Rajasthan High Court - Jaipur
Smt. Mani vs Kishan Lal And Anr. on 3 July, 1996
Equivalent citations: AIR1997RAJ19, 1996(3)WLC409, 1996(1)WLN523
JUDGMENT B.R. Arora, J.
1. This appeal is directed against the decree and judgment dated 12-3-92 passed by the learned single Judge, by which the learned single Judge dismissed the appeal filed by the appellant and maintained the decree and judgment dated 5-12-87 passed by the District Judge, Churu decreeing the plaintiffs suit for specific performance of the contract.
2. Plaintiff Kishan Lal, on 5-8-78, filed a suit for specific performance of the contract, against defendant Ganesh Narain alias Ganesh Ram in the Court of the Additional District Judge, Churu. The' suit was based on the agreement (Ex.1) dated 16-11-70, by which defendant Ganesh Narain agreed to sell a Nohra situated in Churu for a consideration of Rs. 11,000/- and took, Rs. 2,000/- as advance from the plaintiff. It was further agreed that the payment of the remaining amount of Rs.9,000/- will be made within a period of one month from the date of execution of the agreement and on the receipt of this amount, Ganesh Narain alias Ganesh Ram will execute the sale deed in favour of the plaintiff. The Nohra in question was adjacent to the house of the plaintiff and, therefore, the plaintiff wanted to purchase it. The defendant neither took the remaining amount of Rs.9,000/- nor executed the sale deed. A registered notice through his advocate was sent by the plaintiff to the defendant, which was received by the defendant on 12-12-70. A telegram was, also, later on given to the defendant. The plaintiff, also, offered the remaining amount of Rs. 9,000/- to the defendant on 14-12-70,15-12-70 and 16-12-70 but the defendant did not accept the same. It was,, also, averred in the plaint that the plaintiff was always ready and willing and still ready and willing to perform his part of the contract and On account of non-execution of the sale deed in favour of the petitioner, he has suffered a loss and, therefore, he claims RS. 2,500/- on this count.
3. The defendant, in his written statement, denied the execution of the agreement and stated in the written statement that neither he agreed to sell the Nohra in question to the plaintiff or to any other person nor he took Rs.2,000/- as advance. It has been further stated in the written statement that the plaintiff forcibly wanted to take possession over the Nohra in question and on account of this Nohra, the dispute exists between the parties for the last about ten to fifteen years and civil as well as criminal litigations are going on between them. To resolve the dispute between the parties, Shri Kishan Lal Saraf was appointed as an arbitrator and an agreement was arrived at between the plaintiff and the defendant on the asking of Shri Kishan Lal Saraf -- the arbitrator, on which he appended his signatures and not on Ex.1. He also, denied the receipt of any sum as advance. It has further been averred in the written statement that the alleged agreement Ex.1 is a void contract and on the basis of it, no suit can be filed.
4-5. On the pleadings of the parties, the issues were struck out by the learned Additional District Judge, Churu on 4-4-73 and the plaintiff was directed to produce his evidence. On 14-12-73 the plaintiff produced his witnesses in the Court of the Additional District Judge. On 14-12-73 the learned Additional District Judge recorded the statements of PW 1 Kishan Lal s/ o Bilas Rai, PW 2 Kishan Lal s/o Bheru Lal, PW3 Ram Lat and PW 4 Kishan Lal Saraf, before whom the agreement Ex. I was executed. The case was thereafter adjourned to 1-2-74 for recording the statements of the remaining witnesses of the plaintiff. On 1-2-74 witnesses Vishva-nath and Murari Lal were present in the trial Court but the learned counsel for the plaintiff requested that their statements may be recorded on commission and on the request of the learned counsel for the plaintiff, Shri Asha Ram, Advocate, was appointed as the Commissioner to record their statements and the case was adjourned to 12-3-74 for recording the statements of the other witnesses. Three witnesses were summoned for the next date of hearing. On 12-3-74 the Commissioner did not produce the statements of the witnesses. The witnesses were present in the Court but since the learned counsel for the defendant was not present and had gone to Sardarshahar, therefore, a request for ad-journment was made on his behalf and the case was adjourned to 19-4-74. On 19-4-74 a request was made on behalf of the plaintiff to examine Chandan Ram, Madan Lal and Maal Chand on commission. This request was accepted and Shri Asha Ram, Advocate was appointed as the Commissioner for recording the statements of these witnesses, also. On 12-4-74 the District Judge, Bikaner, after the establishment of the Court of the Civil Judge at Churu, ordered for the transfer of certain cases to the Court of the Civil Judge from the Court of the Additional District Judge, Churu. The case file of this case was transferred from the Court of the Additional District Judge and the same was received in the Court of the Civil Judge, Chum on 17-4-74. The plaintiff thereafter produced his witnesses in the Court of the Civil Judge, Churu. On 22-4-74 the statements of PW5 Madan Lal, PW6 Bhanwar Lal and PW7 Vighvanath were recorded. On 10-5-74, PW 8 Murari Lal, PW9 Kishan Lal s/o Ganesh Narain and PW 10 Kishan Lal were examined. On 17-4-75 the statement of PW 11 Diwan K. S. Puri -- the handwriting expert -- was recorded and thereafter the plaintiff closed his evidence.
