Mr. Anil Kshetarpal, J. (Oral):- CM No.1943-C of 2016

1. For the reasons stated in the application, which is supported by an affidavit, legal heirs of respondent No.4-Ram Pal as mentioned in the application are ordered to be brought on record, for the purpose of prosecuting the present appeal.

Application stands allowed.

2. CM No.5974-C of 2011 For the reasons stated in the application, which is supported by an affidavit, delay of 32 days in refiling the appeal is condoned.

Application is allowed.

Main Case

3. The plaintiff is in the Regular Second Appeal against the order passed by the learned trial Court dated 06.06.2009, whereby the plaint was rejected on account of non-payment of the Court fees, as also the order passed by the First Appellate Court dismissing the appeal on the ground that it is barred by time.

4. The plaintiff-appellant had filed a suit for declaration that the Civil Court decree dated 06.05.1993 passed in Civil Suit No.53 of 1993 is null, void and ineffective. The prayer made in the suit reads as under:-

“That the plaintiff prays that a decree for declaration to the effect that civil court decree passed in civil suit No.53 of 1993 on 6.5.1993 by Smt. Navita Parsoon, the then Senior Sub Judge Kaithal in case re: Ishwar versus Soran in respect of suit land is null and void in effective and does not confer any right, title or interest in defendants No.2 to 5 and the sale deed No.714/1 dt. 23.5.95 in respect of land measuring 69 kl, 12 mls cut of suit land in favour of defendants No.6 & 7 is also null and void, in effective and does not confer any right, title or interest in defendants No.6 & 7 and the plaintiff is the owner of the suit land to the extent of ½ share and further a decree for joint possession in respect of ½ share of suit land fully detailed and described in para No.1 above may kindly be passed with costs in favour of plaintiff and against defendants.”

5. In fact, there was an earlier suit filed by Ishwar Singh and others against Soran. The aforesaid suit was for declaration that the plaintiff is owner by way of family settlement. Soran did not contest the suit and admitted the contents of the plaint. On the basis of the aforesaid written statement and the statement made in the Court, the decree was passed by the Court in terms of Order 12 Rule 6 CPC on 06.05.1993.

6. This decree of 1993 was challenged by the plaintiff-appellant by a subsequent suit, prayer whereof has been extracted above. It is apparent that the plaintiff-appellant was not party to the earlier decree. The plaintiff was also not party to the sale deed dated 23.05.1995. During the pendency of the suit, the Court vide order dated 03.09.2005 directed the plaintiff to pay the ad valorem Court fee on the sale consideration. The order passed by the trial Court is extracted as under:-

“Arguments on the point of court fees have already been heard. In this suit the plaintiff has challenged the civil court decree dated 6.5.1993 passed in civil suit no.53 of 1993 titled as Ishwar Singh and others versus Soran passed by Ms. Navita Parsoon, the then learned Senior Sub-Judge, Kaithal along with the registered sale deed No.714/1 dated 23.5.1995 regarding 69 kanals 12 marlas of the suit land executed by defendant Nos.4 and 5 in favour of defendant Nos.6 & 7, whereas he has valued the suit for the purposes of court fee and jurisdiction at Rs.200/- only. The suit has been filed by the plaintiff on the plea that Soran his father was not competent to suffer the decree in favour of Ishwar and defendants No.4 and 5 as the suit land was ancestral in his hand and the plaintiff had also a right therein by birth. In view of this fact, I am of the view that the plaintiff is liable to pay the ad valorem court fee on the suit value of the previous suit No.53 of 1993 titled as Ishwar Singh and others versus Soran passed by Ms. Navita Parsoon, the then learned Sub Judge, Kaithal. Furthermore, the plaintiff is liable to pay the court fee on the sale c