JUDGMENT R.K. Rastogi, J.
1. This is an appeal against the order dated 24.11.2004, passed by Sri M.A. Abbasi, then learned Addl. Civil Judge (Senior Division), Allahabad in Original Suit No. 415 of 2003, Smt. Deepa Sharma and Ors. v. Smt. Raj Kumari Devi and Ors.
2. The facts giving rise to this appeal are that the plaintiff-respondent No. 1 to 5 filed original suit No. 415 of 2003 in the Court of the Civil Judge (Senior Division), Allahabad against the defendants No. 1 to 4 (respondents No. 6 to 9) and defendant No. 5 (appellant in the present appeal) with these allegations that about 32 years ago, two rooms on the first floor of house No. 296 (new number 383/96) situate at mohalla Mumfordganj, Allahabad, specified at the foot of the plaint, were let out to Basudeo Sharma, husband of the plaintiff No. 1, father of plaintiffs No. 2 to 4, and father-in-law of plaintiff No. 5, by late Rajendra Singh who was husband of defendant No. 1, father of the defendants No. 2 and 3 and uncle of defendant No. 4. The rent was Rs. 60 per month. Rajendra Singh was exclusive owner of the house. He executed a registered Will on 29.4.1986 in favour of defendants No. 1 to 4. He thereby created a life interest only in their favour and restrained them from transferring the house in any manner. Inspite of this bar, defendant No. 1, in collusion with defendant No. 5, sold this house to him vide a registered sale deed dated 28.4.2003. The defendant No. 1 had no right to execute the sale deed. The above sale deed is completely void, inoperative and ineffective. However, on the basis of that sale deed, defendant No. 3, who is an advocate, was pressurizing the plaintiffs to vacate the disputed rooms and on 30.7.2003, he tried to get the plaintiffs forcibly evicted. Hence, the plaintiffs filed this suit for permanent injunction to restrain defendant No. 5 from evicting the plaintiffs forcibly and illegally from the rooms in question. This relief was valued at Rs. 720 being the amount of annual rent as per plaint allegations. The plaintiffs also prayed for a declaratory decree to the effect that the sale deed dated 28.4.2003, executed by the defendant No. 1 in favour of defendant No. 5 be declared as illegal. Ineffective and inoperative. This relief was valued at Rs. 24,41,000. The plaintiffs also prayed for interim injunction to restrain defendant No. 5 from evicting them forcibly from the disputed rooms during pendency of the suit.
3. The defendant No. 5 contested the suit. He filed the written statement in which he stated that no allotment order was passed in favour of Basudeo Sharma, and so no valid tenancy could be created in his favour. He had forcibly occupied the rooms, and so no tenancy rights were inherited by plaintiffs No. 1 to 4. Plaintiff No. 5 Smt. Manjul Sharma could not be the heir of Basudeo Sharma as she is not a member of his family. The rate of rent is not Rs. 60 per month but Rs. 400 per month. There was no restriction in the Will upon sale of the property. Defendant No. 1 had the right to transfer the property and she validly executed the sale deed in favour of defendant No. 5 for valuable consideration of Rs. 15 lacs. None from the family of late Rajendra Singh objected to the sale at that time. The suit is undervalued. The plaintiffs had not paid any court fee for relief 'B'. The Court fee paid on the relief 'A' was also insufficient as the rate of rent was Rs. 400 per month. The plaintiffs were not residing in the disputed rooms. They were residing in a house in Govind Pur colony. Defendant No. 5 never pressurized the plaintiffs to vacate the house. The plaintiffs have illegally kept the disputed rooms locked and they have actually shifted from these rooms.
4. The defendant No. 5 also filed objection to the injunction application.
5. The learned Addl. Civil Judge after hearing the injunction application of the plaintiffs came to the conclusion that the plaintiffs had a prima facie case for injunction and the balance of convenience was also in their favour and they would suffer irreparable loss if injunction is not granted to them. He, therefore, allowed the injunction application. Regarding the pleas on the points of jurisdiction, undervaluation of the suit and insufficiency of court fee, he framed the following two preliminary issues on the basis of written statement of the defendant No. 5:
(i) Whether the suit is beyond jurisdiction of the Court?
(ii) Whether the suit was undervalued and the court fees paid was insufficient?