6. The defendant thereafter produced his witnesses and their statements were recorded by the learned Civil Judge. DW 1 Smt. Mani was examined on 12-1-76 while DW 2 Vinod Kumar and DW 3 Govind Prasad were examined on 1-9-76. The statement of DW4 Bhagwati Prasad was recorded on 23-8-77 and that of DW5 Mohan Lal was recorded on 21-12-77 and on 17-1-78 the defendant closed his evidence and the case was fixed for arguments, on various dates but the arguments could not be heard as the counsel for the parties sought adjournments. On 2-8-78 the case was transferred to the Court of the District Judge, Churu. On 4-9-78 an objection was taken by the learned counsel for the defendant that the Court of Civil Judge, Churu has no pecuniary jurisdiction to adjudicate the matter and, therefore, the statements of the witnesses recorded by the Civil Judge cannot be read in evidence and the re-trial may be ordered. The learned District Judge overruled this objection by his order dated 6-10-78 and after hearing the arguments decreed the suit filed by the plaintiff vide decree and judgment dated 5-12-78.
7. Dissatisfied with the decree and judgment dated 5-12-78 passed by the learned District Judge, Churu, Smt. Mani and Smt. Pushpa -- the legal representatives of deceased-defendant Ganesh Narain alias Ganesh Ram filed civil regular first appeal before this Court, which was dismissed by the learned single Judge vide decree and judgment dated 12-3-92. It is against this decree and judgment passed by the learned single Judge that the appellant has preferred this appeal.
8. It is contended by the learned counsel for the appellant that the evidence recorded by the learned Civil Judge, Churu, who had no pecuniary jurisdiction to try the suit, is no legal evidence in the eye of law. He was not legally authorised under the law to record the statement of the witnesses and the absence of the inherent jurisdiction of the Civil Judge renders the proceedings and the evidence recorded by him as nullity. It has, also, been contended by the learned counsel for the appellant that the decree and judgment passed by the learned District Judge, as affirmed by the Hon'ble single Judge, which are based on the evidence recorded by the Civil Judge, deserve to be quashed and set aside.
9. Learned counsel for the respondents, on the other hand, has supported the decree and judgment passed by the learned single Judge and submitted that the want of pecuniary jurisdiction is only an irregularity in the exercise of the jurisdiction and unless there is a failure of justice, the decree and judgment passed by the learned single Judge as well as by the learned District Judge cannot be set aside. He has, also, submitted that in view of Section 21(2) of the Code of Civil Procedure, no objection as to the competence of the Court with reference to the pecuniary limits of its jurisdiction can be allowed by any appellate Court unless such objection was taken in the Court of the first instance at the earliest possible opportunity and in case where issues are settled, at or before such settlement of issues and unless there is a consequent failure of justice.
10. We have considered the submissions made by the learned counsel for the parties.
11. The only contention raised by the learned counsel for the appellant in the appeal is regarding the admissibility of the evidence recorded by the Civil Judge. The contention of the learned counsel for the appellant is that the proceedings before the learned Civil Judge, who had no pecuniary jurisdiction to try the suit, are not the judicial proceedings and as such the statements of the witnesses recorded by him cannot be read in evidence and the failure of the counsel to raise any objection at the time of recording the statement will not alter the character of the evidence.
12. Order 18, Rule 4 of the Code of Civil Procedure provides that the evidence of the witnesses in the attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Presiding Judge of the Court who had jurisdiction to decide the case. Order 26, C.P.C. provides that the witnesses can be examined on commission if so ordered by the Court. In the present case the evidence, which the parties wanted to call, was called. Plaintiffs four witnesses were examined by the learned Additional District Judge prior to the transfer of the case. The statements of plaintiffs remaining seven witnesses were recorded by the learned Civil Judge, Churu after the transfer of the case to its Court. After the closure of the plaintiffs evidence, defendant Ganesh Narain's legal representatives i.e.. the present appellants, also examined five of their witnesses. The defendant participated in the trial, cross-examined the plaintiffs witnesses, produced his own witnesses before the Court without raising any objection regarding the jurisdiction of the Court. The objection regarding admissibility of the evidence recorded by the Civil Judge was raised when the arguments were heard by the District Judge after the transfer of the suit to his Court.
