JAMNA EDVI Vs. RAJENDRA PRASAD JI

JUDGEMENT

(1.) The petitioner/plaintiff has filed this petition for quashment of the order dated 15.9.09 Annex.P/5 passed by the IV ADJ (FTC) Khandwa in COS No.2- A/09 whereby allowing the application of the respondent filed under Order 7 rule 10 r/w 11 of the CPC in part, the petitioner has been directed to pay the requisite court fees in accordance with the prayer made in the plaint. In addition to it, the petitioner was also directed to amend the pleadings for consequential relief of possession because even on decreeing the suit the decree could not be executed for obtaining the possession of the property by the petitioner.

(2.) Petitioner's counsel after taking me through the averments of the petition as well as the papers placed on the record along with the impugned order said that in view of the settled proposition of the law, the parties like the petitioner/ plaintiff has a right to to get the decree of declaration only with respect of her share in the disputed property along with the prayer of perpetual injunction restraining the respondent/defendant to interfere in her right and share in the disputed property and, in such premises, she could not be insisted to amend the plaint for the prayer of separate possession of the property if she wants to keep the property in the joint ownership to maintain the unity of the family and, in such premises, the direction of the trial court to amend the plaint for the purpose of separate possession is not sustainable under the law. In continuation, he said that although in the plaint three different declarations with respect of the disputed property has been made by the petitioner i.e (a) declaration regarding charge over the disputed house of her maintenance ;(b) declaration of her share in the house/plot and (c ) declaration to declare the alleged Will as ab initio void. And as a consequence of such relief, the prayer for perpetual injunction has been made. So, in such premises, the valuation of single declaration and the court fees paid accordingly, is sufficient. It does not require any more valuation or the court fees and prayed for setting aside the impugned order and quashment of the aforesaid application of the respondent by allowing this petition.

(3.) The aforesaid prayer is opposed by the respondent's counsel Shri Vivek Rusia contending that the impugned order being based on the proviso of section 34 of the Specific Relief Act and also taking into consideration that three different reliefs of declaration have been made by the petitioner , is in conformity with law. It does not require any interference at this stage. He prayed that in view of the proviso of the aforesaid section 34, the suit of the petitioner could not be decreed because the available consequential relief has not been prayed in the plaint and prayed for dismissal of this petition. He also placed his reliance on a decision of the Apex Court in the matter of S.Ram Ar.S.Sp. Sathappa Chettiar Vs. S. Rm. Ar. Rm. Ramanathan Chettiar, 1958 AIR(SC) 245