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Mohd. ShahbuddIn and anr. Vs. Ahmed Saifulla HussaIn and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 161 of 1973
Judge
Reported inAIR1976AP199
ActsCode of Civil Procedure (CPC), 1908 - Sections 100 - Order 7, Rule 11, Order 14, Rule 1 and Order 18, Rule 1; Andhra Pradesh Court-fees and Suits Valuation Act, 1956 - Sections 11(2)
AppellantMohd. ShahbuddIn and anr.
RespondentAhmed Saifulla HussaIn and anr.
Appellant AdvocateM.S. Narayana Charyulu, Adv.
Respondent AdvocateAsia Ahmed Khan, Adv.
Excerpt:
.....for seeking amendment to schedule which was ordered after sale deed passed - petition included suit property - plaintiff not affected by compromise decree obtained in suit as he acquired title before schedule ordered to be amended - held, sale deed not hit by doctrine of lis pendens. (ii) court fees - issue on court fees to be heard and disposed off before hearing suit under order 18 - court if concluded that fee paid was not sufficient it must give opportunity to party to pay deficit court fee - plaint to be rejected if deficit court fee not paid. - - i am however, not satisfied that the judgment of the trial court should be held to be illegal and without jurisdiction merely because it considered the issue of court-fee along with the other issues and directed the plaintiff to..........mohd. ghose against haziz bi and under the compromise decree mohd. ghouse became entitled to the suit property. the plaintiff purchased the property with full knowledge of the claim of mohd. ghouse. he was not a bona fide purchaser for value without notice. his purchase was affected by the doctrine of lis pendens. the prior agreement was not true ad was ante-dated. the first defendant having purchased the decree for valuable consideration from mohd. ghouse under a registered sale-deed dated 25-11-1960 he was entitled to the suit property which was included in the decree.2. the trial court held that the agreement of sale in favour of the plaintiff dated 10-3-1955 was true. it also held that in the plaint as originally fled on 5-8-1955 suit property was not included in the schedule. but.....
Judgment:

1. Defendants 1 and 2 in O.S. 189 of 1966 on the file of the Second Assistant Judge, City Civil Court, Hyderabad are the appellants. The first respondent herein filed the suit for an injunction restraining the defendants from interfering with his possession of a house 1-2-524/1 situated at Domalaguda, Hyderabad. His case was that the site in which the house is situated of the extent of 500 square yards belonged to one Mohd. Haneef. On his death his widow Haziz Bi became entitled to the property. She constructed a compound wall after obtaining permission of the Municipality. Thereafter, on 10-7-1955 she executed an agreement of sale of the site together with the compound wall in favour of the plaintiff and received an advance of Rs.250/- and handed over possession of the land on the same day to the plaintiff. Subsequently, on 12-7-1955 she executed a sale deed for Rs.3,000/- in favour of the plaintiff. The plaintiff after obtaining permission from the Municipal Corporation constructed a house on the site. One Mohd Ghouse claiming to be the brother of Mohd. Haneef filed a suit against Haziz Bi for partition of the property belonging to Mohd. Haneef. A compromise was entered between Mohd. Ghouse and Haziz Bi and a decree was passed in terms of that compromise. But the plaintiff was not a party to the said suit or to the compromise. The land purchased by the plaintiff was not included in that suit, but the first defendant describing himself to be purchase of the decree from Mohd. Ghouse, sought to interfere with the possession of the plaintiff and brought a warrant from the Court for delivery of possession of the suit house. The plaintiff thereupon filed the suit for injunction restraining the defendant from interfering with the possession of the house, his contention being that the house was not the subject-matter of the suit or the compromise decree in that suit. D-2 and D-3 did not claim any interest in the property. The first defendant contented that the property was included in the suit filed by Mohd. Ghose against Haziz Bi and under the compromise decree Mohd. Ghouse became entitled to the suit property. The plaintiff purchased the property with full knowledge of the claim of Mohd. Ghouse. He was not a bona fide purchaser for value without notice. His purchase was affected by the doctrine of lis pendens. The prior agreement was not true ad was ante-dated. The first defendant having purchased the decree for valuable consideration from Mohd. Ghouse under a registered sale-deed dated 25-11-1960 he was entitled to the suit property which was included in the decree.

