RAJ MAL Vs. BACHAN KANWAR

JUDGEMENT

(1.) This is an application by the plaintiffs for refund of court-fees under Section 13 of the Court-fees Act and arises in the following circumstances :

(2.) The plaintiffs filed a suit in the court of the Civil Judge, Jalore, for Rs. 7000/ on the basis of a bond, which was said to have been executed by Zalim Singh, Jagirdar of Rathora. Zalim Singh having died, the suit was filed against his two widows Mst. Pep Kanwar and Mst. Bachan Kanwar. Defendant No. 3 Jeevraj Singh was impleaded on the ground that he claimed to be the adopted son of Zalim Singh. Ganpat Singh was impleaded as defendant No. 4 since he claimed to be the nearest heir of Zalim Singh. The State of Rajasthan was also impleaded as defendant No. 5 since the property of the deceased was said to have been taken in Zapti. The trial court dismissed the suit on the ground that notice under Section 80 C. P. C. was not served on the State and that a notice under Section 55 of the Rajasthan Court of Wards Act ought to have been served on the Court of Wards and without such notices the suit was not maintainable. Aggrieved by this judgment, the plaintiffs filed an appeal in this Court. During the pendency of the appeal, Mst. Pep Kanwar, respondent No. 1 died and her name was struck off. The name of respondent No. 3 Jeevraj Singh was also struck off from the array of respondents, since by that time it was decided that Gan-pat Singh was the rightful heir of Zalim Singh. The name of respondent No. 5 was also struck off on the ground that the estate of the deceased was no longer under Zapti. The appeal thus proceeded against respondent No. 2 Mst. Bachan Kanwar and respondent No, 4 Ganpat Singh. The appeal against Ganpat Singh was dismissed but against Mst. Rachan Kanwar it was allowed and the case was remanded to the trial court for decision on merits.

(3.) Learned counsel for the plaintiffs has urged that the appeal having been allowed against Mst. Bachan Kanwar, his clients are entitled to claim refund of the court-fees. It is contended that the case against Mst. Bachan Kanwar was dismissed by the trial court on a preliminary point and since this Court has remanded the case for decision on merits under Order 41, Rule 23 C. P. C., Section 13 of the Court-fees Act comes to the aid of the plaintiffs and they are entitled to claim refund of the court-fees.