Bombay High Court
Sagar Dattatraya Sakhare vs Shri Sanjay Waman Sathe on 26 June, 2014
Author: R. M. Savant
Bench: R. M. Savant
wp-654.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.654 OF 2011
1] Sagar Dattatraya Sakhare ]
Age 21 years, Occ. Education ]
Through guardian and next friend ]
the mother ]
(Petitioner No.1 now attained majority) ]
]
2] Smt. Swati Dattatraya Sakhare ]
Age 40 years, Occ.Agriculturist & Service ]
Both residing at Hinjwadi, Tal. Mulshi ]
District Pune and at I-30, H. A. Colony ]
Pimpri, Pune 411 018ig ]..... Petitioners.
Versus
1] Shri Sanjay Waman Sathe ]
Age 42 years, Occ. Service ]
Residing at Kharalwadi, Sakhare Chawl ]
Pimpri, Pune 411 018 ]
]
2] Shri Pandurang Sakharam Sakhare ]
Age 79 years, Occ. Agriculturist ]
]
3] Sou. Anusaya Pandurang Sakhare ]
Age 72 years, Occ. Agriculturist ]
Nos. 2 and 3 residing at Hinjwadi ]
Tal. Mulshi, District Pune ]
]
4] Gajanan Balu Sakhare ]
Age 19 years, Occ. Education ]
]
5] Shri Ravindra Balu Sakhare ]
Age 23 years, Occ. Education ]
]
6] Balu Pandurang Sakhare ]
Age 48 years, Occ. Service ]
and Agriculture ]
Nos.4, 5 and 6 residing at Hinjwadi ]
Tal Mulshi District Pune. ].... Respondents.
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Mr. Shriram S Kulkarni for the Petitioners.
Mr. Pralhad D Paranjape for the Respondents Nos. 4 to 6.
Mr. T D Deshmukh for the Respondent Nos.1 to 3.
Mr. A A Kumbhakoni, Senior Advocate, Amicus Curie.
CORAM : R. M. SAVANT, J.
Reserved on : 9th May 2014.
Pronounced on : 26th June 2014
JUDGMENT
1 A short question which arises for consideration in the above Petition is, whether the forum of Appeal is to be determined on the basis of the value of the subject matter of the Suit as determined by the Trial Court in the decree or on the basis of the valuation of the suit as originally set out in the plaint.
FACTUAL MATRIX 2 The above Petition is directed against the order dated 13/10/2010 passed by the learned District Judge-12, Pune by which order the Applications Exhibits 9 and 14 filed in Civil Appeal No.758 of 2008 by the Respondents herein came to be allowed and the Memo of Appeal was directed to be returned to the Petitioners herein for presentation before the appropriate forum. The Petitioners herein are the original Plaintiffs and the Respondents herein are the original Defendants. The parties would be referred to as per their status in the Trial Court.
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3 The Plaintiffs had filed the suit in question being Regular Civil Suit
No.1171 of 2006 against the Defendants for seeking a declaration that the Gift Deed dated 10/11/2005 executed by the Defendant Nos.2 and 3 in favour of the Defendant No.1 in respect of the suit properties be declared as illegal, null and void, and not binding on the Plaintiffs, and the same be cancelled. The Plaintiffs had also sought the relief of partition of the suit properties and permanent injunction. It was the case of the Plaintiffs that the Defendant No.2 has two sons one Dattatraya who had expired, and the Defendant No.6. The Plaintiffs claimed through the said Dattatraya being his son and widow. The Defendant No.3 is the wife of Defendant No.2 and the Defendant No. 6 is the father of Defendant Nos.4 and 5. The Defendant No.1 in whose favour the Gift Deed has been executed by the Defendant Nos.2 and 3 is the grand-son of the Defendant Nos.2 and 3 being the son of their daughter one Chandrabhaga Waman Sathe. According to the Plaintiffs a registered deed of partition came to be executed on 13/9/2002 with the consent of the sister of the Defendant No.2. It was the case of the Plaintiffs that in terms of the Partition Deed, the Defendant No.2 though having a share in the properties being Survey No. 5/10/, 79/2, 102/2 and 116/2, had agreed that he would not transfer the same during his life time and after his demise 1/2 share will come to the Plaintiffs and 1/2 will go to the Defendant Nos.4 and 5. It was the case of the Plaintiffs that despite the said Partition Deed, the Defendant Nos.2 and 3 lgc 3 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 executed the registered Gift Deed in favour of the Defendant No.1 on 10/11/2005 not only in respect of the suit properties but also in respect of the land bearing Survey No.133/5 in violation and breach of the Partition Deed and therefore the suit has been filed by the Plaintiffs claiming partition of their 1/3rd share in Survey No.133/5, and seeking declaration that the Gift Deed executed by the Defendant Nos.2 and 3 in favour of the Defendant No.1 is illegal, null and void and not binding on the Plaintiffs.