13. Sub-section (2) of Section 21 of the Code of Civil Procedure, which was enacted in the year 1976 and made applicable with effect from 1-2-77, was inserted with a view to expedite the disposal of the suits and to avoid the entertainment of technical objections regarding pecuniary jurisdiction unless there is a failure of justice. Section 21(2) of the Code of Civil Procedure provides that the objection regarding pecuniary jurisdiction should be raised at the earliest opportunity and even if so taken, will not be fatal unless there is a failure of justice. The section lays down three conditions for accepting the objection regarding the pecuniary jurisdiction, i.e., (i) the objection must be taken in the Court of the first instance; (ii) the objection must be taken at the earliest possible opportunity, i.e., before the issues are settled; and (iii) there has been a consequent failure of justice. All these three conditions laid down in Sub-section (2) of Section 21, C.P.C. must co-exist. Even if first or second conditions or both the conditions are satisfied byt there is no failure of justice, the objection regarding pecuniary jurisdiction cannot be entertained.
14. In Shankappa Rai v. Keraga Pujary (AIR 1931 Mad 575) the Division Bench of the Madras High Court held that "the proceedings before a Judge or a Magistrate who has no pecuniary jurisdiction, is not a judicial proceeding and the evidence of the witnesses given in such a proceeding, cannot be used under Section 33 on re-trial before a competent Court.
The judgment in the aforesaid case was given prior to the insertion of Sub-section (2) of Section 21, C.P.C. After coming into force of Section 21(2), the objection regarding the pecuniary jurisdiction can be entertained only if three conditions laid down in the section are satisfied. In view of Section 21(2), C.P.C., the objection regarding pecuniary jurisdiction about recording of the evidence can be allowed only at the initial stage and if a failure of justice is there. This case is, therefore, not of any help to the appellant.
15. In Bismillah Khan v. State of Rajathan (AIR 1959 Raj 21) the learned single Judge of this Court held that "where in a Sessions trial under Sections 366 and 367, Penal Code-the only ground for admitting evidence under Section 33, Evidence Act was that the girls and their mother were not traceable and the Court, while allowing the application, advanced new grounds of unreasonable delay and expense in producing those witnesses.... the order admitting the evidence was not justified."
In view of Section 21(2) of the Code of Civil Procedure, the ratio of this case is, also, not applicable to the facts and circumstances of the present case.
16. Learned counsel for the appellant, also, relied upon the decisions given in: Limyan Hong & Co. v. Lam Choon & Co. (AIR 1928 PC 127) and Rao Bhim Singh v. Sher Singh (AIR 1948 PC 1). These cases do not throw any light on the controversy and are not applicable to the present case as the facts and the controversy involved in these cases are different.
17. In Kiran Singh v. Chaman Paswan (AIR 1954 SC 340) the Supreme Court held that :--
"The policy underlying Sections 21 and 99, C.P.C. and Section 11 of the Suits Valuation Act is the same, namely that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and, the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits."
18. In Koopilan Unseen's daughter Pathumma v. Koopilan Unseen's son Kunta-lan Kutty died by L. Rs. (AIR 1981 SC 1683) the Apex Court held that "in order that an objection to the place of suing may be entertained by an appellate or revisional Court, the following three conditions are essential; (i) the objection was taken in the court of the first instance; (ii) it was taken at the earliest possible opportunity and in cases where the issues are settled, at or before such settlement of the issues; and (iii) there has been a consequent failure of justice. All these three conditions must co-exist."
19. In the Special Secretary to the Government of Rajasthan (Finance), Jaipur, Rajasthan v. Vedakantara Venkataramana Seshaiyer (AIR 1984 AP 5), the Division Bench of the Andhra Pradesh High Court, in para 22 of the judgment, held that :--
"In view of the authoritative pronouncement of the Supreme Court that all the three "conditions must co-exist" we are of the opinion that the appellants have not made any attempt to prove how there is any failure of justice within the meaning of the said expression in Section 21 of Civil .Procedure Code."
On this ground alone the objection relating to jurisdiction is liable to be rejected."
