VIRENDER MALIK Vs. STATE AND ORS.

JUDGEMENT

(1.) PETITIONER is aggrieved by the two orders; first is dated 02.02.2012 and the subsequent order dated 22.3.2012. The order dated 22.3.2012 had dismissed the application filed by the petitioner under Order XLVII of the Code of Civil Procedure (hereinafter referred to as the Code) seeking review of its earlier order dated 02.02.2011. Vide order dated 02.02.2011 the application filed by the petitioner seeking amendment of the plaint had been declined. Record shows that this case is a chequered history; it was initially filed as a suit for declaration, cancellation of documents dated 15.03.2007 as also claiming relief of possession and permanent injunction. The court had noted that the suit has been under -valued and deficient court fee was directed to be paid up. This order was reiterated on 25.7.2011, 20.9.2011, 24.11.2011, 21.01.2012 and since court fee was not paid, on 02.02.2012 the CM(M) 995/2012 Page 1 of 3 plaint was rejected. On this date the application filed by the petitioner under Order VI Rule 17 of the Code seeking amendment of the plaint had also been considered. This application came to be filed by the petitioner at the time when the petitioner, found that it was unable to pay up deficient court fee and by way of this application he sought permission of the court to give up the relief of possession. However, the record shows that the adequate court fee had also not been affixed on the prayer for declaration. This has been noted in the subsequent impugned order dated 23.02.2012 which had taken up the review petition seeking review of the order dated 02.02.2012. The impugned order dismissing the review petition has also noted that the sale deed of which cancellation has been sought is dated 15.3.2007 and the suit of the plaintiff appears prima facie time barred.

(2.) COUNSEL for the petitioner is aggrieved by the aforenoted finding. Her submission is that although admittedly opportunity had been granted to her to pay up deficient court fee but because of financial constraint and dire financial conditions the petitioner could not gather sufficient money to pay up the money. He has also been taking assistance of the legal aid. It was only in these circumstances that he was constrained to move the aforenoted application under Order VI Rule 17 of the Code seeking permission of the court to give up his relief of possession. Attention has been drawn to the order dated 02.02.2012 wherein it has wrongly be noted that the plaintiff was seeking a relief of possession; in fact by way of this application, the plaintiff/petitioner had sought permission to give up the relief of possession.

(3.) APART from the fact that this petition has been vehemently opposed by the other contesting defendants, record shows that already enough opportunity has been granted to the petitioner to comply with its directions for payment of deficient court fee. It is not the stand of the petitioner that his financial condition has now improved. If he could not have paid the court fee earlier how he would be in a position to pay the court fee at this stage has also not been explained. In this background the review petition dismissing the relief seeking review of the order dated 02.02.2012 vide which the petitioner had sought an amendment in the plaint when record shows that enough opportunity had already been granted to the petitioner to pay up court fee and the petitioner has also taken adjournments for the said purpose. The impugned order suffers from no infirmity. Dismissed. Trial court record be sent back.