4The Defendant Nos.1 to 3, 5 and 6 filed their Written Statement, however, denied the case of the Plaintiffs and also denied any restriction on their capacity to transfer the suit properties and it was their case that the Defendant No.2 had become the absolute owner of the properties assigned to his share and therefore the Plaintiff No.1 and the Defendant Nos.5 and 6 cannot have any claim.
5 The parties went to trial, the Trial Court by the judgment and order dated 23/10/2008 partly decreed the suit and thereby declared the Gift Deed executed by the Defendant Nos.2 and 3 in favour of the Defendant No.1 as illegal, null and void and not binding upon the Plaintiffs, and further granted Temporary Injunction. Whilst decreeing the suit, the Trial Court also recorded a finding that the suit was not properly valued and held that since the Gift Deed was covering a property which was worth Rs.18,06,000/- is lgc 4 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 challenged, the suit had to be valued on the said basis and, accordingly directed the Plaintiffs to pay the deficit court fees.
6 The Defendant Nos. 1 to 3, 5 and 6 filed a First Appeal in this Court being First Appeal No.334 of 2010 against the decree passed by the Trial Court dated 23/10/2008. The Petitioners herein i.e. the Plaintiffs filed Regular Civil Appeal No.758 of 2008 in the District Court, Pune challenging the decree in so far as the finding recorded on Issue No.6 against them, viz. whether the suit is properly valued. The Assistant Superintendent of the District Court, Pune on the basis of the finding recorded on Issue No.6 observed that it would be necessary to ascertain whether the Appeal filed in the District Court was maintainable. However, the learned District Judge-6 by his order dated 10/12/2008 took a view that the court fees would have to be paid at the rate of ½ of ad volorem fee leviable on the value of the property. The learned District Judge further held that if the declaration is sought that a sale, contract for sale or a termination of contract for sale of any movable or immovable property is void, and if the same is in respect of the Gift Deed, the suit is required to valued as per Section 6(iv)(j) of the Bombay Court Fees Act, and therefore, the Appeal was maintainable. According to the learned District Judge the valuation of the suit being less than Rs.2,00,000/-. The Appeal filed in the District Court was maintainable.
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7 After the said order dated 10/12/2008 was passed by the learned
District Judge-6 Pune, the Respondent No.1 herein filed an Application Exhibit 9 in the said Civil Appeal No.758 of 2008. The Respondent Nos.2 and 3 herein also filed a similar Application Exhibit 14 seeking direction that the Appeal filed by the Petitioners herein be returned to the Petitioners for being presented in the High Court and to further hold that the Appeal is not maintainable in the District Court and to hold that the subject matter of the suit exceeded Rs.2,00,000/- and therefore the District Court had no jurisdiction to entertain the Civil Appeal. It seems that on 14/09/2010 the First Appeal filed by the Respondents being First Appeal No334 of 2010 against the decree passed by the Trial Court came up for hearing before a Division Bench of this Court. The Division Bench of this Court, in view of the Applications Exhibit 9 and Exhibit 14 directed the Lower Appellate Court i.e. the learned District Judge to decide the Applications Exhibit 9 and Exhibit 14 on their own merits and in accordance with law within the time stipulated in the said order. The learned District Judge-12, Pune accordingly took up the said Applications Exhibit 9 and Exhibit 14 and held that in view of the finding recorded on Issue No.6 by the Trial Court, the Appeal would have to be returned to the Petitioners for being presented before the appropriate forum. The learned District Judge-12 accordingly allowed the Applications Exhibit 9 and Exhibit 14 by his order dated 13/10/2010.
