid down on the said judgment and other judgments on similar lines one needs to keep in mind that judgment of a Court cannot be read like a statute it cannot be also interpreted like Euclid's theorems of geometry. A Judgment is always required to be viewed in the particular backdrop of facts and statutes that are considered by the Court while delivering the judgement. Whereas there cannot be any quarrel with general proposition that flows from the said judgment, it Narwade
903.odt -7- needs to be stated that Order VII Rule 10 of the CPC is the unique provision by itself. Under the said provision the Court which otherwise does not have jurisdiction to try and entertain a suit on merits, has the jurisdiction and authority to order that the plaint may be returned for presentation to the Court before whom the suit should have been instituted. Thus, the Court has the jurisdiction to state that it does not have the jurisdiction to entertain the suit and return the plaint for presentation before the appropriate Court.
6. In the present case, objection was raised to pecuniary jurisdiction of the learned Civil Judge, Junior Division. The learned 2nd Joint Civil Judge, Junior Division, Pathardi has recorded that it did not have pecuniary jurisdiction for entertaining the suit. Whenever a Court is required to rule on its pecuniary jurisdiction to decide a suit, implicit in such inquiry is the authority to evaluate the suit for the purpose of court fees and jurisdiction. The learned Civil Judge Junior Division has evaluated the suit for the purpose of pecuniary jurisdiction which was an essential step for determining as to whether it had the pecuniary jurisdiction or not. The ratio of the judgment relied upon by the learned Counsel for the petitioner as also other judgments considered in the said judgment will in the respectful opinion of this Court not be applicable to an order passed under Order VII Rule 10 of the CPC. A Court passing order under Order VII Narwade
903.odt -8- Rule 10 of the CPC does not have the jurisdiction to decide the Suit on merits and therefore when the plaint is returned, proceedings before the Court to which the plaint is returned are required to be conducted de novo. However, the Court which does not have jurisdiction to entertain the suit, does have the jurisdiction to say that it does not have the jurisdiction. This power flows from Order VII Rule 10 of the CPC. The determination that is done by a Court while passing Order VII Rule 10 of the CPC will bind the parties. If any party is aggrieved by determination by an order of Court under Order VII Rule 10 of the CPC, it is open for such parties to challenge the order by filing appeal under Order 43 Rule 1(a) of the CPC.
7. In the considered opinion of this Court the order passed by the 2nd Joint Civil Judge, Junior Division, Pathardi determining value of the suit for the purpose of court fees and jurisdiction is binding on the plaintiffs. It was open for the plaintiffs to challenge the same, however, the plaintiffs have chosen not to challenge the same. The order impugned in the present petition refusing registration of suit on account of failure on the part of the plaintiffs to pay appropriate Court Fees is only an outcome of failure on the part of the plaintiffs to pay court fees as determined under order dated 24.03.2023 passed by the learned 2nd Joint Civil Judge, Junior Division, Pathardi while returning the plaint for presentation before the Court. Narwade
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8. In view of the reasons above, in the considered opinion of this Court, no case for interference is made out. The Writ Petition is therefore dismissed.
9. At this stage, the learned Advocate for the petitioner seeks liberty to challenge the order of returning of plaint passed by the learned 2nd Joint Civil Judge, Junior Division, Pathardi including the valuation of the suit done in the said order. The petitioners is at liberty to challenge the said order in accordance with law.
10. Needless to mention that this court has not decided as to whether the valuation of the suit done by the learned Senior Division is correct or not since that is not the subject matter of challenge in the present petition.
11. Pending Civil Applications, if any, stand disposed of.
[ROHIT W. JOSHI, J.] Narwade