# Smt. Urmila Devi Varshney v. Garima Varshney & Ors

- **Citation:** (2023) 6 ILRA 315
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-17
- **Case number:** In Re. Civil Misc. Recall Application No. 2 of 2022
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-urmila-devi-varshney-v-garima-varshney-ors-49239
- **Pages:** 6

## Headnote

(A) Constitution of India - Article 227 - The
Code of Civil Procedure, 1908 - Order VII
Rule II (b) & (c) ,The Court Fees Act, 1870 -
Sections 6A (2), 7(iv-A) ,17(iii) of Schedule
II , Section 6A(1) - Appeal against order to
pay court fee - Any person called upon to
make good a 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.(Para -10)

Recall of final order - issues of undervaluation
and proper court fee payable - petition seeking
to expedite hearing of temporary injunction
matter - plea to postpone determination of the
temporary injunction application - until issue of
undervaluation and proper court fee payable are
decided. (Para -11, 13)

HELD:- Remedy of appeal available against
decisions on the issues of proper court fee
payable under Section 6A of the Act of
1870.(Para -13)

Recall application rejected. (E-7)

List of Cases cited:

## Text

6 All. Smt. Urmila Devi Varshney Vs. Garima Varshney & Ors.
315
could not search out the fact, which is to be
amended in written statement. Therefore,
the condition of due diligence could not be
satisfied. Law is very much settled that
change of counsel cannot be a ground for
filing
amendment.
Therefore,
no
interference is required in the impugned
order dated 11.04.2023.

21. Accordingly, petition lacks merit
and is dismissed. No order as to costs.
----------
(2023) 6 ILRA 315
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

In Re. Civil Misc. Recall Application No. 2 of
2022
In
Matters Under Article 227 No. 7723 of 2021

Smt. Urmila Devi Varshney ...Petitioner
Versus
Garima Varshney & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rakesh Kumar Singh, Sri Krishnaji Khare

Counsel for the Respondent:
Sri Utkarsh Birla

(A) Constitution of India - Article 227 - The
Code of Civil Procedure, 1908 - Order VII
Rule II (b) & (c) ,The Court Fees Act, 1870 -
Sections 6A (2), 7(iv-A) ,17(iii) of Schedule
II , Section 6A(1) - Appeal against order to
pay court fee - Any person called upon to
make good a 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.(Para -10)

Recall of final order - issues of undervaluation
and proper court fee payable - petition seeking
to expedite hearing of temporary injunction
matter - plea to postpone determination of the
temporary injunction application - until issue of
undervaluation and proper court fee payable are
decided. (Para -11, 13)

HELD:- Remedy of appeal available against
decisions on the issues of proper court fee
payable under Section 6A of the Act of
1870.(Para -13)

Recall application rejected. (E-7)

List of Cases cited:

1. Arun Kumar Tiwari Vs Smt. Deepa Sharma &
ors. , 2006 SCC Online All 1979

2. Ajay Tiwari Vs Hriday Ram Tiwari & ors. ,
2006 SCC Online All 701

3. Pratap Narayan & anr. Vs Sudhir Kumar Sinha
& ors., 2017 SCC Online All 3212

(Delivered by Hon'ble J.J. Munir, J.)

1. 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
316 INDIAN LAW REPORTS ALLAHABAD SERIES
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
which has been followed by another
Division Bench of this Court in Ajay
Tiwari v. Hriday Ram Tiwari and
others.

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
6 All. Smt. Urmila Devi Varshney Vs. Garima Varshney & Ors.
317
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 subsection (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 exfacie 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
318 INDIAN LAW REPORTS ALLAHABAD SERIES
others. 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, subsection (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.
6 All. Smt. Urmila Devi Varshney Vs. Garima Varshney & Ors.
319
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
320 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
----------
(2023) 6 ILRA 320
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.05.2023

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Crl. Misc. Bail Application No. 52553 of 2022

Jaiveer ...Applicant (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Yashpal Yadav, Sri Lalji Yadav, Sri
Manish Tiwary (Sr. Advocate)

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 161,164 & 439
- Bail - Indian Penal Code, 1860 - Sections
376 - Rape, The Protection of Children
from Sexual Offences Act, 2012 - Sections
2(1)d , 3/4 & 29 - every person has a
different way of expressing their words
and feelings in their local language -
statement of victim under Section 164
Cr.P.C. will certainly prevail over her
statement recorded by doctor or police
officer under Section 161 Cr.P.C. - In order
to constitute an offence of rape, it is not
necessary that there should be complete
penetration of penis in the vagina or
mouth with emission of semen. (Para - 6)

Victim is minor girl - applicant aged about 24
years - Case of penetration by penis in mouth of
victim - statement of victim under Section 161
Cr.P.C. - recorded by audio and video means -
committed wrong by mouth or in her mouth -
what victim says is same in all three statements
- statement of victim under Section 164 Cr.P.C.
- applicant put his penis in her mouth - cannot
said to be material improvement - rather it
reinforces her initial version - word used by
victim " Galat kaam kiya" denotes the sexual act
in common parlance. (Para - 5, 6)

HELD:-Offence of rape made out. Act of
accused-applicant comes under the preview of
Section 375 (a) of I.P.C.. No material on record
to presume the false implication of the applicant
and to disbelieve the statement of minor victim,
which is primary for considering the bail
application of accused in rape cases. (Para - 6)

Bail application rejected. (E-7)

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1. By means of this application under
Section 439 of Cr.P.C., applicant, who is
involved in Case Crime No. 587 of 2022,
under Sections 376 of I.P.C. & Section 3/4
of the Protection of Children from Sexual
Offences Act, 2012, Police Station- Tilahar
District- Shahjahanpur, seeks enlargement
on bail during the pendency of trial.

2. Heard Shri Manish Tiwary, learned
Senior Counsel for the applicant and Shri
Rabindra Kumar Singh, learned Additional
Government Advocate representing the
State.

3. As per the prosecution case in
brief, informant who is father of the victim
lodged
First
Information
Report
on
07.8.2022 against the applicant-Jaiveer
alleging inter alia that on 07.08.2022 at
about 1:00 pm, his daughter aged about 1415 years had gone to attend the call of
nature in the sugarcane field of Rajesh,
where the accused-applicant with intention