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8 The gist of the reasoning of the learned District Judge was that the
Appeal being a continuation of the suit, the Court had the powers to revise the valuation under Section 8 of the Suits Valuation Act and hence though at the time of the admission of the Appeal an order was passed that the valuation of the suit is below Rs.2,00,000/- and therefore the District Court was the Appellate forum, the said was liable to be corrected, if the question has been wrongly decided to the detriment of the revenue and then the Court can call upon the party to pay the additional court fee, the learned District Judge held that having regard to subsection 2 of Section of Section 14 of the Suits Valuation Act, the decision as regards the valuation has become final between the parties and therefore for the purposes of determining of the forum of Appeal, the valuation of the suit has to be held beyond Rs.2,00,000/-. The learned District Judge has held that in terms of Section 26 of the Bombay Civil Courts Act the Appeal would not lie before the District Court. As indicated above, he learned District Judge accordingly allowed the Applications Exhibits 9 and 14 and directed that the memo of Appeal be returned to the appellant for presentation before the appropriate forum. It is the said order dated 13/10/2010 passed on the Applications Exhibit 9 and Exhibit 14 which is taken exception to by way of the above Writ Petition.
9 Heard the learned counsel for the parties. The principal contention of the learned counsel appearing for the Petitioners original lgc 7 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 Plaintiffs Shri Kulkarni was that the forum of Appeal has to be determined on the basis of the valuation of the suit when originally filed and not on the basis of the decree passed. The learned counsel would contend that the Lower Appellate Court had therefore erred in holding that the valuation would be in terms of the finding which has been recorded on Issue No.6 by the Trial Court and therefore the Appellate forum would not be the District Court. The learned counsel for the Petitioners placed reliance on the Full Bench Judgment of this Court in the case of Kazi Sayed Saifudding v/s. Kasturichand Abhayrajji Golchha1, the judgments of two learned Single Judges of this Court in Nirmal Quality Products v/s. M/s. Contey Industries and another 2 and in Teofilo Barreto v/s. Sadashiv G Nasnodkar and others.3 The learned counsel for the Petitioners Shri Kulkarni would next contend that the Petitioners i.e. the original Plaintiffs have filed an Appeal against the decree passed by the Trial Court wherein the finding on Issue No.6 has been assailed and therefore the said finding on issue No.6 is in question in the Appeal. The learned counsel would contend that the reliance placed on behalf of the Respondents herein i.e. the original Defendants on the judgment of a learned Single Judge of Madras High Court in the case of Maddipati Ramanna alias Tatabbayi and others v/s. Maddipati Subbarayudu and others 4 is misplaced and the same would not aid the Respondents in support of their case that the valuation has to be on the basis of the finding in respect of the valuation 1 1999(2) Mh.L.J.675 2 1995(1) Mh.J.J.189 3 2007(3) Mh.L.J.850 4 AIR (38) 1951 Madras 886(2) lgc 8 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 recorded by the Trial Court in the decree.
