RAM KRISHNA DHANDHANIA Vs. CIVIL JUDGE SR DIVN

JUDGEMENT

(1.) This writ petition has been filed seeking a direction to the learned Civil Judge (Senior Division), Kanpur Nagar to expedite the trial of the Suit No. 378 of 2000, Ram Krishna Dhandhania v. Prem Shanker Pandey, which is not taking any progress in view of the objections raised by the defendant-respondents in respect of the payment of Court-fees.

(2.) The facts and circumstances giving rise to this case are that the petitioners are purchaser of the property in dispute in which the defendants 2 and 3 had been tenants. At the time of purchasing the said property, petitioners entered into an agreement with the said defendant-respondents to allot them the area equivalent to 50% of the total area which had been in their possession prior to purchase of the said property. Certain amount of security has been deposited with the said defendant-respondents till the construction is completed and the possession is handed over to them after reconstruction. In that agreement, it was mentioned that the said defendants had been in possession to the extent of 1550 sq. ft. However, subsequently, it was found that they were in possession of only 485 sq. ft. Thus, rectification of the Deed was sought and as it was not made, the petitioners- plaintiffs filed the suit for rectifying the said agreement on various grounds. Written statement and replications have been filed; 12 issues have been framed and two of them relate to the payment of court-fee, namely (1) whether the suit is undervalued and (2) whether the court-fee paid is insufficient. These issues have been decided as a primary issues in view of the provisions of Order XIV, Rules 1 and 2 of the Code of Civil Procedure (hereinafter called the 'CPC') vide order dated 22-1-2004. By consent of the parties valuation of the suit stood enhanced and the petitioner-plaintiffs deposited the required court-fee on the valuation agreed by the parties. However, application was filed by the defendant-respondents to recall the said order and to redetermine the whole issue. The trial Court after hearing the learned counsel for the parties on the said application and objections, rejected the application by an order dated 18-9-2004, which is quoted below :- "18-9-2004. Case called out. Parties counsel are present. Application 90C to recall the order dated 21-8-2004. It is filed by the defendant. Opposed. Objection is 91C. Heard. Order dated 21-8-2004 has been passed after hearing both the learned counsel of the parties. Report submitted by the Munsarim has been accepted by the Court. Hence it cannot be reagitated in this Court. Application 90C therefore is rejected. Fix 11- 10-2004 for evidence."

(3.) Again, the defendants-respondents filed another application to recall the said order, which is still pending.