Allahabad High Court
Pratap Narayan And Another vs Sri Sudhir Kumar Sinha And 2 Others on 31 January, 2017
Equivalent citations: AIR 2018 (NOC) 211 (ALL.), 2017 (6) ALJ 471
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 2 Case :- MATTERS UNDER ARTICLE 227 No. - 549 of 2017 Petitioner :- Pratap Narayan And Another Respondent :- Sri Sudhir Kumar Sinha And 2 Others Counsel for Petitioner :- Dharm Vir Singh Hon'ble Manoj Misra,J.
Heard learned counsel for the petitioners.
Briefly stated the facts which could be elicited from the record are that the respondent no. 1 instituted O.S. No.516 of 2014 against the petitioners and others. In the said suit, an application for seeking temporary injunction was filed. In the meantime, the defendant filed objection/ written statement taking, inter alia, a plea that the suit was under valued and the Court fee paid was deficient. An application 59C2 was filed on behalf of the plaintiff that his prayer for temporary injunction be considered first and thereafter the issue in respect of valuation and payment of Court fee be decided. The said application 59C2 was rejected, vide order dated 15.7.2016, by the Civil Judge (SD), Etah and the case was directed to be listed for consideration of the issue pertaining to valuation and payment of Court fee. Against the order dated 15.7.2016, the plaintiff- respondents filed Revision no. 39 of 2016 which has been allowed by the District and Sessions Judge, Etah by order dated 30.8.2016. While allowing the civil revision, the revisional court held that there is no bar on consideration of the prayer for interim relief without deciding the issues pertaining to valuation and payment of Court fee. Accordingly, the court below was directed to dispose of the application relating to interim relief first and thereafter decide issues relating to valuation and Court fee as preliminary issues as per sub section (4) of section 6 of the Court Fees Act. It is this order dated 30.8.2016 which is impugned in the present petition.
The submission of learned counsel for the petitioners is that the court below has misinterpreted sub section (4) of section 6 of the Court Fees Act which provides that whenever a question of proper amount of Court fee payable is raised otherwise than under sub section (3), the court shall decide such question before proceeding with any other issue. It has been submitted that the mandate contained under sub section (4) of section 6 has been interpreted by a Division Bench of this Court in Arun Kumar Tiwari Vs. Smt. Deepa Sharma and others; 2006 (100) RD 427 wherein this Court has held that whenever a serious challenge is made to the jurisdiction of the Court as well as 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 has been submitted that in the instant case as issues with regard to insufficiency of Court fee and valuation of the suit were framed, the trial court was well within its jurisdiction in deferring consideration of the interim injunction application and directing hearing on the issues in respect of valuation of the suit and the Court fee paid thereon. Therefore, the revisional court committed manifest error of law by interfering with the order of the trial court.
I have given thoughtful consideration to the submission of learned counsel for the petitioners as also to the provisions of sub section (4) of section 6 of the Court Fees Act, 1870 and have also considered the decision cited by the learned counsel for the petitioners.
This Court is of the view that deciding an issue in a suit is different from deciding an application seeking temporary relief such as interim injunction. Sub section (2) of section 6A 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 6A of the Court Fees Act, 1870 provides that in case an appeal is filed under sub section (1) of section 6A, 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 a receiver, shall be discharged. Sub section (1) of section 6A 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. A conspectus of the aforesaid provisions would go to show that in a 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 a receiver, shall stand discharged. The legislature therefore envisaged a situation where the court granted an interim relief before deciding the issue pertaining to valuation and sufficiency of Court fee. Such a view also subserves the interest of justice because otherwise it would be open to the defendant to thwart grant of an urgent interim relief by setting up a 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 a 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's case (supra), it can defer consideration of interim injunction application till adjudication on the issues regarding valuation and payment of Court fee, particularly, in a 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 a decision of this Court rendered in Umesh Chandra and others Vs. Krishna Murari Lal, AIR 1980 Alld. 29, which is not in conflict with Division Bench decision of this Court in Arun Kumar Tiwari (supra).
In the instant case, the court below found that no deficiency was marked by the office in respect of payment of court fee on the plaint and the suit was duly registered. The plea as regards insufficiency of Court fee and valuation was taken by the defendant. The trial court did not consider whether the plea as regards insufficient valuation as well as Court fee paid was a serious plea or not and whether prima facie the suit was undervalued and straight away deferred hearing on interim injunction application. Therefore, the order of the revisional court calls for no interference. It is expected that the court below would examine the matter in accordance with law.
With the aforesaid observations, the petition is disposed of.
Order Date :- 31.1.2017 Arvind