10 Per contra, the learned counsel appearing on behalf of the Respondent Nos.1 to 3 i.e. the original Defendants Shri T D Deshmukh would submit that since the suit was erroneously valued, at the instance of the Defendants that the issue regarding valuation was framed and since same has been answered against the Plaintiffs, the Plaintiffs have accordingly been directed to pay court fee on Rs.18,06,000/-, the said valuation would relate back to the filing of the suit and therefore the Appellate forum would have to be decided on the said basis. The learned counsel would contend that in a somewhat identical situation, a learned Single Judge of the Madras High Court in the judgment in the case of Maddipati Ramanna (supra) has held that where the Plaintiff revises in obedience to an order of the Court directing him to pay the court fees, the valuation as finally adopted in the plaint and not the one originally mentioned will determine the forum of Appeal. The learned counsel would submit that in the instant case Court has come to a conclusion that the suit has been wrongly valued and accordingly directed the Plaintiffs to pay the court fee on the amount of Rs.18,06,000/- which was the subject matter of the suit, the suit would have to be valued accordingly which would accordingly determine the Appellate forum. The learned counsel would contend that though the Lower Appellate Court had initially at the time of admission of the Appeal had held that the valuation is under Rs.2,00,000/-, the lgc 9 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 same was liable to be corrected as the Court has ample powers under Section 14 of the Bombay Court Fees Act to do so. The learned counsel would contend that the Lower Appellate Court has accordingly rightly held that the valuation would have to be in terms of the finding which has been recorded by the Trial Court on Issue No.6, and therefore, directed that the Appeal be returned to the appellant for being presented in the appropriate forum.
The learned counsel Shri Paranjape for the Respondent Nos. 4 to 6 adopted the submissions of the learned counsel for the Petitioner.
11 The learned Senior Counsel Shri A.A.Kumbhakoni was requested to assist this Court in adjudicating the above issue. He willingly consented to the same and made the following submissions :-
The learned Senior Counsel would contend that the valuation of the suit for the purposes of the payment of court fees and for the purposes of jurisdiction ought not to be confused with each other. This more particularly for deciding the issue of jurisdiction of appellate court to try and decide the Appeal. The learned Senior Counsel would contend that though Section 8 of the Suits Valuation Act specifically lays down that valuation of a suit for court fees and valuation for jurisdiction must generally be the same, the said provision itself carves out the exceptions where the valuation between the two lgc 10 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 may differ, thus in exceptional cases, value for court fee and value for jurisdiction of the suit may differ. The learned Senior Counsel would contend that the same is exemplified by the fact that the parties to a suit may file Appeals aggrieved by different parts of the decree. If the suit is partly decreed, the Plaintiff would file an Appeal against that part of the decree which has been refused whereas the Defendant may file an Appeal against the part of the decree which has been allowed. Hence in so far as the valuation of the Appeals for the purposes of court fees is concerned they would differ however in so far as the valuation for the purposes of jurisdiction, it would be the same and identical to the manner in which the suit is valued. The learned Senior Counsel would contend that in the instant case, the finding rendered on Issue No.6 seems to be more aimed at the valuation of the suit for the purposes of court fees rather than the valuation of the suit for the purposes of jurisdiction.
The learned Senior Counsel would contend that in the instant case the Court may not have adjudicated the issue from the point of jurisdiction since it was the court of learned Civil Judge, Senior Division who had unlimited jurisdiction in terms of the value of the suit. The learned Senior Counsel would contend that the end result is that in spite of the aforesaid finding of the Trial Court in respect of the improper valuation of the suit, the suit continues to be valued for the purposes of jurisdiction in the way it was since the beginning i.e. for an amount of Rs.1,000/- plus Rs.4/- as is clear from the plaint. The learned Senior Counsel would contend that the instant case stands on a different footing than lgc 11 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 the case before the learned Single Judge of the Madras High Court in Maddipati Ramanna's case, as in the instant case the Plaintiffs have questioned the finding recorded by the Trial Court on the said Issue No.6 whereas in the case before the Madras High Court the Plaintiffs had accepted and corrected the valuation in terms of the order passed by the Trial Court and it is thereafter at the appellate stage that the Plaintiffs had sought to question the revised valuation. The learned Senior Counsel would contend that the fact that the Plaintiff is unable to value the suit properly when it is filed or whether the Plaintiff has deliberately undervalued/overvalued the suit at the time of filing of the suit, the same would not change the position of law inasmuch as the jurisdiction of the appellate court is concerned. The jurisdiction of the Appellate forum would be continued to be governed by the valuation of the suit for the purposes of jurisdiction, as made by the Plaintiff, at the stage of filing of an Appeal. It is only if the valuation of the suit for the purposes of jurisdiction is either enhanced or reduced, such an amended valuation of the suit would decide the jurisdiction of the Appellate forum, as in such a case an amendment relates back to the date of filing of the suit. The learned Senior Counsel would contend that the common thread in all the judgments cited (supra) on behalf of the parties is that the valuation of the suit determines the forum of the Appeal and not the valuation of the decree, and that the forum of Appeal is to be determined upon the value as found by the Court has not been accepted by all the High Courts.
