Madhya Pradesh High Court
Brihaspati Bai Wd/O Chintaram Swarnkar vs Mohanlal Chintaram Swarnkar And Ors. on 23 April, 1994
Equivalent citations: 1994(0)MPLJ878
Author: P.P. Naolekar
Bench: P.P. Naolekar
ORDER P.P. Naolekar, J.
1. This order shall also govern disposal of analogous case M.A. No. 213/94.
2. The facts relevant for the consideration of the question involved in this case are in brief, on 19-2-1980 the plaintiff-appellant filed a suit for declaration of the title and permanent injunction against the respondents regarding suit house and the open land appertinent thereto, situated at Sadar Bazar, Ram Mandir, Durg. The plaintiff-appellant claimed exclusive title to the suit property on the basis of will executed by her husband Chintaram on 19-1-1979 (Ex. P19) whereas the case of the defendants-respondents 1 to 5 is based on a will executed by Chintaram in their favour of the suit property on 4-12-1979 (Ex. D1). The suit was valued at Rs. 300/- for the purposes of declaration and injunction and fixed Court fee of Rs. 30/- for declaration and Rs. 30/- for permanent injunction was fixed. The civil suit was filed in the Court of Civil Judge, Class II, Durg.
3. First, second and third respondents entered appearance and filed their written statement raising amongst other questions on the ground that the suit as it is filed is not maintainable in the Court of Civil Judge, Class II as the value of the suit property is Rs. 1.50 lacs. It is said that the Court does not have pecuniary jurisdiction to try the suit and the Court fee paid is inappropriate. On 5-9-1980 preliminary issue was framed by the Court regarding the Court fee paid on the plaint and the jurisdiction of the Court to try the suit. After some dates on 25-1-1989 the Court took up the matter and had passed an order that the preliminary issue framed by the Court shall be decided along with other issues on merits.
4. Aggrieved by the said order of deciding the preliminary issue along with other issues the first to third respondents have filed revision petition before the District Judge which was registered as Civil Revision No. 1/89. By order dated 13-9-1989 the District Judge gave direction, for trial of the preliminary issue, before entering into the merits of this case. As per the directions of revisional court the Civil Judge, Class II on 28-9-1989 decided the preliminary issue and has held that the Court has jurisdiction to try the suit. The Court fee paid on the plaint is proper. Thereafter the matter was taken up for final disposal. After recording evidence and hearing arguments, by judgment and decree dated 18-7-1991 the suit filed by the plaintiff was decreed in toto.
5. Aggrieved by this judgment and decree passed by the trial Court respondents 1 to 3 preferred an appeal. On 11-10-1991 the appellate Court had set aside the judgment and decree passed by the trial Court only on the ground that the trial Court had no pecuniary jurisdiction to hear the suit and that the Court fee paid by the plaintiff-appellant was not proper. However, the appellate Court had decided all other issues on merits in favour of the plaintiff. The matter had been remanded back with the direction to the trial Court that the plaint be returned to plaintiff for presentation of the suit before proper court, having jurisdiction to adjudicate the matter in dispute having regard to pecuniary jurisdiction of the Court. The appellate Court has remanded the matter to the trial Court after setting aside the judgment and decree of the trial Court on the ground that the trial Court had no pecuniary jurisdiction to try the civil suit as it was filed by the plaintiff, but all other issues have been decided in favour of the plaintiff.
6. The plaintiff-appellant and 4th respondent to 6th respondent filed two separate second appeals against that judgment. The appeals were registered as S.A. Nos. 419/91 and 458/91, an objection was raised by the respondents that the second appeals under Section 100 of the Code of Civil Procedure are not maintainable. The High Court has heard the matter on preliminary objection and has held that the second appeal as it is filed is not maintainable. It is an order of remand made by the lower appellate Court and therefore, appeal under Order 43, Rule 1(u), Civil Procedure Code is competent and not the second appeal under Section 100 of the Code of Civil Procedure. The High Court has given directions that the S.As. Nos. 419/91 and 458/91 shall stand struck off from the institution register of second appeals. Instead, they shall be registered as Miscellaneous Appeals upon an appropriate application being filed on behalf of the appellants. The appellants in two different appeals have moved an application for conversion of the second appeals into miscellaneous appeals and that is how the two appeals were registered as M.As. Nos. 212/94 and 213/94.
7. It is argued by the counsel for the appellant that the judgment of setting aside judgment and decree of the trial court by the lower appellate Court, on the ground that the trial Court had no pecuniary jurisdiction is not in accordance with law and for the said purpose relied on the provisions of Section 11 of the Suits Valuation Act, 1887 and Section 21(2) of the Code of Civil Procedure. On the other hand, it is argued by the counsel for the respondents that in view of the decision given by the High Court at an interim stage the finding of the appellate Court that the trial court had no pecuniary jurisdiction cannot be disturbed and it is only the order of remand made by the appellate Court to the trial Court can be called in question in this appeal in view of the fact that the High Court had allowed filing of the appeal only under Order 43, Rule 1(u), Civil Procedure Code.
8. I propose to take up the objection raised by the respondent No. 1. First, it is pertinent to see that the High Court in paragraph 6 has said that it would have been open to the lower appellate Court to have itself returned the plaint for proper presentation to the proper Court under Order 7, Rule 10, Civil Procedure Code and in such a case its order would have been appealable under Clause (a) of Order 43, Rule 1, Civil Procedure Code. But instead of following that course the lower appellate Court has made a remand to the trial Court. As the trial had already taken place and the plaint is being returned for presentation to proper Court by the trial Court under the order of the first appellate Court, remand would be covered by Rule 23A of Order 41, Civil Procedure Code. Thus the High Court was considering the question of provisions under which the appeal shall lie under Order 43, considering the nature of the order passed by the lower appellate Court. The High Court has directed that an appeal could only be filed under Order 43, Rule 1(u), Civil Procedure Code, because in view, of the High Court the lower appellate Court has only passed an order of remand after setting aside the judgment and decree of the trial Court. Since it was a remand order Miscellaneous Appeal is maintainable under Order 43, Rule 1(u), Civil Procedure Code. It is open for this Court to consider whether the question of pecuniary jurisdiction was correctly decided by the lower appellate Court.