He also passed an order for hearing of these issues after service upon defendants No. 1 to 4.
6. Aggrieved with the injunction order, defendant No. 5 has filed this appeal.
7. We have heard the learned Counsel for the defendant-appellant and the plaintiff-respondents No. 1 to 5 at the admission stage on merits of the appeal with their consent and perused the file of this appeal.
8. The learned Counsel for the defendant-appellant made the following submissions:
(i) That the plaintiffs who simply claimed themselves to be tenants in two rooms of the house have got no cause of action for seeking relief 'B', which is for declaration to this effect that the sale deed executed by the defendant No. 1 in favour of defendant No. 5 is void.
(ii) That the plaintiffs had sought the relief 'B' for declaration valuing it at Rs. 24,41,000 but they had not paid any court fee thereon, and the suit without payment of court fee on the relief sought in the suit was not maintainable.
(iii) That the suit was bad for mis-joinder of causes of action and for multifariousness.
(iv) That when preliminary issues regarding jurisdiction of the court and regarding valuation and sufficiency of the court fees had been framed by the court, it was necessary for the court to have first decided those issues as preliminary issues, and then the injunction application should have been decided.
9. The learned Counsel for the plaintiffs-respondents No. 1 to 5 submitted in reply:
(i) that the plaintiffs are tenants in two rooms of the disputed house and so they have got a right to seek protection of their tenancy by way of seeking injunction, and as such the learned Addl. Civil Judge committed no legal error by granting the interim injunction in their favour;
(ii) that since the plaintiffs are not seeking anything for themselves in relief 'B', they have not paid any court fees for this relief;
(iii) that relevant preliminary Issues had already been framed on the basis of the pleas taken by the defendant No. 5, but the findings on those issues could be recorded only after service upon all the defendants, and so the learned Addl. Civil Judge did not decide those issues before disposal of the injunction application as defendants No. 1 to 4 had not been served;
(iv) that the plaintiffs had a prima facie case for injunction; and so the order passed by the learned Addl. Civil Judge on the injunction application does not suffer from any illegality and the appeal deserves to be dismissed.
10. After a careful consideration of the submissions made by both the parties, we are of the view that it is not such a suit in which the plaintiff tenants would have simply sought injunction against the defendant landlord to protect their tenancy rights only in the disputed property, but they have also alleged that the 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 this relief. When a particular relief is sought by the plaintiffs in a suit, it is necessary for them to pay court fees thereon, and prima Jade the suit is not maintainable without payment of court fee on that relief. The learned Counsel for the defendant appellant cited before us ruling of this Court in Anwarul Haq and Ors. v. 1st Addl. District Judge, Mau and Ors. 1998 (1) AWC 573 and in Smt. Veena Bahl (Dead) through L.Rs. and Anr. v. Vishnu Kumar and Ors. 2005 (61) ALR 853, in which it has been held that where the relief of injunction is consequential to the relief of declaration, the case is covered by Section 7(iv)(a) of the Court Fees Act and ad valorem court fee is to be paid on the entire valuation of the suit and Article 17 of Schedule II of the Court Fees Act would not be applicable. He contended that in view of these rulings, the plaintiffs should have paid court fee on the entire valuation of the suit property which was Rs. 24,41,000 as per plaintiffs' own allegations. He further contended that when the pleas of undervaluation and insufficient court fee had been taken and preliminary issues had been framed on this point, it was necessary for the Court to decide these issues before passing any order on the injunction application. A reference was also made to Section 6A(2) of the Court Fees Act which has been added by Section 5 of the U.P. Act 19 of 1938 and which runs as follows:
In case an appeal is filed under Sub-section (1), 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 a receiver, shall be discharged.
11. It was contended that in view of the spirit of the aforesaid provision it was very much necessary for the Court to have first decided the matter of court fees (when it had been raised) and then it should have considered the injunction application. It was further submitted that it is virtually a dummy suit which has been filed at the instance of previous owners of the house by the plaintiff tenants because otherwise there was no necessity for the plaintiff tenants to challenge the sale deed executed by defendant No. 1 in favour of defendant No. 5. He pointed out that no service could yet be effected upon the previous owners (defendants No. 1 to 4) inspite of the fact that the suit was filed in the year 2003 and the only purpose of the suit filed by the tenant is to raise the unnecessary dispute of ownership of the property among the defendants inter se so that the matter may not be considered and decided early and the plaintiff tenants may be able to continue in the disputed rooms for a long period. There appears some force in these contentions of the defendant-appellant.