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12 Having heard the learned counsel for the parties, I have
considered the rival contentions. As indicated above the issue which arises for consideration whether the finding recorded by the Trial Court in respect of the valuation of the suit would determine the Appellate forum in the instant case.
In the instant case the Plaintiffs had valued the suit at Rs.1004/- for the purposes of court fees and jurisdiction. The said valuation was objected to on behalf of the Defendant Nos. 1 to 3. In view thereof, the Trial Court had framed Issue No.6 which was to the following effect :- "Whether the Plaintiffs have properly valued the suit?", and the answered the same in the negative.
The said finding of the Trial Court is recorded in Paragraph No.20 of its judgment dated 23/10/2008 which for the sake of convenience is reproduced herein under :-
"Admittedly, the Plaintiffs have challenged the gift deed dated 10.11.2005 executed by Defendants No.2 and 3 in favour of the Defendant No.1, but, it is a fact that, Plaintiffs have not shown the market value of the suit properties, for the better reasons known to them. According to the Defendants, the market value as shown in the said Gift Deed is Rs.18,06,000/- and therefore the suit falls under Section 6(iv)(ha) of the Bombay Court Fees Act and thus, further concluded that the calculation of the Court fees by the Plaintiffs under Section 6(iv)(j) is not just and proper. I do not find substance in the submission of the Defendants and therefore I hold that the Plaintiffs ought to have paid the Court fees, considering the market value shown in the Gift Deed as Rs.18,06,000/- under section 6(iv)(ha) of the Bombay Court Fees Act, 1959. Therefore, they lgc 13 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 should deposit deficit court fees accordingly. With this observation, I have no hesitation to answer this issue in the negative."
The Plaintiffs were accordingly directed to pay the deficit court fees. In so far as the Plaintiffs are concerned, they have taken exception to the said decree by filing an Appeal in the District Court whereas the Defendants have taken exception to the decreeing of the suit for specific performance against them by filing a First Appeal in this Court. It is in the said First Appeal that a direction came to be issued to the learned District Judge before whom the Appeal filed by the Plaintiffs is pending directing the learned District Judge to decide the applications Exhibits 9 and 14 which have accordingly be decided by the order impugned in the present Petition.
A reference is required to be made to Section 8 of the Suits Valuation Act, 1887.
"Section 8: Court fee value and jurisdictional value to be the same in certain suits- Where in suits other than those referred to in the Court- fees Act, 1870 (7 of 1870) Section 7, paragraph v, vi and ix, and paragraph x, clause (d) court fees are payable ad valorem under the Court-fees Act, 1870 (7 of 1870), the value as determinable for the computation of Court-fees and the value for purposes of jurisdiction shall be the same."
13 At this stage, it is required to be noted that though Section 8 postulates that valuation for the purposes of Court fees and jurisdiction must generally be the same. The said provision itself carves out the exceptions to the said Rule. Thus in some type of cases which have been mentioned in the lgc 14 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 said provision the valuation for the purposes of court fees and jurisdiction may differ. The reference to the said provision is required to be made as the Trial Court in its finding recorded in Paragraph 20 or in the operative part of its judgment has not directed the Plaintiffs to correct the valuation for the purposes of jurisdiction but has only directed the Plaintiffs to pay the deficit court fees as per the valuation which has been arrived at by the Trial Court.