2. The trial Court held that the agreement of sale in favour of the plaintiff dated 10-3-1955 was true. It also held that in the plaint as originally fled on 5-8-1955 suit property was not included in the schedule. But Mohd. Ghouse filed a petition by which he sought to amend the schedule by incorporating Item 17 which was ordered on 12-9-1955. Even assuming that this item represented the suit property, as it was ordered to be included only on 12-9-1955, after the sale deed in favour of the plaintiff, the plaintiff was not affected by the compromise decree obtained in the suit, as he had acquired a valid title even before the schedule was ordered to be amended. I, therefore, held that the sale deed was not hit by the doctrine of lis pendens. It was also contended before it that the suit was not properly valued. This contention was accepted and the trial Court held that the suit should be valued at Rupees 3,000/- and the plaintiff was required to pay the deficit court-fee. The judgment was delivered on 27-8-1971 and the deficit court-fee was paid on 3-9-1971.

3. Defendants 1 and 2 preferred an appeal to the Additional Chief Judge, City Civil Court, Hyderabad. The lower appellate Court framed three points for determination.

1. Whether the suit property is covered by the schedule of O.S. 109/55 on the file of the Second Additional Judge, Hyderabad?

2. Whether the sale deed Exhibit A-1 is hit by lis pendens ?

3. Whether the plaintiff is entitled for the injunction as prayed for ?

It held on point 1 that the present suit property was not included in the schedule to the plaint in O.S. 19/55 even as mended. On point 2 it held that even if it was covered by the schedule the transaction of sale in favour of the plaintiff was not hit by the doctrine of lis pendens. In the result, it held on point 3 that the plaintiff was entitled to the injunction as prayed for and the same was dismissed with cost.

4. In this Second Appeal by the defendants 1 and 2 Sri Narayanacharyulu learned counsel for the appellants questioned the conclusions of the lower appellate Court. In addition, he has also raised a number of contentions which were not raised in the Courts below.

5. His first contention was that the trial Court erred in deciding the issue regarding the court-fee along with all other issues and directing the plaintiff to pay the deficit court-fee after the judgment was pronounced. He submitted that under the provisions of the Andhra Pradesh Court-fees Act, the trial Court ought to have determined the issue regarding the court-fee even before the date of the first hearing and ought to have directed the plaintiff to pay the deficit court-fee failing which it should have rejected the plaint. Inasmuch as the Court below did not follow this procedure, the judgment and decree itself was without jurisdiction and illegal. The judgment and decree passed on appeal also would therefore be illegal and void. He, therefore, submitted that on this ground alone, the matter should be remanded to the trial Court and the trial Court should be asked to follow the proper procedure, hear and issue regarding the court-fee first and then proceed to dispose of the suit. In support of this contention he draw my attention to Section 11 (2) of the Andhra Pradesh Court-fees Act which is in the following terms:

'11 (2). Any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule to the Civil Procedure Code, 1908, Central Act 5 of 1908. If the Court decides that the subject-matter of the suit is not properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the subject-matter of the suit shall be valued in accordance with the court's decision and the deficit fee shall be paid. If within the time allowed the subject-matter is not valued in accordance with the Court's detention or if the deficit fee is not paid, the plaint shall be rejected and the Court shall pass such order as it deems just regarding cost of the suit.'

