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Sat Paul and anr. Vs. Jai Bhan Ananta Saini - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 17 of 1970
Judge
Reported inAIR1973P& H58
ActsCode of Civil Procedure (CPC), 1908 - Sections 21, 149, 151 and 578 - Order 7, Rule 11; Suits Valuation Act - Sections 11; Court Fees Act - Sections 12; Indian Limitation Act - Sections 5
AppellantSat Paul and anr.
RespondentJai Bhan Ananta Saini
Cases ReferredDyal Singh v. Ram Rakha
Excerpt:
.....on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept..........between the court-fee held to be proper court-fee by the lower court. even in the grounds of this appeal, objection with regard to the court-fee has not been taken in this manner; rather the objection raised is exactly in the same terms as it was raised before the first appellate court. admittedly proper court-fee in accordance with the law laid down in tarlok singh's case, air 1961 punj 426 was not paid on the appeal filed before the learned senior subordinate judge. in order to remedy this defect, civil miscellaneous no. 621 of 1971 was filled by the plaintiff respondent under sections 149/151 of the code of civil procedure, read with section 12(ii) of the court fees act and section 5 of the indian limitation act praying that the deficiency in the court fee on the memorandum of appeal.....
Judgment:

1. Jai Bhan plaintiff filed a suit for possession of 2 Kanals and 11 Marlas of land in Killa No. 615 along with 1/18th Share of the well situated in Khewat No. 515 in exercise of his superior right of pre-emption as one of one of the vendors Ananta Saini. The sale was effected for an amount of Rupees 4000/- by the vendors by a registered Sale deed on December 21, 1966. The suit was contested by the vendees on various grounds. One of the plea with which we are concerned in this appeal was that the suit was not properly valued for the purposes of court fee and jurisdiction. The trial Court upheld the plea of the defendant and found that the plaintiff should have paid an advalorem court-fee on Rs. 4,000/- the market value of the property in suit and that the value for purposes of court fee and jurisdiction could not be assessed at ten times and thirty times of the land revenue. AS the deficiency in the court fee was not made good within the time allowed by the trial court, the plaint was rejected under Order 7, Rule 11 of the Code of Civil Procedure. Feeling aggrieved from the judgment and decree of the trial court, the plaintiff filed an appeal before the learned Senior Sub-ordinate Judge, exercising enhanced appellate powers, Sangrur, and the learned Senior Subordinate Judge held that the plaint was properly valued for the purposes of court-fee and jurisdiction and accordingly remanded the case to the trial court for decision in accordance with law. It is against the said judgment and order of the learned Senior Subordinate Judge that the present second appeal has been filed by the vendees defendants.

2. Mr. H. L. Sarin, learned Counsel for the petitioner, contended that the judgment and order of the learned Senior Subordinate Judge was liable to be set aside as he had no jurisdiction to entertain the appeal and that on the valuation determined by the trial Court. the appeal lay to the learned District Judge. On the other hand, Mr. Ashok Bhan, learned Counsel while conceding that the appeal did not lie before the Senior Subordinate Judge, contended that the judgment and order of the learned Senior Subordinate Judge was not liable to be set aside merely on the ground that he had no jurisdiction to entertain the appeal, that at the best it would be a case where the plaintiff under-valued the appeal and filed the same in the court of the Senior Subordinate Judge and in this situation before any relief could be granted in favour of the appellants, it was incumbent upon them to show that the under-valuation of the appeal had prejudicially affected the disposal of the appeal on merits. In support of his contention, the learned counsel placed reliance on Section 11 of the Suits Valuation Act, relevant portion of which reads as under:--

'11. (1) Notwithstanding anything in Section 578 of the Code of Civil Procedure, an objection that by reason of the over-valuation of a suit or appeal a Court of first instance or lower appellate Court which had no jurisdiction with respect tot he suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an appellate court unless:-

(a) the objection was taken in the court of first instance at or 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, or

(b) the appellate court is satisfied for 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 there of has prejudicially affected the disposal of the suit or appeal on its merits.

(2) If the objection was taken in the manner mentioned in clause (a) of sub section (1), but the appellate court is not satisfied, as to both the matters mentioned in clause (b) of that sub-section and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower appellate Court.' The learned counsel also sought support from the decision of their Lordships of the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340.