This may probably have been done by the Trial Court as the Trial Court was the Court of the Civil Judge Senior Division which has unlimited jurisdiction.
However, the question still remains is, whether the Appellate forum would have to be decided on the basis of the finding recorded by the Trial Court on the aspect of valuation or in terms of the valuation as it originally exist in the suit. It is required to be noted that in the judgments (supra) cited on behalf of the parties i.e. by the learned counsel for the Petitioners and the learned Senior Counsel Shri Kumbhakoni, the common thread running in all the said judgments is that the forum of Appeal is to be determined on the basis of the valuation in the plaint and not on the basis of the decree passed. The said view therefore seems to be a consistent view on the said aspect. It would therefore be apposite to consider the said judgments at this stage. In the case before the Full Bench of this Court in Kazi Syed Saifuddin (supra) the issue was whether the forum of Appeal would be determined on the quantum of mesne profits as decreed. The Full Bench answered the said issue by holding that the forum of Appeal for challenging the decree of eviction that has been based would not be lgc 15 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 determined on the basis of the mesne profits which have been determined pursuant to an enquiry under Order 20 Rule 12(1)(c) of the Code of Civil Procedure but would be determine on the valuation in the plaint as originally filed. Paragraph Nos.21 to 23 of the said Report are material and are reproduced herein under :-
21. The argument of the learned Counsel for the appellant, if accepted, is likely to give rise to certain anomalous position. In a suit for accounts filed by a sleeping partner he may not be aware at all of the nature of profits and his possible share. Even if aware, the law permits him to notionally value the claim in the plaint. If such a suit is dismissed, then against the decree on the basis of notional valuation in the plaint, the appeal by defendant would definitely go to the District Court. If the District Court reverses the decree of dismissal and passes a decree for a sum which is more than the limits of pecuniary jurisdiction of the trial Court (Civil Judge, Jr. Dn.) then it may be contended even at the appellate stage that the trial Court had no jurisdiction to entertain the suit. Thus after coming to the conclusion regarding the quantum to be awarded finally to the plaintiff, the Appellate Court will have to return the plaint for presentation to the proper Court. Similar is the case of claim in respect of future mesne profits. Further mesne profits are by their very nature profits or the income derived by the defendant during the pendency of the suit. The cause of action for the same does not accrue when the plaint is presented and in order to enable the plaintiff, a proviso is introduced to make a request to the Court for direction regarding the inquiry into future mesne profits, the quantum of which is not known to anybody at that stage. If after inquiry into future mesne profits the Court comes to a conclusion that the quantum to be awarded is beyond the pecuniary limits of the jurisdiction then it may be contended successfully that the Court had no jurisdiction to pass the preliminary lgc 16 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 decree as one of the claims made in the paint was beyond the pecuniary jurisdiction of that Court.
However, in the same case, an appeal against the dismissal of the suit would nevertheless lie to the District Court. Similarly, in a suit for accounts, the law permits the plaintiff to make a notional valuation and, as already discussed, the valuation for the purpose of jurisdiction is the same which is the valuation for the purpose of Court Fees as it permitted by law. If the contention that the forum of appeal is dependent on the final adjudication of the matter regarding the quantum of accounts or on the final decree then the preliminary decree may be challenged as one without jurisdiction and non est. In fact, in order to avoid such eventualities, provision has been made permitting the plaintiff to have a notional valuation and to pay the fixed Court Fees and the valuation for the purpose of jurisdiction is also to be the same. It is for these simple reasons, in the decision in Ambadas v. Vishnu Govind , the Division Bench of this Court has held that the mere fact that the decree is for an amount exceeding the pecuniary jurisdiction of the Court which passed the decree, is not ipso facto proof that it was beyond jurisdiction and a nullity and the Court is wrong in questioning in execution the validity of such a decree.
