Allahabad High Court
Urmila Devi Varshney vs Garima Varshney And 4 Others on 17 September, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Court No. - 6 IN RE. CIVIL MISC. RECALL APPLICATION NO. 2 OF 2022 In Case :- MATTERS UNDER ARTICLE 227 No. - 7723 of 2021 Petitioner :- Urmila Devi Varshney Respondent :- Garima Varshney and others Counsel for Petitioner :- Rakesh Kumar Singh,Krishnaji Khare Counsel for Respondent :- Utkarsh Birla Hon'ble J.J. Munir,J.
This recall application has been made on behalf of Smt. Garima Varshney, respondent no. 1 in Matters under Article 227 No. 7723 of 2021, seeking recall of my final order dated 21.01.2022. By the said order, I had directed the Civil Judge (Junior Division), Kasganj to decide the pending temporary injunction application in Original Suit No. 92 of 2021, Urmila Devi Varshney v. Garima Varshney and others, positively on the next date fixed, after hearing all parties to the suit. It was further ordered that in the event, for some reason, the temporary injunction application cannot be decided on the next date fixed, it shall be disposed of within fifteen days next.
2. Since the said order was passed without issuing notice to the private respondents, which was a course of action adopted because no rights by this Court inter partes were decided, it was thought wise to leave it open to the private respondents, who might feel aggrieved by the said order, to make an application in the decided petition.
3. Now, taking benefit of the opportunity granted, the respondent no. 1 to the petition under Article 227 of the Constitution, has made this application, asking for recall of the order dated 21.01.2022. The applicant seeks recall of the order primarily on the ground that the petitioner, who is a defendant to the suit, has, amongst other pleas, raised an objection about the suit to be grossly undervalued and the court fee paid insufficient. The Trial Court, however, without noticing the said plea at the preliminary stage, has proceeded with the suit and not yet framed an issue with regard to undervaluation or deficient court fee. A copy of the written statement filed in the suit on behalf of the applicant has been annexed to the recall application as Annexure No. 3.
4. It is the applicant's case that she moved an application bearing Paper No. 60 C2, dated 23.02.2022, with a prayer that prior to hearing and orders on the temporary injunction application, the Court ought to afford the applicant an opportunity to address on the issues of undervaluation of the suit and deficient court fee. It is pointed out that this application made by the applicant has been rejected by learned Civil Judge (Senior Division) Kasganj before whom the suit is pending vide order dated 11.03.2022, because of the orders passed by the Court on 21.01.2022 expediting the hearing of the temporary injunction matter.
5. It is argued by Mr. Utkarsh Birla, learned Counsel in support of this application that the issues of valuation and sufficiency of court fee affect the jurisdiction of the Trial Court and the maintainability of the suit. The proper course of action is to decide these issues first and then hear the interim injunction application and other matters. In support of his submission, Mr. Birla has placed reliance upon a decision of the Division Bench of this Court in Arun Kumar Tiwari v. Smt. Deepa Sharma and others1 which has been followed by another Division Bench of this Court in Ajay Tiwari v. Hriday Ram Tiwari and others2.
6. In Arun Kumar Tiwari (supra) it was held by the Division Bench :
11. Without expressing any final opinion on these points, we are of the view that whenever a serious challenge is made to the jurisdiction of the Court as well as to the valuation of the suit and sufficiency of the Court fee or to the maintainability of the suit, then if there appears prima facie some substance in those pleas, the proper procedure for the Court is to first decide these issues and then to decide the injunction application and other matters. It is also necessary in view of the spirit of provisions of section 6-A (2) of the Court Fees Act which provides that where it is found that the Court fee paid is insufficient, the injunction order shall be discharged if the deficiency is not made good in accordance with the order of the Court, even if an appeal has been filed against that order. The learned Addl. Civil Judge has observed in the impugned order that the preliminary issues could not be decided before hearing of the injunction because other defendants had not put in appearance so far. His above approach is not proper. Every defendant has got a right to get the suit decided on the preliminary points at the initial stage without waiting for arrival of other defendants. In the present suit the injunction was sought against defendant No. 5 only and not against other defendants and so defendant No. 5 had a right to raise the above preliminary points and to pray the Court to record findings on those points before proceeding further in the suit. The approach adopted by the learned Addl. Civil Judge (Senior Division) was totally erroneous in this regard. The proper course for him was to decide the preliminary issues first and, then the injunction application. .......