20. In Ramesh Chander v. Bhushan Lal (AIR 1984 Punj & Har 345) the learned single Judge of the Punjab and Haryana High Court, in para 9 of the judgment, held :--
"It will be seen that the case remained pending in the Court of Subordinate Judge II for over a year and a half. Both the parties examined witnesses and adduced evidence without any reservation. It was only on the conclusion of the evidence that objection to the evidence already recorded was sought to be taken. This was by no means the earliest opportunity that the petitioner had of raising it and what is more, counsel for the petitioner could point to no failure of justice, caused by the recording of evidence by the Subordinate Judge II Class."
21. In R. Section D. V. FinanceCo. Pvt. Ltd. v. Shree Valiabh Glass Works Ltd. (AIR 1993 SC 2094) the Supreme Court again took the same view and reaffirmed the law laid down by the Supreme Court in Koopilan Unseen's daughter Pathumna v. Koopilan Unseen's son Kuntalan Kutty died by L.Rs. (AIR 1981 SC 1683).
22. Keeping in view the provisions of Section 21(2) of the Code of Civil Procedure and the law laid down by the Supreme Court in the judgments cited above, we have- to see: whether the objections raised by a learned counsel for the appellant regarding admissibility of the evidence recorded by the Civil Judge is sustainable or not?
22A. In view of Section 21(2) of the Code of Civil Procedure, the absence of pecuniary jurisdiction is not a case of lack of inherent jurisdiction which could render the proceedings before the Civil Judge in nullity. Objection regarding want of pecuniary jurisdiction is only technical in nature and recording of the evidence by the Civil Judge, Churu is merely an irregularity in procedure. According to Section 21(2), no objection to the competence of the Court with respect to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional Court unless such objection (i) was taken in the Court of the first instance at the earliest opportunity; (ii) where issues are settled, at or before such settlement; and (iii) unless there has been a consequent failure of justice.
23. In the present case, it is true that the objection was taken by the defendant-appellant in the Court of the first instance but not before the issues were settled. It was taken at the time of arguments when the case already stood transferred to the Court of the District Judge, Churu, who had the jurisdiction to try the suit. The question, which, therefore, requires consideration is: whether there is any failure of justice in the present case while recording the evidence by the Civil Judge? Recording of the evidence by the learned Civil Judge is not a case of inherent lack of jurisdiction. It was for the defendant-appellant, who is challenging the legality of the evidence recorded by the Civil Judge, to show that by recording the statement of the witnesses by the Civil Judge, the failure of justice has been resulted; but the defendant-appellant failed to prove any failure of justice in this case.
24. Having consented to examine the plaintiffs witnesses and then cross-examining those witnesses, producing his own evidence without any objection, the defendant deprived himself of the right to question the legality of the statements of the witnesses recorded by the learned Civil Judge. He is, therefore, estopped from challenging the authority and the jurisdiction of the Civil Judge, Churu in recording the statement of the witnesses and the admissibility of those statements in the evidence in the suit.
25. Section 21(2) of the Code of Civil Procedure gives a statutory recognition to the principle that the objection regarding pecuniary jurisdiction can be waived. If the defendant waives this objection by his con-duct or otherwise then subsequently on account of this waiver he can be precluded from taking any such objection. It was open to the defendant-appellant to have questioned the authority and jurisdiction of the Civil Judge to record the statement of the witnesses when the witnesses were produced before him but the defendant participated in the recording of statement of the witnesses and, also, participated in the proceedings for about four years during the period when the suit remained pending before that Court. The long and continued participation of the appellant for more than four years without any protest regarding the jurisdiction, cross-examining the plaintiffs witnesses and producing his own witnesses, amount to waiver of the objection. All the conditions required for accepting the objection, laid down in Section 21(2), C.P.C. are not satisfied in the present case. For the acceptance of the objection regarding pecuniary jurisdiction, all the three conditions laid down in Section 21(2), C.P.C. must co-exist. In the present case, only the first condition of raising the objection in the Court of first instance, was satisfied but so far as the other two conditions, i.e., taking the objection at the earlier stage and failure of justice, are not satisfied. Unless there is a failure of justice in recording the evidence by the Civil Judge, the objection relating to pecuniary jurisdiction cannot be allowed. In this view of the matter the learned single Judge and the learned District Judge were right in overruling this objection.
26. No other ground has been raised by the learned counsel for the appellant during the course of arguments.
27. In this view of the matter, we do not find any merit in this appeal and the same is hereby dismissed.