SARABJIT PRAKASH Vs. UDYAJIT PRAKASH

JUDGEMENT

(1.) This order shall dispose of IA No. 5066/2009 under Section 151 of CPC filed by the plaintiff for recalling the order dated 29.01.2009 and 17.02.2009 and proceeding with the case on merits.

(2.) Briefly stated the facts of the case are that the plaintiffs who are two in number filed the present suit for partition, rendition of accounts and damages against the five defendants, namely, Udyajit Prakash, Chander Mohini Kochhar, Sushma Lal, Veena Uppal and Deepa Puri. The partition was sought in respect of property bearing no. 33, Sunder Nagar, New Delhi in which both the plaintiffs have claimed 1/7th share each as it belonged to their ancestors. It was stated in para 7 of the plaint that all the movable and immovable properties left behind by the deceased mother of the plaintiff Raj Mohini was in physical and actual possession of the defendant. In para 8 it was alleged that the defendant no. 1 is in physical possession of the suit property and he has deprived the plaintiffs from actual enjoyment of the same. It was alleged that the defendants are liable to pay damages to the plaintiffs as he was entitled to the same being the co-owner of the suit property.

(3.) On the basis of these averments my learned predecessors vide order dated 28.11.2008 had referred to these two paragraphs of the plaint and observed that the plaintiffs were admittedly ousted from the possession, therefore, the plaintiffs will have to pay ad valorem court fees. As they had prayed for possession, the court fee was payable on the same also. It was also observed that the learned counsel for the plaintiffs had sought time to examine these aspects and also to consider amendment of plaint.