Kumari Aneesha Verma Alias ... vs Ram Shakal
2023 Latest Caselaw 719 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 1
 

 
Case :- FIRST APPEAL No. - 89 of 2022
 

 
Appellant :- Kumari Aneesha Verma Alias Aneesha Verma
 
Respondent :- Ram Shakal
 
Counsel for Appellant :- Durga Prasad
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Jaspreet Singh,J.

Heard Shri Durga Prasad, learned counsel for the appellant.

The record indicates that notice was issued to the respondent by means of order dated 10.10.2022 and as per office report dated 25.11.2022, notice was personally served on the respondent and was found sufficient but none has put in appearance on behalf of the respondent and in the aforesaid backdrop the Court has proceeded to hear the learned counsel for the appellant.

The instant appeal has been preferred under Section 19 of the Family Courts Act, 1984 against the judgment and order dated 29.08.2022 passed by the Principal Judge, Family Court, Ambedkar Nagar in case No.650 of 2017 (Kumari Aneesha Verma Vs. Ram Shakal) on proceedings initiated under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956 whereby the Principal Judge, Family Court Ambedkar Nagar rejected the petition under Order VII Rule 11 CPC.

Submission of the learned counsel for the appellant is that the order impugned is bad in the eyes of law as without providing or affording any opportunity to correct the valuation or to furnish the deficit court fee the petition has been dismissed under Order VII Rule 11 CPC which is an erroneous exercise of jurisdiction.

It is further urged that the issue of valuation or deficit court fee was not raised at the first instance. It is only at the stage of final argument that the court discovered that the petition was not properly valued.

It is further urged that even if at all the Court found that the petition was under valued or the court fee was deficient. Then, there ought to have been an adjudication regarding both issues i.e. with respect to valuation and the deficiency in court fee and after having arrived at such conclusion the appellant ought to have been granted an opportunity to amend the valuation and make good the deficiency in court fee as determined by the court and in case if the appellant failed to do so, only then the petition could have been dismissed but no such adjudication was made and in the aforesaid circumstances the order impugned is bad in the eyes of law.

The Court has considered the submissions and also perused the material on record.

Apparently, the appellant had moved an application under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956 seeking maintenance against her father.

The record further indicates that the respondent had filed a written statement/objections. However, no such objection regarding inadequate valuation or deficit court fee was taken. Moreover, even while registering the case the Munsarim of the Court had not reported any deficiency or in the court fee. It is only after the parties had concluded their evidence and the matter was fixed for final hearing that the court required the appellant to address on the issue regarding insufficiency of court fee and valuation.

In the aforesaid backdrop, if the impugned order is seen, it would indicate that the court has merely recorded that both the parties have submitted their views but there is no adjudication whatsoever regarding the valuation or the deficiency in the court fee. Even assuming, if neither of the parties could satisfy the court regarding the valuation or the deficiency in court fee even then, it was the duty of the court concerned to have examined the matter in accordance with provisions contained in the Suits Valuation Act 1887 as well as the Court Fee Act, 1870.

The impugned order does not reflect that what was the submissions made by the parties. It also does not reflect that what finding has been arrived at by the court on both aspects i.e. valuation and the deficiency in court fee.

It appears that the court has merely taken note of the submission of the appellant that the matter may be treated as a suit by an indigent person. However, the trial court found that since this aspect of the matter had to be seen at the pre-trial stage and not at the time of final hearing, hence the application of the appellant seeking such a prayer was rejected and the court by invoking the powers under Order VII Rule 11 CPC rejected the petition.

The manner in which the impugned order has been passed does not indicate the adherence to the provision of Order VII Rule 11 CPC. It is now well settled that for rejecting the plaint under Order VII Rule 11 CPC, it is only the plaint averments alone which have to be seen.

There is nothing on record to indicate that the court arrived at any finding as to what would be the proper valuation and what would be the appropriate court fee and how the plaint/petition was wanting in such contents.

From the bare perusal of the provisions contained in Order VII Rule 11 CPC, it would indicate that in so far as the provision of Order VII Rule 11 CPC (b) (c) is concerned, the same is to be seen in context with the proviso appended to the said provision. For clarity Order VII Rule 11 CPC is being reproduced herein after:-

"11. Rejection of plaint:- The plaint shall be rejected in the following cases:-

(a) Where it does not disclose a cause of action;

(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) Where the suit appears from the statement in the plaint to be barred by any law;

(e) Where it is not filed in duplicate;

(f) Where the plaintiff fails to comply with the provisions of Rule 9;

[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]

Having taken note of the aforesaid, this Court is of the clear view that the impugned order cannot be sustained and is liable to be set aside for the reason that there is no adjudication on the issue of proper valuation and appropriate court fee and in absence thereof, it cannot be said that the petition was either under valued or there was deficiency in court fee coupled with the fact that this issue was not raised by the respondent in the written statement and even otherwise if at all there was any deficiency or under valuation the appellant ought to have been granted time to rectify the same and having failed to do so only then the court could have exercised its powers under Order VII Rule 11 CPC.

In view of the aforesaid, the impugned order dated 29.08.2022 passed by the Principal Judge, Family Court, Ambedkar Nagar in case No.650 of 2017 is set aside. The matter shall stand remitted to the court concerned who shall after affording full opportunity of hearing to the parties and by recording the finding on the issue of both valuation as well as appropriate court fee and if found wanting and deficient shall require the appellant to rectify the valuation and furnish the deficient court fee only, if such finding is arrived at and thereafter decide the matter on merits expeditiously.

With the aforesaid, the appeal is allowed. The impugned order dated 29.08.2022 shall stand set aside. The parties shall appear before the Principal Judge, Family Court, Ambedkar Nagar on 30th of January, 2023 for proceedings in accordance with law and in light of observations made in this judgment. Costs are made easy.

(Jaspreet Singh, J) (Ramesh Sinha, J)

Order Date :- 9.1.2023

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