7. In Ajai Tiwari (supra), another Division Bench of this Court, in the context of a suit where similar issues were involved, held :
12. The learned counsel for the plaintiff/appellant faintly argued that it is not open for the defendants/respondents to take any objection with regard to the inadequacy or deficiency in payment of Court fees. The above submission has no merits as the question of deficiency or payment of proper amount of Court fees can also be raised otherwise than by the officers of the State or the Revenue. Section 6(4) of the Act stipulates that whenever a question of proper amount of Court fees payable is raised otherwise than under sub-section (3) of Section 6 i.e. by person other than the officers mentioned in Section 24-A of the Act, the Court shall decide such question before proceedings with any other issue. Thus the Court is empowered to decide the question of payment of proper amount of Court fees even if it has not been raised by the officers of the State or Revenue. Therefore, the submission has no force and is not acceptable more particularly as the same was not even raised in the Court below.
8. It is argued further by Mr. Birla that the suit here is one seeking to declare a sale deed void, where Section 7(iv-A) of the Court Fees Act, 18703 is attracted, by virtue of which, ad valorem court fee would be payable. It is not a case to which Article 17(iii) of Schedule II of the Act of 1870 would apply. Thus, a fixed court fee of ₹700/- could not be paid. It is his submission that the court fee paid is ex-facie insufficient and therefore, before proceeding to hear the temporary injunction application, the issue of valuation and sufficiency of court fee ought to be decided.
9. For the legal position that it is a suit where ad valorem court fee would be payable under Section 7(iv-A) of Schedule II of the Act of 1870 and not Section 17(iii) of the Second Schedule of that Act, learned Counsel for the applicant has pressed in aid the principles adumbrated in the decision of the Division Bench in Ajay Tiwari.
10. Mr. Rakesh Kumar Singh, learned Counsel, on the other hand, has been at pains to submit that consideration of the temporary injunction matter is not the stage at which the Court ought to consider the issue of valuation of the suit or sufficiency of court fee. If that were to happen, the defendant may raise an objection about the suit being undervalued and the court fees paid insufficient and stall hearing of the temporary injunction application to the prejudice of the plaintiff. In support of the submission, Mr. Singh has placed reliance upon a later decision of a learned Single Judge of this Court in Pratap Narayan and another v. Sudhir Kumar Sinha and others4. In Pratap Narayan (supra) it has been held by the learned Judge :
6. This Court is of the view that deciding an issue in suit is different from deciding an application seeking temporary relief such as interim injunction. Sub section (2) of section 6-A of the Court Fees Act, as applicable in the State of U.P., indicates that the legislature did contemplate grant of an interim order even before adjudication on the issue as regards sufficiency of Court fee, inasmuch as, sub-section (2) of section 6-A of the Court Fees Act, 1870 provides that in case an appeal is filed under subsection (1) of section 6-A, and the plaintiff does not make good the deficiency, all proceedings in the suit shall be stayed and all interim orders made, including an order granting an injunction or appointing receiver, shall be discharged. Sub section (1) of section 6-A provides that any person called upon to make good the deficiency in Court fee may appeal against such order as if it were an order appealable under section 104 of the Code of Civil Procedure. conspectus of the aforesaid provisions would go to show that in case where the plaintiff is directed to make good the deficiency in Court fee,' he may appeal against the said order and in the event he files an appeal against the said order, without depositing the Court fee directed to be deposited by the order under appeal, all proceedings in the suit would be, stayed and all interim orders made, including an order granting an injunction or appointing receiver, shall stand discharged. The legislature therefore envisaged situation where the Court granted an interim relief before deciding the issue pertaining to valuation and sufficiency of Court fee. Such view also subserves the interest of justice because otherwise it would be open to the defendant to thwart grant or an urgent interim relief by setting up bogus claim of insufficient valuation as well as Court fee paid. The above view would not harm the interest of Revenue because, if the Court comes to conclusion that the suit is under valued or that the Court fee paid is insufficient, it can direct the plaintiff to deposit such Court fee and in case Court fee, as directed by the Court, is not deposited, the plaint can be rejected under Order VII, Rule 11 (b) (c) of the Code. In the event the plaintiff challenges the order, without depositing the deficient Court fee, the interim injunction would stand discharged. Thus, there is sufficient safeguard to protect the interest of Revenue even by not stopping consideration of interim injunction prayer. This Court is therefore of the considered view that there is no bar on the power of the Court below to consider the interim prayer without first deciding the issue pertaining to valuation and sufficiency of Court fee. Although it is advisable for the Court to exercise its wisdom and ascertain whether the objection raised in Respect of valuation of the suit or in respect of payment of Court fee has, prima facie, substance or not and if it finds that there is substance in the objection, then keeping in mind the law laid down by the Division Bench of this Court in Arun Kumar Tiwari case (supra), it can defer consideration of interim injunction application till adjudication on the issues regarding valuation and payment of Court fee, particularly, in case, where, if the suit is properly valued, it would go beyond the pecuniary jurisdiction of the Court where it has been instituted. But such is not the case here inasmuch as the Court of Civil Judge (Sr. Div.) is a Court of unlimited pecuniary jurisdiction. The view taken above finds support from decision of this Court rendered in Umesh Chandra and others v. Krishna Murari Lal, AIR 1980 Alld. 29, which is not in conflict with Division Bench decision of this Court in Arun Kumar Tiwari (supra).