In this case, he submitted that instead of following this procedure the trial Court decided all the issues together and directed the deficit court-fee to be paid after the judgment in the whole case was pronounced. This, according to his submission, renders the entire judgment illegal and without jurisdiction. In the first place it is to be seen that this contention was not raised in the grounds of appeal in the lower Court, nor was it argued before the lower appellate Court. It was also not raised in the grounds of appeal here. This contention was raised for the first time during the arguments before me. However as this is a pure question of law I permitted the learned counsel to make his submissions. I am however, not satisfied that the judgment of the trial Court should be held to be illegal and without jurisdiction merely because it considered the issue of court-fee along with the other issues and directed the plaintiff to pay the deficit court-fee after the judgment was delivered. It is true that the proper procedure to be followed is that the issue on court-fee should be heard and disposed of before the hearing of the suit under Order 18, Civil P.C. and if the Court comes to the conclusion that the court-fee paid is not sufficient it must give an opportunity to the plaintiff to pay the deficit court-fee and if he does not do so, it should reject the plaint. It is unfortunate that in spite of this clear provision in Section 11 (2) of the Court-fees Act, the Courts below are still continuing the habit of deciding all issues including the issue of court-fee at one and the same time. But it does not follow that the non-observation of the provisions of Section 11 (2) of the Court-fees Act would render the judgment illegal and without jurisdiction. Though all the issues were considered together the judgment can be regarded as a decision on the issue of the court-fee. In the first instance and giving an opportunity to pay the deficit court-fee, the decision regarding the other issues to come into operation after the plaintiff pays the deficit court-fee. The learned counsel for the appellant relied upon a decision of this Court in C.R.P. No. 492/72 dated 7-8-1972 reported in A.P. High Court short notes p. 304. In that case, a suit was filed with inadequate court-fee. The trial Court tried all the issues including the issue of court-fee and found against the plaintiff on the main issues and dismissed the suit. The plaintiff preferred an appeal. The appeal was not numbered on the objection raised regarding the court-fee paid on the memorandum of appeal. The appellate Court called upon the plaintiff to pay the deficit court-fee both in the trial Court and the appellate Court and granted time for payment. This order was challenged by the plaintiff who contented that the suit was valued correctly. The learned Judge, who heard the revision petition, observed that the trial Court had not followed the procedure prescribed under Section 11 (2) and it was imperative that the trial Court ought to have decided the question of court-fee first before trying the suit. If the suit was not properly valued and the court-fee paid was not correct, the court shall fix a date before which the subject-matter of the suit shall be valued in accordance with the Court's decision, and the deficit fee shall be paid. But the Court dealt with other issues and passed a decree dismissing the suit without costs. It was observed by this Court that the only jurisdiction which the Court had by reason of its finding was to direct that the subject-matter of the suit should be valued in accordance with its decision and also direct the payment of the deficit court-fee and hence the dismissal of the suit was without jurisdiction. It also observed that as the value was found to be Rs. 27,750/- the District Munsiff has no jurisdiction to try the suit and he should have directed the return of the plaint for presentation to the proper Court. In the result, the learned Judge set aside the judgment and decree of the trial Court and also set aside the order of the District Court in the unregistered appeal and directed that the suit should be taken on its file and the issue regarding the court-fee should be enquired into afresh as a preliminary issue. In my view this decision has no application to the facts of the present case. From the facts of the case relied on which have been set out above, it is clear that in that case, the trial Court having found that the court-fee was not sufficient dismissed the suit because it found all the issues against the plaintiff. It did not direct the plaintiff to pay the deficit court-fee. In this case however, the trial Court directed the plaintiff to pay the deficit court-fee and the deficit court-fee was paid. The decision in C.R.P. No. 403/72 dated 7-8-1972 (Andh Pra) is only an authority for the proposition that the Court has no jurisdiction to dismiss the suit if on the issue of court-fee it finds that the plaintiff has not paid sufficient court-fee its jurisdiction only being to direct the plaintiff to pay the deficit court-fee and if he does not do so, to reject the plaint. I do not see anything in that decision which supports the submission of the learned counsel for the appellants that if a Court tries all the issues including the issue of court-fee together and directs payment of deficit court-fee by the plaintiff, such a judgment is illegal and without jurisdiction.

6. It is further to be noted that as pointed out i Kiran Singh v. Chaman Paswan, : [1955]1SCR117 the principle that underlies Section 11 of the Suits Valuation Act is that a decree passed by a Court which would have no jurisdiction to hear a suit or appeal but for over valuation or under valuation is not to be treated as what it would be but for the section, null and void. The policy underlying Section 21 and Section 99, Civil 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. Applying this principle I am also of the view that this objection is technical objection based upon the circumstance that the trial Court heard all the issues together and directed payment of deficit court-fee after the judgment was rendered which should not be entertained in appeal as such a direction did not cause any prejudice to the defendant.

