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Musammat Umme Khair Vs. Aziz Ali - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All47; 80Ind.Cas.183
AppellantMusammat Umme Khair
RespondentAziz Ali
Cases ReferredMadho Das v. Ramji Patak
Excerpt:
suits, valuation of general rule - value assigned by plaintiff--value found by court--jurisdiction, appellate, how determined--suit decided unsatisfactorily--court, inherent power of--civil procedure code (act v of 1085) section 151. - - the hearing then proceeded according to the worst traditions of the revenue courts. it is clearly a case for which section 151, civil procedure code makes provision......do so. he decided the case breezily by awarding the whole of the rs. 158--5--1 to the plaintiff. aziz ali appealed. the plaintiff met him on appeal by the plea that no appeal lay because the suit was a suit for less than rs. 100 and under section 177 of the tenancy act, an appeal in such a suit only lies to the district judge from the decree of an assistant collector of the first class, if the amount or value of the subject-matter exceeds rs. 100. the plaintiff's plea was certainly ingenious. it is to be noted, the plaintiff sued for rs. 70 and asked more if she could get it. receiving rs. 158--5--1, she then objected to the defendant's appealing because she said she only asked for rs. 70, the judge, however, refused to pay any attention to this plea and heard the appeal on the merits......
Judgment:
Stuart, J.

1. The handling of the case both by the parties and by the Courts below has been anything but satisfactory. The plaintiff Musammat Umme Khair instituted a suit in the Court of an Assistant Collector of the first class for arrears of profits. The suit was under there provisions of Section 165 of the Tenancy Act. The plaint as it stood should have been sent back for amendment, for it asserted that the mahal in question consisted of 72 sishams of which the plaintiff owned 19 of which Hamid Hasan owned 15 and Nur Jahan owned 16 and that the plaintiff was in possession of 41. The principal defendant is a certain Aziz Ali, who is never mentioned in the plaint as holding anything. The plaintiff should have been asked to be a little more explicit as to the persons against whom she made her claim. Aziz Ali was of course defendant. Aziz Ali put in an objection that he had not collected anything more than what was due to him. The plaintiff claimed Rs. 70 only but added that if anything more was due to her she should receive it. The case then went on to hearing. The Assistant Collector framed the following luminous issue. 'What is the correct amount of arrears of profit and with whom it is due.' That is all. The hearing then proceeded according to the worst traditions of the Revenue Courts. No evidence was called, not even that of the patwari, but a certain Babu Bindeshwari Pershad was appointed as Commissioner. Babu Bindeshri Pershad put in a statement which went to show that Aziz Ali had collected Rs. 158--5--1 more than his share. If this were the case a certain proportion would have been due to the plaintiff and a certain proportion to the other sharers. The Assistant Collector did not trouble to take any further evidence and refused to call Bindeshri Pershad as a witness although he was asked to do so. He decided the case breezily by awarding the whole of the Rs. 158--5--1 to the plaintiff. Aziz Ali appealed. The plaintiff met him on appeal by the plea that no appeal lay because the suit was a suit for less than Rs. 100 and under Section 177 of the Tenancy Act, an appeal in such a suit only lies to the District Judge from the decree of an Assistant Collector of the first class, if the amount or value of the subject-matter exceeds Rs. 100. The plaintiff's plea was certainly ingenious. It is to be noted, the plaintiff sued for Rs. 70 and asked more if she could get it. Receiving Rs. 158--5--1, she then objected to the defendant's appealing because she said she only asked for Rs. 70, The Judge, however, refused to pay any attention to this plea and heard the appeal on the merits. On the merits he found that Aziz Ali had been making collection both on behalf of himself and another sharer called Nur Jahan and that he had not collected in excess in respect of the two. He, therefore, dismissed the suit. The plaintiff has filed a second appeal, the first point taken being that no appeal lay to the District Judge. This is a point of some importance. This Court has undoubtedly laid down in the case of Mahabir Singh v. Behari Lal 13 A. 320 : A.W.N. (1891) 107 : 7 Ind. Dec. (N.S.) 202, that the value of the subject-matter of the suit must be taken to be the value assigned by the plaintiff in his plaint and not the value as found by the Court, unless it appears that either purposely or through gross negligence the true value of the suit has been altogether misrepresented in the plaint. This decision was affirmed in the case of Madho Das v. Ramji Patak 16 A. 286 : A.W.N. (1894) 84 : 8 Ind. Dec. (N.S.) 186. It obviously is the case that in civil suits the valuation given by the plaintiff determines the jurisdiction both originally and in appeal, but it has nowhere been laid down that where the plaintiff fixes the value at a certain minimum plus as much more as the Court may find due on the evidence, the valuation should then be taken to be the minimum value assigned by the plaintiff in the plaint and should not be taken to be the value as found by the Court. Under the peculiar conditions of the present Tenancy Act it is obvious that unless in a case of this kind the valuation be taken to be the value as found by the Court, the plaintiff is given a most unfair advantage. By putting her relief at Rs. 70 and adding that she wished as much more as the evidence disclosed, she was not confined to a relief of Rs. 70. By paying later an extra Court-fee she obtained a decree for Rs. 158-5-1. She cannot, in my opinion, be allowed thus to turn round and say that no appeal lies. She could either have taken Rs. 70 in which case no appeal would have lain or taken Rs. 158 subject to an appeal. So upon this point I agree with the learned District Judge. Bub the difficulty in the case is that the learned District Judge had absolutely no evidence before him on which he could find that Aziz Ali had been making collections on behalf of Nur Jahan. True it is urged by the Counsel for the respondent that there was no evidence upon which the suit could have been decreed. But this is not exactly correct. The statement of the Commissioner, unsatisfactory as it is, is evidence of a sort although its value has been very largely diminished by the circumstance that the Assistant Collector did not call him as a witness when requested to do so. I am thus left with a judgment of the Assistant Collector, which is about as unsatisfactory as it can be, and a decision of the lower Appellate Court, which has proceeded upon no evidence. The question is what should be done. It is clearly a case for which Section 151, Civil Procedure Code makes provision. The matter having been decided unsatisfactorily, I wipe out the whole proceedings and send the case back to the successor of the Assistant Collector to be tried over again, I trust on this occasion it will be tried more satisfactorily. Costs will follow the result.


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