3. After hearing the learned counsel for the parties I am of the view that there is considerable force in the contention of the learned counsel for the respondents and the decision of their Lordships of the Supreme Court in Kiran Singh's case, AIR 1954 SC 340 is a complete answer to the contention of the learned counsel for the appellants. At this stage the observations of their Lordships of the Supreme Court in Kiran Singh's case which are relevant for the decision of the point in controversy may be reproduced which read as under:--

'(6) The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of Section 11 of the Suits Valuation Act is on that position. It is fundamental principle well-established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is 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 parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was 'coram non judice' and that this judgment and decree would be nullities. The question is what is the effect of Section 11 of the Suits Valuation Act on this position.

(7) Section 11 enacts that notwithstanding anything in Section 578 of the Code of Civil Procedure an objection that a court which had no jurisdiction over a suit or appeal had exercised it by reason of over-valuation or under-valuation. should not be entertained by an appellate court, except as provided in the section. Then follow provisions as to when the objections could be entertained and how they are to be dealt with. The drafting of the section has come in--and deservedly--for considerable criticism, but amidst much that is obscure and confused, there is one principle which stands out clear and conspicuous. It is that a decree passed by a Court, which would have had no jurisidiction 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, and that an objection to jurisdiction based on over-valuation or under-valuation, should be dealt with under that section and not otherwise.

The reference to Section 578, now Section 99. C.P.C., in the opening words of the Section is significant. That Section, while providing that no decree shall be reversed or varied in appeal on account of the defects mentioned therein when they do no affect the merits of the case, except from its operation defects of jurisdiction. Section 99 therefore gives no protection to decrees passed on merits, when the courts which passed them lacked jurisdiction as a result of over-valuation or under-valuation. It is with a view to avoid this result that Section 11 was enacted. It provides that objections to the jurisdiction of a Court based on over-valuation or under-valuation shall not be entertained by an appellate Court except in the manner and to the extent mentioned in the Section. It is a self contained provision complete in itself, and no objection to jurisdiction based on over-valuation or under-valuation can be raised otherwise than in accordance with it.

With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99, C.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. 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.

xx xx xx xx xx xx Indeed, it is impossible on the language of the section to come to a different conclusion. If the fact of an appeal being heard by s Subordinate Court or District Court where the appeal would have lain to the High Court if the correct valuation had been given, is itself a matter of prejudice, then the decree passed by the Subordinate Court or the District Court must, without more be liable to be set aside, and the words 'unless the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.' would become wholly useless. These words clearly show that the decrees passed in such cases are liable to be interfered with in an appellate Court not in all cases and as a matter of course but only if prejudice such as is mentioned in the section results. And the prejudice envisaged by that section therefore must be something other than the appeal being heard in different forum.

A contrary conclusion will lead to the surprising result that the section was enacted with the object with the object of curing defects of jurisdiction arising by reason of over-valuation or under-valuation, but that, in fact, this object has not been achieved. We are therefore clearly of opinion that the prejudice contemplated by the section, is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined.'

In the instant case the plaintiff preferred the appeal in the court of the Senior Subordinate Judge on the basis of the valuation that was put by him on the plaint and not on the valuation as determined by the Trial Court with the result that in entertaining the appeal the learned Senior Subordinate Judge exercised jurisdiction over it by reason of under-valuation. Ordinarily a decision by a Court which has no jurisdiction over a matter would be null and void but in view of the dicta of their Lordships of the Supreme Court in Kiran Singh's case, AIR 1954 SC 340 such decisions are liable to be interfered with by the appellate Court only if prejudice such as is mentioned in Section 11 of the Suits Valuation Act results. The question that now arises for consideration is whether any prejudice as envisaged under Section 11 of the Suits Valuation Act has resulted in the instant case or not. The answer to this question has to be in the negative. Merely this fact that the appeal was to be heard by the District Judge, by itself would not be a ground to hold that the under-valuation had prejudicially affected the disposal of the appeal on its merits. No other point has been made out by Mr. Sarin to satisfy me otherwise. As I have before me the material necessary for the determination of other grounds of appeal, this appeal has to be disposed of as if here had been no defect of jurisdiction in the first appellate court.

