By the Court.—Heard Sri Vikram D. Chauhan, learned counsel for appellant and Sri M.D. Singh Shekhar, learned Senior Counsel for respondents.

2. This appeal under Section 96 of Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has arisen from judgment and decree dated 25th October, 2007 passed in Original Suit No. 721/05 (Shri Krishna Chand Tiwari and others v. Shri Satish Chand Tiwari) by Civil Judge (Senior Division), Agra rejecting plaint of aforesaid suit under Order VII Rule 11(b) CPC for non compliance of the order with respect to amount of valuation and payment of requisite Court fee.

3. Appellant Krishna Chand Tiwari (now deceased and substituted by legal heirs) and respondent-2, Satish Chand Tiwari (now deceased and substituted by legal heirs) instituted Original Suit No. 721 of 2005 in the Court of Civil Judge (Senior Division), Agra praying for a declaratory decree that the ‘Will’ dated 27.3.1985, allegedly executed in favour of defendant Satish Chand Tiwari by Late Jagannath Tiwari, is void, invalid and a manufactured document. He also sought a permanent prohibitory injunction restraining defendant from selling disputed property to any other person during pendency of suit.

4. Defendant contested suit by filing written statement, and besides other grounds, has averred in paragraph-25 of written statement that plaintiff has not properly valued suit and adequate Court fees has not been paid, hence plaint is liable to be rejected under Order VII, Rule 11, CPC.

5. Trial Court formulated following seven issues.

^^1- D;k olh;r fnukad 27-3-1985 okn i= esa fn;s x;s vk/kkjksa ij voS/k o 'kwU; ?kksf’kr fd;s tkus ;ksX; gS] ;fn gka rks izHkko A

Whether Will dated 27.3.1985 is liable to declared null and void on the basis of the grounds given in the plaint? If so, its effect?

2- D;k okn vkns'k &7 fu;e &11 lh-ih-lh- ds fu;e ls okf/kr gSA

Whether the suit is barred by Order 7 Rule 11 of CPC?

3- D;k okn esa vkns'k &7 fu;e&3 lh-ih-lh- ds izkfo/kku ykew gksrs gSA

Whether the provisions of Order 7 Rule 3 of the CPC are applicable to the suit?

4- D;k okn /kkjk&34]38]41 fofufnZ"V vuqrks"k vf/kfu;e ds izko/kkuksa ls okf/kr gSA

Whether the suit is barred by the provisions of Sections 34, 38 and 41 of the Specific Relief Act?

5- D;k okn vYi ewY;kfdar gS rFkk vnk U;k; 'kqYd vi;kZIr gS A

Whether the suit is undervalued and the Court fee paid is insufficient?

6- D;k okn le;kof/k ls ckf/kr gS A

Whether the suit is time barred?

7- oknh fdl vuqrks"k dks ikus dk vfèkdkjh gSaA^^

What relief the plaintiff is entitled to get?” (English Translation by Court)

6. Issue 5 was taken as a preliminary issue and decided vide judgment and order dated 19.7.2007. Civil Judge (Senior Division), Agra found that valuation of disputed property was Rs. 40,00000/- and adequate Court fees was not paid on the said valuation. He, therefore, directed plaintiffs to pay requisite Court fees and take necessary steps/pairvi within ten days. The relevant extract of order dated 19.7.2007 reads as under:

^^vr% Li"V gS fd oknh ds }kjk okn dk ewY;kadu de fd;k x;k gS vkSj U;k; 'kqYd vi;kZIr vnk fd;k x;k gSA izfroknh bl okn fcUnq dks fl) djus esa lQy jgk gS rnuqlkj ;g okn fcUnq oknh ds fo:) rFkk izfroknh ds i{k esa fu.khZr fd;k tkrk gS A

oknh dks vknsf'kr fd;k tkrk gS fd oks fookfnr lEifRr dk ewY;kadu 40]00]000@& :i;s dk;e djsa vkSj ml ij fu;ekuqlkj U;k; 'kqYd vnk djsaAbl ckor oknh vko’;d iSjoh 10 fnu esa djsaA^^

“Hence, it is clear that the suit has been undervalued and insufficient Court fee has been paid by the plaintiff. The defendant has been successful in proving this issue; accordingly, the issue is decided against the plaintiff and in favour of the defendant.

The plaintiff is ordered to determine the value of the disputed property to be Rs. 40,00,000/- and to pay the Court fee as per rules. The plaintiff shall take necessary steps in this respect within ten days.” (English Translation by Court)

7. Plaintiff failed to take steps withi