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2018 DIGILAW 142 (ALL)

BIMLA RANI KOHLI v. RAVINDRA KUMAR KOHLI

2018-01-12

SUNITA AGARWAL

body2018
JUDGMENT/ORDER : Sunita Agarwal, J. 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. 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. 4. The rejection order was challenged in revision which was dismissed vide order dated 10.4.2017. 5. Challenging these orders in the present petition, submission of learned counsel for the petitioner is that the counter claim is to be treated as a plaint and the petitioner contesting the same is entitled to raise objection regarding insufficiency of Court fee as it would make it liable for rejection being incompetent. The order dated 24.8.2013 was passed in absence of counsel of the plaintiff and without any Munserim report. No opportunity of hearing was provided to the petitioner/plaintiff. Even otherwise, the Will, of which cancellation has been sought by the defendant-respondent No. 1 by way of a counter claim is of the property worth crores and only Rs. 200/- had been paid as Court fee. In any case, for insufficiency of Court fee, it was not open for the Court to decide the issue in such a casual manner and without granting opportunity to the parties to lead evidence. 6. So far as the delay in filing recall application and the issues having been decided in the absence on 24.8.2013 are concerned, no exception could be taken by the learned counsel for the petitioner. 6. So far as the delay in filing recall application and the issues having been decided in the absence on 24.8.2013 are concerned, no exception could be taken by the learned counsel for the petitioner. Reference has been made to the Division Bench judgment of this Court in the case of Arun Kumar Tiwari v. Smt. Deepa Sharma and Ors., 2006 (1) RevDec 427, to state that it is the obligation of the Court to decide the issue of valuation of the suit and insufficiency of the Court fee first as a preliminary issue and then to decide all other matters, whenever a serious challenge is made to the jurisdiction of the Court as well as the maintainability of the suit. 7. There is no quarrel to the proposition laid down by the Division Bench as noted above. As per Section 7(iv-A) of the Court Fees Act, 1870 in a suit for cancellation of an instrument where a person or his predecessor entitled was not a party to the instrument, the Court fee according to 1/5th of the value of the subject matter shall be deemed to be the amount for which the instrument was executed. As per Explanation to Clause (iv-A) of Section 7, the value of the property for the purpose of the said sub-section shall be the market value which in the case of immovable property shall be deemed to be the value as computed in accordance with sub-sections (v), (v-A) or (v-B), as the case may be. The objections taken by the plaintiff is that the issue adjudging the Court fee has wrongly been decided ignoring the aforesaid provisions. 8. The valuation of the counter claim was accepted by the Court below on the ground that on 1/5th of the value of the property, the Court fee was paid by the defendant. The objection taken by the plaintiff regarding the valuation of the suit property being in crores is baseless inasmuch as she herself had valued the suit for Rs. 5 lakhs where the relief is for declaration on the basis of the Will i. e. the instrument of which cancellation has been sought by way of the counter claim. 9. Even otherwise, the order deciding the preliminary issue has been sought to be recalled after a period of more than one year. 5 lakhs where the relief is for declaration on the basis of the Will i. e. the instrument of which cancellation has been sought by way of the counter claim. 9. Even otherwise, the order deciding the preliminary issue has been sought to be recalled after a period of more than one year. After the decision on the preliminary issues, the suit had proceeded to the stage of evidence. This Court, therefore, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India is not inclined to interfere, at this stage. However, it would be open for the petitioner to challenge the findings on the preliminary issues in an appeal against the final decree, when occasion arises. 10. In view of the above, the present petition is found devoid of merits and hence dismissed.