2006 Supreme(All) 471

[2006(2) ADJ 542 (All)(DB)]
ALLAHABAD HIGH COURT
(Division Bench)
BEFORE : YATINDRA SINGH AND R.K. RASTOGI, JJ.
ARUN KUMAR TIWARI ......Appellant
Versus
Smt. DEEPA SHARMA AND OTHERS ...Respondents
(First Appeal From Order No. 3481 of 2004,
decided on 15th February, 2006)

Headnote:`(A) Injunction—Grant of—Landlord and tenant—Registered will and sale-deed—Civil Judge held that plaintiffs-respondents-1 to 5, had a prima facie case for injunction and balance of convenience was also in their favour and they would suffer irreparable loss, if injunction was not granted and allowed injunction application—Appeal against, by defendants-appellants—It was not such a suit, in which plaintiffs-tenants would have simply sought injunction against defendant-landlord, to protect their tenancy rights only in disputed property, but they have also alleged that transfer-deed executed by defendant No. 1, in favour of defendant No. 5, was void, and have sought a declaration to that effect—However, they did not pay any Court fee on that relief—In suit against defendants by plaintiffs, that defendant No. 1, had no right to execute sale-deed, injunction was sought against defendant 5 only, and not against other defendants, and so, defendant 5 had a right to raise a preliminary objection/points, and to pray Court to record a finding on those points before proceeding further in suit—Civil Judge has not adopted procedure in that suit that preliminary issues to be decided first and then injunction application—Hence, impugned order passed by him on injunction application, was set aside—Matter remanded back to his Court, for fresh order on injunction application after making necessary compliance of provisions of law—Therefore, appeal allowed. [Civil Procedure Code, 1908—Order XXXIX, Rules 1, 2; Order XLI, Rules 13 and 14]. [Paras 10, 12, 16]

       (B) Court-fees Act, 1871—Sections 6-A (2) and 7(iv)(a)—Court fees—Particular relief sought by plaintiffs in a suit—Necessary for them to pay Court fees thereon—And prima facie, suit was not maintainable, without payment of Court fee, on that relief. [Para 10]

       (C) Injunction—Jurisdiction of Court—Payment of Court fees—Challenge made to jurisdiction of Court and valuation of original suit and sufficiency of Court fee, or to maintainability of suit, then if appears prima facie some substance in those pleas, proper procedure for Court was to first decide those issues—And then to decide injunction application and other matters—Moreover, under Section 6-A(2) of Court-fees Act, providing that where it was found that Court fee was insufficient, injunction order shall be discharged, if deficiency was not made good, in accordance with order of Court, even if an appeal has been filed against that order. [Court fees Act, 1871—Section 6-A(2)]. [Para 12]

       (D) Written arguments—Filing of, after close of arguments, but before delivery of judgments—Court had not asked any party to file written arguments—Nor respondents sought permission of Court to file that written arguments—No copy of written arguments were given to appellants by respondents—As such, written arguments, do not deserve to be considered. [Para 13]

       (E) Civil Procedure Code, 1908—Order XLI, Rule 11, Order XLI, Rule 13, Order XLI, Rule 14 and Order I, Rules 1, 3—Necessary parties—Injunction—Appeal against—Respondents, who were impleaded as defendants, in original suit (i.e. instant appeal was against Injunction Order by trial Court) have not put in appearance in that suit—As such, there was no necessity for service of notice of instant appeal, against grant of injunction by trial Court, upon them—Moreover, no relief can be claimed by plaintiffs-respondent against defendants-respondents in said suit and relief was sought against defendant 5-appellant, against whom injunction was granted by trial Court—That injunction was granted on application of plaintiffs-respondents, and aggrieved with injunction order, defendant-appellants filed instant appeal against injunction order, granted by trial Court—Controversy, regarding grant of injunction, can effectively be decided between present appellant-defendant 5, and respondents 1 to 5, and virtually defendants 1 to 4, were not necessary parties—Plaintiff, while seeking injunction to restrain defendant 5, from evicting them from disputed portion of house unnecessarily challenged transfer deed, executed by defendant No. 1, in favour of defendant 5, and also sought relief of its cancellation, without paying Court-fee thereon, simply to prolong hearing of suit, for unnecessary determination of title to property, amongst defendants inter se—And now, when defendant 5, against whom injunction was granted, filed instant appeal, they now want that that appeal would not be heard and decided on merits, unless defendants-respondent Nos. 6 to 9, were served—As appeal was heard on merits, giving full opportunity of hearing to appellant and plaintiffs-respondents 1 to 5, therefore, that appeal was disposed of by Court—Hence, impugned order granting injunction by trial Court, was set aside—And appeal was allowed—Matter remanded back to trial Court, for fresh order, on injunction application. [Paras 15 and 16]