Gauhati High Court
On The Death Of Mazid Ali (The Plaintiff) ... vs Sri Lakshman Rabidas And Ors. on 22 October, 1990
Equivalent citations: AIR1992GAU91, AIR 1992 GAUHATI 91, (1991) 2 GAU LR 258
JUDGMENT B.P. Saraf, J.
1. One of the interesting questions that arises for cosideration in this second appeal is whether a plaintiff having himself given a particular valuation of the suit in the plaint for the purpose of Court-fee and jurisdiction and having submitted to the jurisdiction of the Court, can be permitted, after the decision has gone against it, to challenge the jurisdiction of the Court on the ground that the suit was under-valued or that if proper valuation had been taken, the Court had no pecuniary jurisdiction.
2. The facts of the case, in brief, are as follows. The appellant, as plaintiff, filed a suit in the Court of the Munsiff, Silchar for cancellation of a khatian in respect of the suit land and for recovery of khas possession. The plaintiff valued the suit for the purpose of Court-fee and jurisdiction at the amount of annual rental only and paid a fixed Court-fee of Rs. 1.10 under Article 5 of Schedule II of the Court-fees Act. The Shirastadar of the Court put a note to the effect that the valuation of the suit was not proper as the Court-fee should have been paid on the market value of the land. The learned Munsiff heard the plaintiff on the objection put by the Shirastadar and on consideration of the arguments of the counsel for the plaintiff, held that the suit was governed by Section 7 of the Court-fees Act and, accordingly, allowed the plaintiff to put his own valuation for the purpose of court-fee and for pecuniary jurisdiction. He was also directed to pay ad valorem court-fee on such valuation. This was done by an elaborate order passed on 24-5-80. In compliance of the aforesaid order, the plaintiff amended the plaint and put the valuation for the purpose of Court-fee and jurisdiction at Rs. 150/-. This amendment was allowed by order dated 4-7-80 and thereafter the case proceeded for trial. The learned Munsiff tried the suit and on consideration of the facts and circumstances and the evidence on record dismissed the same on merits by judgment dated 10-12-81. The learned Munsiff held that the plaintiff totally failed to prove his case. He could not produce any evidence in support of his claim of title or the alleged dispossession by the defendants, whereas the defendants produced the final khatian as evidence of their tenancy right over the suit land. The learned Munsiff, therefore, held that the plaintiff failed to prove his case and was not entitled to any relief. The suit was accordingly, dismissed on merits. However, in the judgment, while dealing with one of the issues whether the suit was properly valued and stamped, the learned Munsiff observed that the suit was found not properly stamped and valued as the" plaintiff admitted (in his deposition) that the suit land was valued at Rs. 12,000/-. Against the said judgment the plaintiff filed an appeal before the Assistant District Judge, Cachar at Silchar which was also dismissed on contest. The learned Assistant District Judge confirmed the finding of the trial Court and held that the plaintiff failed to prove his case. The plaintiff filed the present second appeal before this Court.
3. The first submission of the counsel for the plaintiff-appellants is that the findings of the Courts below are perverse. This submission, however, could not be substantiated by the learned counsel for the appellants. I have perused the judgments of both the Courts below. There is a clear Concurrent finding of both the Courts that the plaintiff failed to produce any evidence in support of his case. On the other hand, the defendants could satisfy the court about their tenancy right in respect of the suit land by producing the final khatian in their favour, which stood unrebutted by the plaintiff. Nothing could be pointed out by the counsel for the appellant to show that the aforesaid concurrent finding was perverse. The submission in regard to perversity of the findings, therefore, being devoid of any merit, is rejected.
4. The next point raised by the counsel for the appellant relates to pecuniary jurisdiction of the trial Court. It is submitted that the appellant-plaintiff in his deposition having stated that the suit land was valued at Rs. 12,000/-, the court should not have proceeded further and returned the plaint as contemplated by Order 7 Rule 10 of the Code of Civil Procedure, hereinafter 'the C.P.C.' That having not been done it is submitted that the judgment and decree passed by the learned Munsiff was a nullity. It is further submitted that the Munsiff had no pecuniary jurisdiction to try the suit and on that account also the judgment and decree passed by him are without jurisdiction.