This judgement is followed in the case of Bindraban Kanhaiyalal Agarwal v. Kasturilal Nyahalchand Sodi and others, 1978 Mh.L.J. 561 by emphasising that it is the value of the claim in the plaint which determines pecuniary jurisdiction of a Court and if a suit is properly filed in competent Court there is no bar to prevent the Court from passing a decree for an amount in excess of its pecuniary jurisdiction. Jurisdiction is determined by valuation in plaint and not by result of the suit.
22. The Full Bench of Calcutta High Court has clearly laid down in the case of Bidyadhar Bachar and others v. Manindra Nath Das and others that where a Judge has in the proper exercise of his jurisdiction passed a decree for possession and also a preliminary decree for mesne profits, he must be held to have jurisdiction to make a final decree in accordance with his decision. This jurisdiction is not limited. If, as a result of the lgc 17 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 inquiry directed by him, the mesne profits are found to exceed the amount of his pecuniary jurisdiction as regards the value of the suit, the suit is rightly entertained as within the jurisdiction of the Judge and a decree is passed, his power to grant the proper and adequate relief is not affected by any event which increases the value of the relief during the pendency of the suit.
23. In other words, it can be stated that to hold that jurisdiction should depend on the amount for which the final decree is passed, would have the effect and the after the Judge passes a preliminary decree it is found after accounts are taken that the final decree must be for an amount exceeding the pecuniary limit of jurisdiction the entire proceedings before him including the decree passed should be considered as being without jurisdiction. The forum of appeal is determined with reference to the value of the suit and not the amount decreed. The plaintiff is neither required nor bound to state any amount in his application.
(Emphasis supplied) 14 In the case of Nirmal Quality Products (supra) the facts were that the suit in question was filed for recovery of Rs.55,596.01 it was partly decreed for Rs.41,266.38 with future interest on principal amount. In view of the part decreeing of the suit, the Defendants preferred an Appeal to the District Court as at the relevant time the District Court had the jurisdiction for trying a suit up to Rs.50,000/-. The suit was originally valued at Rs.55,596.01. The decree passed by the District Court was set aside by a Learned Single Judge of this Court in the Second Appeal as being a nullity and the learned District Judge was directed to return the Memorandum of Appeal to the appellants for presentation before the appropriate court. In the case of Teofilo Barreto lgc 18 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 (supra) it was held that it is the Plaintiffs valuation in the plaint which controls and governs the jurisdiction not only of the Trial Court but also that of the Appellate Court. The learned Single Judge in Teofilo Barreto's case placed reliance on the judgment of the Full Bench of this Court in Kazi Syed Saifuddin's cases which he has referred to in Paragraph No.46 of his judgment.
15 The learned Senior Counsel Shri Kumbhakoni also cited judgments which were also upholding the same proposition that it is the valuation in the plaint that would determine the Appellate forum and not the decree that is passed. The said judgments are :- in the case of Ahmedbhai Kadubhai v/s.
Badruddin1 The said concerns a administration suit which is a suit for accounts governed by Section 7(iv)(f) of the Bombay Courts Fees Act. The said administration suit for the purposes of court fees was valued at Rs.130 but by mistake valued at Rs.5500 for the purposes of jurisdiction and the decree was passed for Rs.25,000 odd. The learned Single Judge held that it is value of the subject matter of the suit that must decide the Court to which an Appeal would lie. The learned Single Judge further went on to observe that if the Court to which an Appeal lies was to be decided by the amount for which a decree has been passed numerous complications are likely to arise. The second judgment cited by the learned Senior Counsel was in the case of Kiran Singh and others v/s. Chaman Paswan and others 2, wherein the suit for ejecting the 1 A.I.R. (33) 1946 Bombay 356 2 (1955) 1 SCR 117 lgc 19 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 Defendants and for mesne profits was valued at Rs.2950, made up of Rs.2950/- being the value of the suit for possession and Rs.1000 being the past mesne profits claimed. The suit came to be dismissed. The District Court also dismissed the Appeal. The matter was carried by way of Second Appeal to the High Court. In the High Court for the first time, an objection was taken to the valuation in the plaint and after inquiry the Court determined that the correct value of the suit was Rs.9980/- The Plaintiff according paid the additional court fees required of them and raised the contention that on the revised valuation, the Appeal from the decree of the subordinate Judge would like not the District Court but to the High Court and that accordingly the Second Appeal should be heard as a First Appeal, ignoring the judgment of the District Court. The High Court held that the Appeal to the District Court was competent and that its decision could be reversed only if the appellants could establish prejudice on the merits and holding that on a consideration of the evidence no such prejudice had been shown. The Second Appeal was dismissed by the High Court. The Apex court confirmed the judgment of the High Court.
