One last question if you can answer to me I will be really thankful to you..
While deciding the IA about the insufficient court fee issue in 2015, court has passed and order rejecting my IA with the conclusion that:
"The pleadings of the plaint indicate that the plaintiff has maintained this suit for partition and for other reliefs on the ground that the schedule properties are the joint family properties of her and defendants No.1 to 9. It is the case of the plaintiff that the schedule properties are the properties purchased by her grand father, therefor court fee paid under section 35(2) is correct"
This earlier order on the court fee was not challenged by plaintiff in HC means order of city civil court is final. She has only choose to challenge the order of second IA which was filed based on supreme court judgement of Prakash v/s Phulavati, where the plaint was dismissed on the same ground.
You can say on two occasions different judges of the city civil court (Since the judge was changed while deciding the second IA) reached to the same conclusion. in first, court has rejected the IA and said that court fee is sufficient and in second IA was accepted and the court has rejected the plaint based on supreme court order relates to Hindu Succession act taking the same stand as it was taken in first IA and since father was not alive as on 09/09/2015 daughter do not get the right.
Now if let us say HC consider that the properties are self-acquired properties and set aside the order of the city civil court of second IA obviously negate the earlier order of Court fee which is on the same ground.
in case of BS_Malleshappa_vs_Koratagere_B_Shivalingappa_and_others HC of Karnataka laid down the principle
"If the plaintiff claims that he is in joint possession of a property and seeks partition and separate possession, he categorises the suit under Section 35(2) of the Act. He is therefore liable to pay Court fee only under Section 35(2). If on evidence, it is found that he was not in joint possession, the consequence is that the relief may be refused in regard to such property or the suit may be dismissed. But the question of Court treating the suit as one falling under Section 35(1) of the Act and directing the plaintiff to pay the Court fee under Section 35(1) of the Act does not arise. Even after written statement and evidence (which may demonstrate absence of possession or joint possession), if the plaintiff chooses not to amend the plaint to bring the suit under Section 35(1) and pay Court fee applicable thereto, he takes the chance of suit getting dismissed or relief being denied"
In such situation, case must be automatically rejected. Is that right?