4. This takes me to the merits of the case on which there is not much difficulty as I find that the judgment of the learned Senior subordinate Judge who found as a fact that the land in dispute was not kharaj-az-bach and that the court-fee had to be paid on ten times the land revenue, is perfectly legal and correct. The land in dispute was wrongly recorded as kharaj-az-bach in the Jamabandi of 1966-67 as is clear from the order dated 14th June, 1968, Exhibit P-7. The appellate Court has also considered the oral evidence in arriving at a conclusion that at the time of sale the land was culturable and actually put to that use. The finding of the appellate court, being a pure finding of fact, cannot legally be disturbed in the second appeal. Otherwise also I find that even on the evidence, no contrary view is possible. the plaint was properly valued for the purpose of Court-fee and jurisdiction. No exception can be taken to the finding of the appellate court on this aspect of the matter.

5. It was next contended by the learned counsel that proper court-fee was not paid by the plaintiff on the appeal filed by him before the learned Senior Subordinate Judge. On this aspect of the matter there was no contest between the learned counsel for the parties that on the appeal before the learned senior Subordinate Judge, the Court fee had to be paid advalorem on the difference between the court-fee held to be the proper court fee by the lower court. See also in this connection a Division Bench decision in Tarlok Singh v. Daljit Kaur, AIR 1961 Punj 426. It is also not disputed by the learned counsel for the parties that on the question of court-fee objection on behalf of the appellants, who were respondents before the learned Senior Subordinate Judge, was not taken in this manner; rather the precise objection taken was that court-fee had to be paid ad valorem on the valuation found by the trial Court. As conceded by the learned counsel for the appellants, this objection was not tenable and was rightly rejected by the learned Senior Subordinate Judge. It, therefore, follows that objection was not taken on behalf of the appellants who were respondents before the learned Senior Subordinate Judge that the court-fee had to be paid ad valorem on the difference between the court-fee held to be proper court-fee by the lower court. Even in the grounds of this appeal, objection with regard to the court-fee has not been taken in this manner; rather the objection raised is exactly in the same terms as it was raised before the first appellate court. Admittedly proper court-fee in accordance with the law laid down in Tarlok Singh's case, AIR 1961 Punj 426 was not paid on the appeal filed before the learned Senior Subordinate Judge. In order to remedy this defect, Civil Miscellaneous No. 621 of 1971 was filled by the plaintiff respondent under Sections 149/151 of the code of Civil Procedure, read with Section 12(ii) of the Court Fees Act and Section 5 of the Indian Limitation Act praying that the deficiency in the Court fee on the memorandum of appeal before the first appellate court be allowed to be made good. Notice of this application was given to the learned counsel for the appellants who opposed the same on the ground that such an application did not lie and that this court at this stage could not permit the deficiency in the court-fee to be made good. It was also sought to be argued that the proper course would be to allow the appeal and remit the case to the appellate court for deciding this application.

6. After giving my thoughtful consideration to the entire matter I am of the view that in the circumstances of the case the application for permission to make up the deficiency deserves to be allowed. As earlier observed, the objection with regard to the deficiency in the court fee was not taken in the manner in which it was being agitated before me and that the type of objection raised before the appellate Court was not maintainable and was rightly rejected. If the right type of objection had been raised then the plaintiff-respondent would have remedied that defect at the time of arguments. To start with even before me such an objection was not raised and it was only during the course of arguments that such an objection was raised. The plaintiff under bona fide mistake paid only court-fee, which he had affixed on the plaint as he was challenging the correctness of the finding of the trial court on the question of valuation. No useful purpose would be served in sending back the case on this technical ground for determination of this application. considering all the circumstances it is a fit case for allowing the prayer of the plaintiff respondent to make up the deficiency. I do not agree with the learned counsel for the appellants that such a prayer could not be allowed by this court in second appeal. No authority to sustain this contention was cited before me by the learned counsel; rather on the contrary Mr. Ashok Bhan, learned counsel for the plaintiff-respondent referred to me the decision of the special Bench in Kathyee Cotton Mills Ltd. v. Padmanabha Pillai, AIR 1958 Ker 88 and that of a Full Bench in Dyal Singh v. Ram Rakha, 1912 Pun Re 109. which support the view that under Section 149 of the code of Civil Procedure and Section 12(11) of the Court-fees Act, an appellate Court can also allow the deficiency of the Court-fee to be made good. In this view of the matter, I permit the plaintiff-respondent to make up the deficiency in court-fee. The plaintiff has already made up deficiency while filling the miscellaneous application.

7. No other point was urged.

8. For the reasons recorded above, this appeal falls and is dismissed but in the circumstances of the case I make no order as to costs.

9. Appeal dismissed.


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