UMESH Vs. ARVIND

JUDGEMENT

(1.) Heard Shri Bhide, learned counsel for the applicant and Shri Deshmukh, learned counsel for the respondent no.1.

(2.) The revision already stands dismissed as against the respondent nos.3 to 4, who are the original defendant nos.2 to 4 in the suit. In a suit filed by the applicant, namely, Regular Civil Suit No.88/2012 (Old Special Civil Suit No. No.919/2008) the present respondent no.1/defendant no.1 had filed a counter-claim against the applicant/plaintiff. When an objection was raised regarding the valuation, by an order dtd. 26/09/2011 (pg.33) the learned Trial Court came to the conclusion that from the perusal of the counter-claim it did not appear that the plaintiff in the counter-claim (defendant no.1) had stated necessary facts as regards to the valuation to the counter-claim and therefore, directed him to state them and if necessary to revalue the counter-claim properly and to pay the proper court fee thereon within 15 days. Though it was directed that the same was to be done within a period of 15 days, the order-sheet which had been tendered across the bar indicates that the next date fixed was 04/11/2011 on which date the respondent no.1 herein filed a pursis (pg.34) indicating valuation of the claim in the counter-claim at Rs.1,10,000.00 and a deposit of additional court fee of Rs.1260.00 along with the pursis bringing the total court fee paid to Rs.1464.00. On 04/11/2011, itself though the learned Trial Court perused the pursis, however, without considering its contents it proceeded to reject the counter claim under Order 7 Rule 11 (b) and (c) of the Code of Civil Procedure ("CPC" for short hereinafter) [pg.35]. Thereafter, on 19/12/2016 an application came to be filed under Sec. 148 r/w Sec. 149 of the CPC by the respondent no.1 seeking to set aside the order dtd. 04/11/2011 rejecting the counter-claim (pg.36) which has been allowed by the impugned order dtd. 27/06/2017 (24/07/2017) [pg.41] which is the subject matter of the present revision.

(3.) Mr. Bhide, learned counsel for the applicant submits that the order dtd. 04/11/2011 rejecting the plaint was an appealable order and therefore application under Sec. 148 r/w 149 of the CPC was not maintainable. He also contends that there was a huge delay of nearly 5 years in filing the application which also would be a ground to reject the same.