11. In the opinion of this Court, the remarks of my esteemed Brother Manoj Misra in Pratap Narayan are a complete answer to the point urged by Mr. Birla in aid of his plea to postpone determination of the temporary injunction application until the issue of undervaluation and proper court fee payable are decided. The provision of sub-Section (2) of Section 6A of the Act of 1870 as applicable in the State of U.P. read with Order VII Rule II (b) & (c) of the Code of Civil Procedure, 19085 take adequate care of the interests of the revenue, should the plaintiff indulge in undervaluation or avoidance of proper court fee payable. The legislative scheme of the Act of 1870 as applicable in the State of U.P. and the Code together are designed to advance the cause of substantial justice on the one hand, and protection of the interest of the revenue on the other. It would indeed lead to grave injustice if the defendant were permitted to raise objections about undervaluation or insufficient court fees and stall consideration of the temporary injunction application until time that irremediable mischief is done. The remarks of this Court in Pratap Narayan do not need reiteration, which, in the opinion of this Court, reconcile the principle in Arun Kumar Tiwari with the requirements of urgent consideration of the temporary injunction matter, particularly where the Trial Court is a Court of unlimited pecuniary jurisdiction.
12. In the present case also, the Trial Court is the Civil Judge (Senior Division) of the district and therefore, a Court of unlimited pecuniary jurisdiction. This is a case where the plaint has been registered on payment of court fee, without any objection by the officers empowered in this behalf. It is true that even if an objection about court fee payable is raised, otherwise than under sub-Section (3) of Section 6, that is to say, by an officer envisaged under Section 24A of the Act of 1870, the Court is obliged to decide such question before deciding any other issue. This is the opinion clearly expressed by the Division Bench in Ajay Tiwari. But, Ajay Tiwari does not hold that pending decision about the proper court fee payable, upon objection of the defendant, consideration of the temporary injunction matter must be adjourned. That is not the principle in Ajay Tiwari, as the learned Counsel for the applicant suggests.
13. To the submission of the learned Counsel for the applicant that the suit here is one where the court fee paid is clearly insufficient, in view of holding of the Division Bench in Ajay Tiwari, once reliefs claimed are considered, it must be said that this Court is not minded to succumb to the temptation, which the learned Counsel for the applicant presents. It is for the reason that the issues of undervaluation and the proper court fee payable are engaging the attention of the Trial Court and from the decision of the Trial Court on the issues of proper court fee payable, there is an appeal envisaged under Section 6A of the Act of 1870, as amended in its application to the State of U.P. Any determination made in the present petition under Article 227 of the Constitution, which is no more than a petition seeking to expedite the hearing of the temporary injunction matter, would be the most anomalous exercise of jurisdiction; one that is completely beyond the scope and office of the petition before this Court.
14. This Court must place on record our appreciation for the very able assistance on the subtle point of law involved, by Mr. Utkarsh Birla and Mr. Rakesh Kumar Singh, learned Counsel for the parties.
15. In the circumstances, this Court does not find any merit in the application. It, accordingly, stands rejected.
Order Date :- September the 17th, 2022 I. Batabyal (J.J. Munir, J.) **********