Whether court can consider defence plea of insufficiency of court fees while deciding application for rejection of plaint?

The court shall begin with an assumption, for the

purpose of determining the court-fees payable on the plaint that

the averments made therein by the plaintiff are correct. The

defence taken in the written statement may not be relevant for

the purpose of deciding the payment of the court-fee by the

plaintiff.

Reportable

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR

S.B. Civil Writ Petition No. 8973 of 2014

 Jagdish Sahu Vs  Sonu Sampatram

 Dated: 31/01/2017

 Coram: MR. JUSTICE DINESH CHANDRA SOMANI

Citation: AIR 2017 Raj 46

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When plaintiff can not be nonsuited saying that suit is barred by limitation?

 It is, therefore, obvious that when the suit is based on title
for possession, once the title is established on the basis of
relevant documents and other evidence unless the defendant
proves adverse possession for the prescriptive period, the plaintiff
cannot be nonsuited.
Unfortunately, this aspect of the matter
was missed by the learned Judge and, therefore, the entire
reasoning for disposing of the second appeal has got vitiated.
Only on that short ground and without expressing any opinion
on the merits of the question of law framed by the learned Judge
for disposing of the second appeal, this appeal is allowed. The
impugned decision rendered is set aside and the second appeal is
restored to the file of the High Court with a request to proceed
further with the hearing of the appeal with respect to the
substantial question aforementioned in accordance with law. No
costs.”
 The said view has been further followed in the case of M. Durai
Vs. Muthu and Ors. (2007) 3 SCC 114 and I quote paragraph 7
therefrom.
“7. The change in the position in law as regards the burden of
proof as was obtaining in the Limitation Act, 1908 visavis
the
Limitation Act, 1963 is evident. Whereas in terms of Articles 142
and 144 of the old Limitation Act, the Plaintiff was bound to prove
his title as also possession within twelve years preceding the date of
institution of the suit under the Limitation Act, 1963, once the
Plaintiff proves his title, the burden shifts to the Defendant to
establish that he has perfected his title by adverse possession.”

The question framed by me therefore, is no more resintegra
in
the light of the pronouncement made by the Supreme Court as above.
In the light of the above, therefore, I must answer question No.2 in the
affirmative and hold that the suit was well within limitation and was
not barred by limitation. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
SECOND APPEAL NO.625 OF 2013
WITH
CIVIL APPLICATION NO.1474 OF 2013
Dhondyabai @ Laxmibai Rajaram Kale
Since deceased through legal heirs … Appellants
V/s.
Keda Devman Dore
Since deceased through legal heirs … Respondents

CORAM: A. B. CHAUDHARI, J.
DATED : SEPTEMBER 29, 2014
Citation;2015(2) ALLMR881

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