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T. Shivlal and ors. Vs. Balaram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 350 of 1974
Judge
Reported inAIR1976AP78
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 7, Rule 10 - Order 41, Rule 22, Order 41-A - Order 43, Rule 1 and 2; Andhra Court-fees and Suits Valuation Act, 1956 - Sections 11 (3)
AppellantT. Shivlal and ors.
RespondentBalaram and ors.
Appellant AdvocatePrabhakar Rao Kulkarni, Adv.
Respondent AdvocateUpendralal Waghray, Adv.
Excerpt:
.....11 (3) of andhra court-fees and suits valuation act, 1956 - appeal can be preferred by either party against order returning plaint as per order 43 rule 1 (a) - plaintiffs preferred appeal since they were aggrieved by order returning plaint relating to fixation of market value of suit property - defendants though were not aggrieved had not filed appeal - defendants were only aggrieved by order fixing rate of suit land less than rate as alleged by them - when no appeal filed no right to file cross-objections - defendants were at liberty to contend before appellate court regarding fixation of rate of suit land as per order 41 rule 22. - - thus, the plaintiffs as well as the defendants want to attack the finding of the assistant judge......and injunction against the petitioners-defendants. they valued the suit land at re. 1 per square yard. the defendants took objection to that valuation in their written statement and stated that the market value of the suit land is rs. 30 per square yard.3. the trial court, i.e., the 2nd assistant judge, city civil court, hyderabad, framed issue no. 4, viz., 'whether the court-fee paid is not sufficient and whether this court has no pecuniary jurisdiction to try the suit?' the trial court first took up this issue and recorded the evidence and came to the conclusion that the suit property has to be valued at the rate of rs. 10 per square yard and if this value is adopted, the court has no jurisdiction and the court-fee paid is not sufficient. in view of the matter, the 2nd.....
Judgment:
ORDER

1. The point raised in the revision petition is whether cross-objection can be preferred in a C.M.A. filed under the Order 43, Rule 1 (a) C.P.C. The lower appellate court held that cross-objections cannot be preferred in such an appeal and rejected the memorandum of cross-objections filed in C.M.A. No. 131 of 1973.

2. The learned counsel for the petitioner submits that the cross-objections, a few facts are necessary to be stated. The petitioners are the defendants. The respondents-plaintiffs filed a suit for declaration and injunction against the petitioners-defendants. They valued the suit land at Re. 1 per square yard. The defendants took objection to that valuation in their written statement and stated that the market value of the suit land is Rs. 30 per square yard.

3. The trial Court, i.e., the 2nd Assistant Judge, City Civil Court, Hyderabad, framed issue No. 4, viz., 'whether the court-fee paid is not sufficient and whether this Court has no pecuniary jurisdiction to try the suit?' The trial Court first took up this issue and recorded the evidence and came to the conclusion that the suit property has to be valued at the rate of Rs. 10 per square yard and if this value is adopted, the Court has no jurisdiction and the court-fee paid is not sufficient. In view of the matter, the 2nd Assistant Judge, by his order dated 16th July, 1973 returned the plaint under Order 7, Rule 10, C.P.C. for presentation before the proper Court. The plaintiffs, aggrieved by this order, preferred C.M.A. No. 131 of 1973 in the court of the Chief Judge, City Civil Court, Hyderabad. In that C.M.A. the defendants filed cross-objection S.R No. 9910/73. In the cross-objection, the valuation as fixed by the 2nd Assistant Judge and consequently the sufficiency of the court-fee paid by the plaintiffs were attacked on the ground that the fixation of the value of the suit property at Rs. 10 by the Assistant Judge was not correct and it must be at the rate of Rs. 30 per square yard. At the S.R. stage, the office took up the objection that the cross-objections are not maintainable. Therefore, the appellate Court by the order dated 19th October, 1973, agreed with the office objection and rejected the cross-objections. The ground stated in the order was that the appeal was filed under Order 43, Rule 1 (a) C.P.C. The appeals preferred under Order 43 C.P.C. are independent of the appeals preferred under Order 41, C.P.C. and therefore the provisions of Order 41, Rule 22, C.P.C. are not applicable to the appeals filed under Order 43, C.P.C.

4. The learned counsel for the petitioners contended that the lower Court erred in holding that the provisions of Order 41 C.P.C. are not applicable to the appeals filed under Order 43 of the Civil Procedure Code. He referred to Order 43, Rule 2 which specifically refers to the application of the rules under Order 41, Rule 2, C.P.C. reads thus :--

'The rules of Order 41 and of Order 41-A shall apply, so far as may be, to appeals from the orders specified in Rule 1 and other orders of any Civil Court from which an appeal to the High Court is allowed under any provision of law :

Provided that in the case of appeals against interlocutory orders made prior to decree, the Court which passed the order appealed from shall not send the records of the case unless an order has been made for stay of further proceedings in that Court.'

5. It is thus clear that all the rules under Orders 41 and 41-A, C.P.C., are made applicable as far as possible to appeals from the orders specified in R. 1 of Order 43. To this extent the order of lower Court is wrong. But it has to be seen whether Order 41, Rule 22, C.P.C. would apply in the instant case.