9. Under Section 11 of the Suits Valuation Act, 1887 the question of jurisdiction of the Court to try the suit or appeal on the ground of over valuation or under valuation of the suit or appeal shall be entertained by the appellate Court only if (i) the objection was taken in the Court of first instance; (ii) before the hearing at which issues were first framed and recorded or in the lower appellate Court in the memorandum of appeal to that Court, and (iii) that if the appellate Court is satisfied for the reasons to be recorded by it in writing, that the suit or appeal was over valued or under valued and that the over valuation or under valuation has prejudicially affected the disposal of the suit or appeal on its merits.
10. Section 21 was amended by insertion of Section 21(2) of the Code of Civil Procedure by Civil Procedure Code Amendment Act, 1976. Sub- section (2) of Section 21 requires that no objection as to the competence of a Court with reference to the pecuniary limits of the jurisdiction shall be allowed by the lower appellate Court or revisional Court unless such objection was taken in the court of first instance at the earliest possible opportunity and before the settlement of issues and further the Court has to see that trial has resulted in consequent failure of justice. In Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, the Supreme Court has considered the effect of Section 11 of the Suits Valuation Act on the question of the consideration of the pecuniary jurisdiction of the trial Court by the appellate Court and it has been held that:
"The policy underlying Sections 21 and 99, Civil Procedure Code 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. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act."
The Supreme Court has held that although the decree passed without jurisdiction is nullity and invalidity could be set up whenever and wherever it is sought to be enforced or relied upon but by virtue of Section 11 of the Suits Valuation Act the question of pecuniary jurisdiction of the trial Court shall be material, for the purposes of setting aside the judgment and decree passed by the trial Court, if such decision has resulted prejudice on merits.
11. Pathumma v. Kuntalan, AIR 1981 SC 1683, and in R.S.D.V. Finance Co. Ltd. v. Shree Vallabh Glass Works Ltd., AIR 1993 SC 2094, the Supreme Court while considering Section 21(1) of the Code of Civil Procedure, which is similar to that of Sub-section (2) of Section 21 of the Code of Civil Procedure has held that by virtue of Section 21 no objection as to the place of suing 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 cases where issues are settled, at or before such settlement and there has been a consequent failure of justice. All these three conditions are required to be co-exist before the objection can be permitted by the appellate Court as to the jurisdiction of the trial Court to try the suit.
12. The counsel for the respondents has placed reliance on the Single Bench decision of this Court in Suresh Kumar v. The State of Madhya Pradesh, 1974 MPLJ 903, wherein it has been held that the defect of jurisdiction that pecuniary or territorial or whether it is in respect of the subject matter of the action strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of the parties and this is subject to the provisions of Section 11 of the Suits Valuation Act which provides for two Exceptions, one of them is : Such objection was taken in the trial court. On the entire reading of the judgment I find that Court has not considered the third aspect of Section 11 of the Suits Valuation Act that before entertaining the objection of the pecuniary jurisdiction of the trial court, the appellate Court has to record the finding that the judgment delivered by the trial Court has resulted in failure of justice and that the judgment delivered by the trial Court has prejudicially affected the disposal of appeal or suit on its merits. The another decision relied on by the counsel for the respondents reported in Jankilal v. Bechu Singh, 1984 MPLJ Note 63, has also missed to consider third aspect of Section 11 of the Suits Valuation Act, whether the decision rendered by the trial Court without having pecuniary jurisdiction has resulted in passing of the judgment which has prejudicially affected the suit or appeal on its merits. Both the cases relied on Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, but this aspect of the case has not been considered which has been specifically taken note of by the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340. A case reported in R.S.D.V. Finance Co. Ltd. v. Shree Vallabh Glass Works Ltd., AIR 1993 SC 2094, has made it explicitly clear that the decree of the trial Court can be set aside on the ground of question of jurisdiction of the Court only if three conditions have co-exist.
13. The respondents have raised question of pecuniary jurisdiction of the trial Court to try the suit at the first instance and before the issues were framed. The appellate Court has also taken note of this situation while deciding the question of jurisdiction of the trial Court. However, the entire judgment of the appellate Court does not indicate that the first appellate Court has directed itself as to the question of whether under valuation of the suit and consequent trial of the suit and delivery of the judgment has prejudicially affected the disposal of the suit on merits or that judgment delivered by the trial Court has resulted in consequential failure of justice. No such finding has been recorded by the appellate Court. It is now well settled that unless lack of pecuniary or territorial jurisdiction results in failure of justice the judgment of the trial Court will not be set aside by the appellate Court on that count.
14. In the absence of any findings on application of Section 11 of the Suits Valuation Act and Section 21(2) of the Code of Civil Procedure the judgment and decree of the appellate Court in C.A. No. 37A/91 setting aside judgment and decree of the trial Court is illegal and is hereby set aside. As a result thereof the matter is remanded back to the first appeal Judge only to consider and decide question of jurisdiction exercised by the trial Court in deciding Civil Suit. No. 8A/91 in the light of the decision given in this case after hearing both the parties and pass appropriate judgment and decree. It is made clear that decisions given by the appeal Court on all other issues are not set aside. The appeal is allowed but without costs.