Sunita Agarwal, J. - (1.) Heard Shri B.D. Shukla, learned counsel for the petitioner. The present petition under Article 227 of the Constitution of India has been filed by the plaintiff of Original Suit No.2065 of 2011 (Smt Bimla Rani Kohli v. Ravindra Kumar Kohli and 2 Ors.) with the prayer for setting aside the judgment and order dated 10.4.2017 passed by the Additional District Judge, Court No.15, Kanpur Nagar in Civil Revision No.198 of 2015 (Smt. Bimla Rani Kohli v. Ravindra Kumar Kohli & 2 Ors.) and the order dated 18.8.2015 passed by the Additional Chief Metropolitan Magistrate, Court No.9, Kanpur Nagar.
(2.) The aforesaid suit was filed by Smt. Bimal Rani for declaration in her favour being sole owner of House No.111-A/89 Ashok Nagar, Kanpur Nagar on the basis of a registered will deed dated 19.4.2010. The defendant-respondent No.1 filed a counter claim on 11.5.2012 along with the written statement. On 24.8.2013, issues were framed both on the plaint and the counter claim. Issue Nos.4 and 5 on the plaint averments were related to valuation of the suit and Court fee paid by the plaintiff. Issue Nos.3 and 4 of the counter claim were also related to the valuation of the counter claim and Court fee. These issues were decided on the same day i.e. 24.8.2013 i.e. the date when issues were framed. It was held by the Court of Additional Chief Metropolitan Magistrate, Court No.9, Kanpur Nagar that the valuation of plaint and counter claim was correct and the Court fee paid thereon was sufficient.
(3.) In so far as the counter claim is concerned, it was recorded that no specific objection was taken by the plaintiff regarding insufficiency of Court fee. As per the Munserim report, the Court fee was correctly paid. It appears that an application dated 16/23.12.2014 was moved by the petitioner/plaintiff with the prayer that the valuation of counter claim was incorrect and insufficient Court fee had been paid thereon. A fresh report of Munserim may be called and the counter claim be rejected for deficiency of Court fee under Order VII Rule 11 of the Code of Civil Procedure, 1908. The said application was rejected vide order dated 18.8.2015 passed by the Court of Additional Chief Judicial Magistrate, Court No.9 with the categorical finding that there was no justification for recall of the order dated 24.8.2013 which was passed after giving opportunity of hearing to all concerned. After the preliminary issues were decided, having found the valuation sufficient, the suit had proceeded for evidence of the parties. In the meantime, various applications moved by the parties were decided after hearing them. At that late stage, after a period of one year four months, the application filed for recall of the order dated 24.8.2013 was nothing but an effort to delay the disposal of the suit.;