6. In the case on hand, the Assistant Judge, while deciding the value of the suit property, fixed the rate at Rs. 10 per square yard. By filing the appeal, the plaintiffs want to challenge the fixation of the value at Rs. 10 per square yard and contend that the value is only Re. 1 per square yard and the lower Court was not justified in putting the value of the land at Rs. 10 per square yard. The defendants filed cross-objections to the effect that the fixation of the value of the suit land by the Assistant Judge, at Rs. 10 per square yard is not correct and, in fact it must be fixed at Rs. 30 per square yard. Thus, the plaintiffs as well as the defendants want to attack the finding of the Assistant Judge. When it is open to the plaintiffs to attack the finding of the Assistant Judge that the rate fixed by him is not correct, it is equally open to the defendants to contend that the value fixed by the Asst. Judge is too low and it must be fixed at the rate of Rs. 30 per square yard. Thus the defendants under Order 41, Rule 22, C.P.C. can attack the finding of the trial Court with regard to the fixation of the rate. Therefore, the only point to be considered is, whether the cross-objections as such could be filed or not. It is contended by the learned counsel for the respondents that cross-objections could be filed only when a right to appeal accrues to the party and in the instant case the right of appeal has not accrued to the defendants as the plaint was only returned and hence, they could not file an appeal against an order returned the plaint to be presented in a proper Court.

7. To find out who could file an appeal against the order returning the plaint, the relevant provision in the Civil Procedure Code is Order 43, Rule 1 (a) which reads as under :

'1. An appeal shall lie from the following orders under the provisions of Section 104, namely :--

(a) an order under Rule 10 of Order VII returning a plaint to be presented to the proper Court.'

Order VII, Rule 10 is in the following terms :

'Rule 10 (1) The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

(2) On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.'

Thus, Order 43, Rule 1 (a) C.P.C. provides that an appeal can be preferred against an order returning the plaint. Further, there is nothing mentioned in clause (a) that only the plaintiff can file an appeal against the order returning the plaint. Therefore, even the defendant, if he is aggrieved by the order of returning the plaint, is entitled to file the appeal. But the point in this case is whether the petitioners, who are the defendants, can file cross-objections in the appellate Court in the appeal preferred by the plaintiffs against the order returning the plaint. As stated earlier, either party can prefer an appeal against an order returning the plaint. The plaintiffs preferred the appeal since they were aggrieved by the order returning the plaint. The petitioners herein, i.e., the defendants in the suit, are not aggrieved by the order returning the plaint for being presented in the sub-Court. The petitioners are only aggrieved with regard to the fixation of the market value of the suit property. To put it differently, the defendants have no grievance against the order returning the plaint. They are only aggrieved with regard to that portion of the order fixing the value of the suit land at Rs. 10 per square yard instead of at Rs. 30 per square yard as alleged by them. Thus they have no cause to file an appeal against the final order returning the plaint for being presented in the proper court. When no appeal could be filed no cross-objections could be preferred. Therefore, it could not be said that the lower Court erred in holding that the petitioners herein could not as such file cross-objections. But, undoubtedly, the defendants are at liberty to contend before the appellate court in the appeal preferred by the plaintiffs that the value of the suit land ought to have been fixed at Rs. 30 per square yard on the basis of the evidence on record as stated earlier.

8. The learned counsel for the petitioner defendants further contended that apart from pressing into service Order 41, Rule 22, C.P.C. it is open to the petitioners to file an application under Section 11 (3) of the Andhra Court Fees and Suits Valuation Act, 1956, bringing to the notice of the appellate court the insufficiency of the court-fees paid and praying for determination of the correct court-fees payable. Therefore, if for any reason the cross-objections are not maintainable it is submitted that the cross-objections may be treated as an application filed under Section 11 (3) (a) of the Andhra Court Fees and Suits Valuation Act. This contention was not raised before the appellate court and is raised for the first time in this revision. The learned counsel for the respondents contended that it is open to the defendants to raise this point before the proper Court in which the plaint would be presented. Further it is contended that there is no order passed by the lower court regarding the court-fees payable on the plaint. Here the point involved is not as to under which provision of law the court-fees had to be paid. In the absence of any such order the provisions of Section 11 (3) of the Court Fee Act could not be attracted. In the revision petition it is not necessary to go into the point. It is already held that in the appeal pending against the order of returning the plaint questioning the valuation fixed by the lower court, it is open to the defendants to contend that the rate fixed by the lower court is not correct and higher rate could be fixed. Payment of court-fees undoubtedly depends upon the value of the suit property. When such is the case it is unnecessary to consider whether the provisions of Section 11 (3) of the Andhra Court Fees and Suits Valuation Act need to be or could be invoked in this case.

9. In the result, the appellate court would go into the matter and determine the real value of the suit property on the material available on record. With the above direction, this revision petition is dismissed but interpretation he circumstances there will be no order as to costs.

10. Petition dismissed.


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