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Allahabad High Court tells petitioner to approach Civil Judge over insufficient court fees

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The Allahabad High Court has rejected a petition, while observing that the objections about undervaluation or insufficient court fees cannot be raised, until an irremediable mischief is done.

A Single Bench of Justice J.J Munir passed this order, while hearing a petition filed by Urmila Devi Varshney.

The recall application has been made on behalf of Garima Varshney, respondent no 1 in Matters under Article 227, seeking recall of court final order dated January 21, 2022.

By the said order, the Court had directed the Civil Judge (Junior Division), Kasganj to decide the pending temporary injunction application in Original Suit, 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 the next 15 days.

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.

Now, taking advantage 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.

It is the applicant’s case that she moved an application bearing Paper 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 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 the 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.

It is argued by Utkarsh Birla, Counsel in support of the 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.

It is argued further by Birla that the suit here is one seeking to declare a sale deed void, where Section 7(iv-A) of the Court Fees Act, 1870 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.

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, Counsel for the applicant has pressed in aid the principles adumbrated in the decision of the Division Bench in Ajay Tiwari.

Rakesh Kumar Singh, 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 the opinion of the Court, the remarks of my esteemed Brother Manoj Misra in Pratap Narayan (supra) are a complete answer to the point urged by 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, 1908 take adequate care of the interests of the revenue, should the plaintiff indulge in undervaluation or avoidance of proper court fee payable.

The Court said that,

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 the Court in Pratap Narayan do not need reiteration, which, in the opinion of the Court, reconcile the principle in Arun Kumar Tiwari (supra) with the requirements of urgent consideration of the temporary injunction matter, particularly where the Trial Court is a Court of unlimited pecuniary jurisdiction.

In the 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 plaintiff has been registered on payment of court fee, without any objection by the officers empowered on his 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 (supra). 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 Counsel for the applicant suggests.

“To the submission of the 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 the Court is not minded to succumb to the temptation, which the 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 UP.

Any determination made in the 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 the Court.

In the circumstances, the Court does not find any merit in the application”, the Court observed while rejecting the petition.

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