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Sheikh Abdur Rashid Vs. Musammat Qudratunnissa Bibi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1920All65; 57Ind.Cas.134
AppellantSheikh Abdur Rashid
RespondentMusammat Qudratunnissa Bibi
Excerpt:
appeal, forum of - suit originally valued at rs. 7,500--value, subsequently reduced to rs. 2,500--appeal, whether lies to high court or district judge's court. - - 7,500. that was a perfectly true statement of fact. 2,500 and would thus have satisfied the full claim of the plaintiff as put forward in the amendment. 5,000, is a good objection, and that the appeal should have gone to the court of the district judge......the portion due to the daughter of the deceased lady. thereupon the plaintiff brought the present suit claiming re. 7,600, namely, rs. 2,500 for herself and rs. 5,000 for the minor daughter, that is the daughter of the deceased lady. during the pendency of the suit the minor daughter died and as the father was the sole heir to that minor daughter, the rs. 5,000 became merged and there left only outstanding the question of rs. 2,500 between the plaintiff and the defendant. the plaint as originally framed was, as we have said, for rs. 7,500 but an application was made that the plaint might be amended in the altered circumstances and the original plaint with the amendments are to be found at page 5 of the court paper-book a reference to the plaint shows that in the original paragraph 9.....
Judgment:

1. To this appeal Mr. Iqbal Ahmad takes a preliminary objection. The claim in the lower Court was by a relative of a deceased Muhammadan lady who claimed a share in the dower of that deceased Muhammadan lady. The dower-debt, which was a deferred one, was said to be Rs. 10,000 and of that the husband was entitled to one-fourth, the plaintiff in this suit entitled to another one-fourth and the daughter of the deceased entitled to the remaining half. The respondent applied for a succession certificate in respect of her share of Rs. 2,500, but she was met with the objection that succession certificates cannot be granted for fractional shares of a debt and it, therefore, became necessary for her to obtain a succession certificate for Rs. 7,500, which was as to Rs 2,500 the amount alleged by her to be personally due to her and as to Rs. 5,000 the amount said to be the portion due to the daughter of the deceased lady. Thereupon the plaintiff brought the present suit claiming Re. 7,600, namely, Rs. 2,500 for herself and Rs. 5,000 for the minor daughter, that is the daughter of the deceased lady. During the pendency of the suit the minor daughter died and as the father was the sole heir to that minor daughter, the Rs. 5,000 became merged and there left only outstanding the question of Rs. 2,500 between the plaintiff and the defendant. The plaint as originally framed was, as we have said, for Rs. 7,500 but an application was made that the plaint might be amended in the altered circumstances and the original plaint with the amendments are to be found at page 5 of the Court paper-book A reference to the plaint shows that in the original paragraph 9 there is the definite claim for Rs. 7,500, then follows the amended paragraph 9(a), which sets out that the minor daughter died after the institution of the suit, that the husband is alone the heir and that the sum of Rs. 5,000 had, therefore, passed across to him. The important words are as follows: 'Now Rs. 2,500 only is due to plaintiff against the defendant.' That means exactly what it says and when you come to consider what was the prayer which followed on that allegation, it is seen that the prayer has been amended and that instead of the relief originally asked for which was a decree for the recovery of Rs. 7,500, the relief prayed is for the recovery of Rs. 2,500, There is a second claim which is on its face rather singular until one appreciates the circumstances. The second claim is a prayer that there may be superadded to the Rs. 2,500 a decree awarding the costs, not on the basis of Rs. 2,500, but on the basis of Rs. 7,500, and that has been explained to UP, and the explanation is somewhat as follows:--A succession certificate for Rs. 7,500 had to be obtained and a suit for that amount brought and fees paid on that valuation and inasmuch as those things had been done and were occasioned by the resistance of the defendant, the plaintiff, when the suit had been reduced in value to Rs. 2,500, nevertheless thought that it would be right and proper that costs should be awarded on the original amount. Therefore, she asked the Court to make an award giving her costs on a higher scale than would ordinarily attach. Mr. O'Conor has taken the point that paragraph 11 of the plaint has remained unaltered from the commencement of the action and in that he is quite right. Paragraph 11 runs as follows:-- 'The suit has for purposes of the jurisdiction of the Court and the payment of the Court-fee been laid at Rs. 7,500. ' That was a perfectly true statement of fact. For purposes of the jurisdiction of the Court it had been laid at Rs. 7,500, for the payment of the Court-fee it was estimated at Rs. 7,500, also of course at the time when paragraph 11 was drafted, Rs. 7,500 was the amount the plaintiff sought to recover. Before the case came on for hearing, circumstances had so altered as to reduce the value of the subject-matter of the suit to Rs. 2,500. A very simple illustration makes it quite conclusive. Suppose at the moment when the Counsel for the plaintiff had got up to open the case his opponent had said, the defendant is not going to continue this litigation. He will pay up that which is demanded. He would then have paid. Rs. 2,500 and would thus have satisfied the full claim of the plaintiff as put forward in the amendment. In these circumstances we think that the preliminary objection; which is that an appeal cannot lie to this Court because at the hearing in the Court below the subject-matter of the suit was less than Rs. 5,000, is a good objection, and that the appeal should have gone to the Court of the District Judge. We, there-, fore, uphold the objection and direct that the memorandum of appeal be returned to the appellant for presentation in the proper Court. The respondent will have her costs of the appeal.


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