16 Applying the said principle laid down for determining the Appellate forum, by the judgments (supra), to the instant case, since in the instant case the suit was valued for the purposes of jurisdiction at Rs.1004/-, it would be the District Court that would be the Appellate forum for challenging lgc 20 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 the decree passed by the Trial Court.
17 In so far as the judgment of the learned Single Judge of the Madras High Court is concerned, in the said case an objection was taken to the valuation of the suit at the inception and an order came to be accordingly passed at the interim stage directing the Plaintiffs to correct the valuation. The Plaintiffs had accordingly raised the valuation and had also paid the court fees on it. Aggrieved by the decree passed in the suit, the Plaintiffs sought to amend the plaint in so far as the valuation is concerned and thereby choose the appellate form on the basis of the suit as originally valued i.e. prior to its revision. This was found fault with by the learned Single Judge of the High Court by holding that the challenge to the valuation would not determine the Appellate forum and that the Appellate forum in the said case would be as per the valuation of the suit which in the said case was the revised valuation of the suit. In my view, therefore, the facts of the said case stand apart from the facts of the instant case as in the instant case the Plaintiffs have challenged the decree passed in so far as Issue No.6 is concerned before the Appellate Court and has thereby not accepted the finding recorded by the Trial Court in respect of the valuation. That apart the general proposition of law which has been laid down by the judgments cited (supra) is that the Appellate forum is determined on the basis of the valuation as originally set out in the plaint and not on the basis of the contents of the decree. It is therefore not possible to accept the lgc 21 of 23 ::: Downloaded on - 27/06/2014 23:51:00 ::: wp-654.11 contention of the learned counsel for the Petitioner that the valuation corrected by the Trial Court would relate back to the date of the filing of the Suit and therefore the Appellate forum would have to be decided on the said basis. It would be another matter if the Plaintiffs accept the finding as regards the valuation recorded by the Trial Court and file an Appeal based on the said valuation. However, such being not the instant case, it is therefore not necessary to consider such a situation.
18In my view, the application of the said proposition of law results in uniformity in so far as the Appellate forum is concerned, as otherwise it would happen that the Plaintiffs may choose one Appellate forum and the Defendants another. Hence though the valuation for the purposes of court fees would change in a given case, for the purposes of jurisdiction it would remain the same. Such a scenario cannot be said to be alien to the legal frame work which is applicable to the valuation of the suit. The learned Senior Counsel Shri Kumbhakoni is therefore right in submitting that the valuation a suit for the purposes of payment of court fees and for the purposes of jurisdiction should not be confused with each other.
19 In the light of the aforesaid, the impugned order passed by the Lower Appellate Court allowing the said Applications Exhibits 9 and 14 would have to be quashed and set aside and is accordingly quashed and set aside.
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The result would be that in so far as the Appeal filed against the decree dated 23/10/2008 passed by the Trial Court is concerned, the District Court, Pune would be the Appellate forum. The above Petition is allowed. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.
20 Finally a word of appreciation for the assistance rendered by learned Senior Counsel Shri A A Kumbhakoni would not be out of place, who did so most willingly and at short notice.
[R.M.SAVANT, J]
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