IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 WP(C).No. 24999 of 2008(A) -------------------------- OS.325/2008 of ADDL.SUB COURT, PALAKKAD .................... PETITIONER: PLAINTIFF -------------- ILLIYAS, S/O.MUHAMMED HANEEFA, METTUPALAYAM, KIZHAKKETHARA VILLAGE, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS: DEFENDANTS ----------------- 1. MEHABOOBA, W/O.MUHAMMED HANEEFA, METTUPALAYAM, KIZHAKKETHARA VILLAGE, KOLLENGODE, KOLLENGODE POST, CHITTUR TALUK, PALAKKAD DISTRICT. 2. K.MUHAMMED IBRAHIM, S/O.KHANI, CHIKKANAMPARA, KOLLENGODE, KOLLENGODE POST, CHITTUR TALUK, PALAKKAD DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.24999 of 2008 ------------------------------- Dated this the 21st August, 2008. J U D G M E N T Plaintiff in O.S.No.325 of 2008, on the file of Sub Court, Palakkad, is the petitioner. The suit was filed for declaration that the petitioner, first respondent and one Sara Umma are the legal heirs of deceased Muhammed Haneefa Rawther and also for partition of plaint A and B schedule properties and separation of 7/8 shares in plaint A schedule property and 7/10 shares in plaint B schedule property. After summons were issued, learned Sub Judge passed Ext.P3 order on 18.7.2008 directing petitioner to incorporate proper valuation of the suit. Ext.P3 order shows that said order was passed before respondents entered appearance. This petition is filed under Article 227 of the Constitution of India challenging Ext.P3 order. 2. As Ext.P3 order was passed before the respondents entered appearance and without hearing them, it is not necessary to issue notice to the respondents in the W.P.(C) No.24999 of 2008 2 application. 3. Under Ext.P3 order, learned Sub Judge found that question of correctness of the court fee is to be determined not on the form of the plaint, but its substance, and though a decree for setting aside the compromise decree in O.S.No.100 of 1987 was not sought for, in effect that is the relief, and, therefore, court fee is to be paid, as provided under Section 40 of the Court Fees and Suits Valuation Act. 4. Learned counsel appearing for the petitioner was heard. 5. The argument of the learned counsel is that in view of the specific bar provided under Rule 3A of Order XXIII of Code of Civil Procedure, petitioner is not entitled to seek a decree setting aside the compromise decree in O.S.No.100 of 1987 and compromise decree could only be set aside by the Court, which passed the decree, and petitioner has already filed an application, which is pending in that court, and learned Sub Judge is not W.P.(C) No.24999 of 2008 3 justified in holding that relief sought for in the suit in substance is to set aside the compromise decree. 6. There is force in the submission. Petitioner is contending that he is one of the legal heirs of deceased Muhammed Haneefa Rawther, apart from first and the second wife of Haneefa Rawther. Petitioner also sought a decree for partition and separation of his share. The question whether petitioner is entitled to get a share where a compromise decree subsists is to be decided in the suit. But it cannot be said that the relief sought for in the suit is in effect a prayer for setting aside the compromise decree, which is specifically barred under Rule 3A of Order XXIII of Code of Civil Procedure. Therefore, Ext.P3 order is quashed. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.