7. The learned counsel for the appellants then submitted that as the plaint had not been properly stamped, it must be treated as not having been presented at all and the decree passed on foot of such a plaint is void and no appeal need have been preferred by the defendant. This submission is closely linked with and dependent upon the first submission. As I have held that though the trial Court did not follow the procedure prescribed under Section 11 strictly, the direction to pay the deficit court-fee cannot beheld to be without jurisdiction, it follows that the payment of deficit court-fee as per the direction was proper and hence the plaint must be deemed to have been properly stamped. It is therefore, unnecessary, to consider this argument namely, Batuk Nath v. Munni Dei, 23 Ind Cas 644 = (AIR 1914 PC 65) and Phaltan Bank v. Baburao, : AIR1954Bom43 .

8. The learned counsel for the appellant also drew my attention to In Re Subrahmanyam, AIR 1955 Andh Pra (FB) where the distinction between rejection of plaint under Order 7, Rule 11 for non-payment of court-fee and the dismissal of a suit under Order 33, Rule 11 was brought out. It was observed that when a plaint is presented without proper court-fee it would be treated as if it was not filed at all. This decision is also of no assistance in view of the conclusion I have reached in the earlier part regarding the direction to pay the deficit court-fee. As the plaintiff has paid the court-fee the plaint must be deemed to have been properly presented.

9. The argument, therefore, that the decree was a nullity and hence the appellate judgment and decree also were null and void and this question can be raised in Second Appeal for the first time has to fall.

10. Dealing with the merits of the appeal the lower appellate Court has found on a consideration of the evidence that it has not been established that the suit property was the subject-matter of the suit filed by Mohd. Ghouse. It was contented that this property is the same as Item 17 which was added by way of amendment, the application for amendment having been ordered on 12-9-1955. The lower appellate Court has given sufficient reasons under point No. 1 in paragraph 10 to 21 for coming to the conclusion that Item 17 in O.S. No. 109/75 is not the present suit property. This question is a question of fact and I am not satisfied that a case is made out for interference in Second Appeal as such a conclusion has been arrived at after considering all the evidence in the case. There is, therefore, no question of the transaction of sale in favour of the plaintiff being hit by the doctrine of lis pendens. In this view it is unnecessary to consider the further question that assuming Item 17 in the amended plaint schedule is the present suit property, whether the amendment would date back to the date of the plaint, namely 5-8-1955, it was in pursuance of agreement dated 10-7-1955 and therefore, the transaction is not affected by lis pendens. Both the Courts have held that the agreement is true and valid. It is, however, unnecessary to consider in view of the agreement being prior to the suit, though the sale was subsequent to the suit, whether the doctrine of lis pendens would apply as I have agreed with the conclusion of the Court below that the evidence is not sufficient to show that the suit property is covered by the schedule to the previous suit even as amended.

11. Finally, it was contended that the plaintiff has to prove his title to the suit property and he has failed to prove his exclusive title to the suit. It was submitted that even assuming that if the plaintiff's case was that the plaint property belonged to Mohd. Haneef, on the death of Mohammed Haneef his widow, Haziz Bi would only be one of the sharers under Mohammedan law and she would therefore be entitled to a share in the property and not the entire property. The plaintiff as a purchased from Haziz Bi would also be entitled only to a share. He has not, therefore, substantiated his title to the whole property and cannot, therefore, maintain the suit for injunction. This contention has no substance. As has been pointed out, possession of the entire item and not merely of a share was given to the plaintiff by Haziz Bi and the plaintiff even constructed a house thereon. Even assuming that Haziz Bi who was a co-sharer purported to see the whole item in favour of the plaintiff and given possession of the whole item to the plaintiff, the plaintiff would still be entitled to maintain his possession as against all others except the true owner. As it has been found that this property was not included in the schedule to the plaint, in suit filed by Mohd. Ghouse, the first defendant as a purchaser of the decree from Mohd. Ghouse would have no claim to the property. As against defendant I, who had no claim to be property, the plaintiff even if he is only entitled to Haziz Bi's share can maintain possession. The suit for injunction, therefore, was properly decreed.

12. In the result, the second appeal is dismissed with costs.

13. Appeal dismissed.


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