5. The objection taken by the learned counsel for the appellants on the ground of under-valuation of the suit and lack of pecuniary jurisdiction of the court is interesting in view of the facts and circumstances of the present case. In this case, it is the plaintiff who filed the suit in the Court of the Munsiff and submitted to his jurisdiction valuing the suit at the annual rent only. It was on the objection raised by the Shirastadar that the court examined the question of valuation, heard the counsel for the plaintiff and held that the suit was governed by Section 7 of the Court Fees Act and permitted the plaintiff to properly value the suit for the purpose of court-fee and pecuniary jurisdiction of the court taking into account the value of the suit land, and to pay ad valorem court fee. The plaintiff thereupon amended the plaint and put the valuation of the suit for the purpose of court-fee and jurisdiction at Rs. 150/-. It is on the basis of the valuation given by the plaintiff which was within the limits of the pecuniary jurisdiction of the court that it took up the case for trial and decided the same on merits. Now, because the decision of the court has gone against the plaintiff, he wants to turn round and say that proper valuation was not Rs. 150/- as declared by him in the plaint, but Rs. 12,000/-and as such, the court had no pecuniary jurisdiction to deal with the matter. The question that arises for consideration is whether the plaintiff can be allowed to say so. This is not a case of lack of inherent jurisdiction. The court had the jurisdiction to try the subject matter of the suit. The dispute is only in regard to valuation of the suit for the purpose of court-fee and jurisdiction. On consideration of the facts and circumstances of the case, I am of the opinion that a plaintiff, in a case like this, cannot be allowed to dispute the valuation of the suit put by himself and challenge the pecuniary jurisdiction of the court. As observed by the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 : (1954 All LJ 551), it would be an unfortunate state of the law, if the plaintiff who initiated proceedings in a court of his own choice could subsequently turn round and question its jurisdiction on the ground of an error in valuation which was his own.
6. Learned counsel for the appellant, Mr. A. Laskar placed reliance on the rule that consent or waiver cannot confer jurisdiction upon a court otherwise incompetent to try a suit. Counsel for the respondent, Mr. B.K. Acharyya, on the other hand, referred to Section 11 of the Suits Valuation Act, 1887 and Section 21 of the Civil Procedure Code, 1908 and submitted that the general rule pressed into service by the counsel for the appellant does not apply to cases of lack of territorial or pecuniary jurisdiction governed by Section 21 of the C.P.C. which is an exception. I have carefully considered the rival submissions. Section 11 of the Suits Valuation Act lays down the procedure to deal with objection taken on appeal or revision that a suit or appeal wad not properly valued for jurisdictional purposes. It provides that an objection that by reason of the over-valuation or under-valuation of a suit or appeal a court of first instance or lower appellate court which had no jurisdiction with respect to the suit or appeal, exercised jurisdiction with respect thereto, should not be entertained by an appellate court unless the objection was taken in the court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower appellate court in the memorandum of appeal and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits. The policy of the legislature appears to be to treat the objection as technical -- not open to consideration by an appellate court, unless there has been a prejudice on merits. This jurisdiction con-
ferred on the appellate court is an equitable one which should be exercised only when there has been erroneous assumption of jurisdiction by a subordinate court as a result of over-valuation or under-valuation and consequential failure of justice. Section 11, in fact is an exception to the general principle that want of jurisdiction will render the proceeding in a court null and void.
7. To the same effect is the provision of Section 21 of the C.P.C. Sub-Section (2) of Section 21 deals with objection in regard to pecuniary jurisdiction of the court. It reads;
"(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice."
From a reading of the aforesaid provision it is clear that lack of pecuniary jurisdiction is quite different and distinct from inherent lack of jurisdiction which goes to the root of jurisdiction or competence of a court to try a case. An objection on the ground of lack of pecuniary jurisdiction cannot be entertained by appellate or revisional court even if it was taken at the earliest opportunity before the trial court when there was no failure of justice. In the absence of failure of justice, lack of territorial or pecuniary jurisdiction is a mere irregularity which does not make a decree nullity. Section 21(2) is a statutory recognition of the principle that defect as to pecuniary jurisdiction of the Court may be waived by the defendant.
8. As to what amounts to failure of justice or as to when it can be said that the overvaluation or undervaluation of a suit has prejudicially affected the disposal of the suit or appeal on its merits, we may refer to the decision of the Supreme Court in Kiran Singh v. Chaman Paswan, supra, where dealing with the expression "prejudicially affected the disposal of the suit or appeal on its merits", it was held (at page 342):
"These words clearly show that the decrees passed in such cases are liable to be interfered with in an appellate Court, not in all cases and as a matter of course, but only if prejudice such as is mentioned in the section results. And the prejudice envisaged by that section therefore must be something other than the appeal being heard in a different forum."
It was further held :
"We are therefore clearly of opinion that the prejudice contemplated by the section is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined."
Dealing with the meaning of the word "prejudice" used in Section 11 of the Suits Valuation Act, the court observed :
"The prejudice on the merits must be directly attributable to over-valuation or under-valuation and an error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over-valuation or under-valuation. Mere errors in the conclusion on the points for determination would therefore be clearly precluded by the language of the section."
Similar is the interpretation of the expression "results in failure of justice" used in Section 21(2) of the C.P.C. In the instant case the plaintiff has totally failed to make out any case of prejudice being caused to him by the suit having been tried by the Munsiff or of any failure of justice as a result thereof. Under the circumstances the requirements of Section 11 of the Suits Valuation Act or Section 21(2) of the C.P.C. are not fulfilled.
9. This appeal, therefore, has no merit and the same is dismissed with costs.