12. 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 sprit of provisions of Section 6A(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 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. Since this procedure has not been adopted by the learned Addl. Civil Judge in the present suit, and the preliminary issues have not been decided first, we set aside the order passed by him on the injunction application and order that he shall first decide these preliminary issues No. 1 and 2 and shall also consider this aspect as to how the suit for relief 'B' is maintainable without paying court fees on that relief. After decision on these points and issues and after compliance of his directions on these points, he shall decide afresh the injunction application after hearing both the parties. The appeal in this way deserves to be allowed,
13. After close of the arguments but before delivery of Judgment written arguments were filed on behalf of respondents No. 1 to 5. We may at the very outset point out that Court had not asked any party to file written arguments. The respondents did not seek permission of the Court to file this written arguments nor any copy of the written arguments was given to the appellant. As such, the written arguments do not deserve to be considered. However, since they have been filed we have considered them also. It has been contended in the written arguments that at the stage of admission under Order XLI, Rule 11, C.P.C. the Court can simply dismiss the appeal but it cannot allow it without serving notice on the respondents and without sending notice to the lower court and the matter can be heard only after receipt of the lower court record and preparation of the paper book and since in this case respondents No. 6 to 9 have not put in appearance, the appeal cannot be allowed.
14. We do not agree with the above submissions of the respondents No. 1 to 5. Rule 13 of Order XLI, C.P.C. which requires notice to the lower court has been omitted by the C.P.C. Amendment Act, 1999.
15. So far as notice upon other respondent is concerned, Sub-rule (4) of Rule 14 of Order XLI of the Code of Civil Procedure reads as under:
Notwithstanding anything to the contrary contained in Sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the appellate court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal.
It is to be seen that in the present case the respondents No. 8 to 9 who were impleaded as defendants No. 1 to 4 in the original suit have not put in appearance in the suit, as such there is no necessity for service of notice of appeal upon them. It is also to be seen that no relief has been claimed by the plaintiff against the defendants No. 1 to 4 in the above suit and relief has been sought against the defendant No. 5 only against whom injunction was granted by the trial court. This injunction was granted on the application of the plaintiffs respondents No. 1 to 5 and aggrieved with the Injunction order defendant No. 5 filed the present appeal. The controversy regarding grant of injunction can be effectively decided between the present appellant and respondents No. 1 to 5, and virtually defendants No. 1 to 4 are not necessary parties. The plaintiff while seeking injunction to restrain defendant No. 3 from evicting them from the disputed portion of the house unnecessarily challenged the transfer deed executed by the defendant No, 1 in favour of defendant No. 5 and also sought relief of its cancellation without paying court fee thereon simply with a view to prolong the hearing of the suit by involving unnecessary issues for determination of title to the property amongst the defendants inter se and now when defendant No. 5 against whom injunction was granted filed this appeal they now want that this appeal should not be heard and decided on merits unless the defendant-respondents No. 6 to 9 are served. It may be mentioned that the suit was filed in the year 2003 and the plaintiffs have not yet been able to effect service upon the defendants No. 1 to 4. Now they cannot say that the appeal should not be heard on merits unless and until the defendant-respondents No. 6 to 9 are served. There Is no such requirement in view of Sub-rule (4) of Rule 14 of Order XLI, C.P.C. The appeal was heard on merits giving full opportunity of hearing to the appellant and the plaintiff-respondents No. 1 to 5, and we are proceeding to dispose of this appeal in the light of the observations made above.
16. The appeal is hereby allowed. The order dated 24.11.2004, passed by the learned Addl. Civil Judge (Senior Division), Allahabad in Civil Suit No. 415 of 2003 is set aside and the matter is remanded back to his Court for fresh order on the injunction application after making necessary compliance of the provisions of law as observed in the body of the judgment. Both the parties shall bear their own costs of this appeal.
17. The parties concerned shall appear in the court of the Addl. Civil Judge, Allahabad on 1.3.2006.