The main legal point established in the judgment is the importance of deciding the preliminary issues of undervaluation and proper court fee before proceeding with the injunction application and other matters.

JUDGMENT :

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 interpartes 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 others, 2006 SCC OnLine All 1979 which has been followed by another Division Bench of this Court in Ajay Tiwari v. Hriday Ram Tiwari and others, 2006 SCC OnLine All 701.

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 Judg