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Pargat Singh Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 382 of 1980
Judge
Reported inAIR1981Delhi328; 20(1981)DLT160; 1981RLR538
ActsCourt Fees Act, 1870 - Sections 12(2); Suits Valuation Act, 1887 - Sections 11; Code of Civil Procedure (CPC), 1908 - Sections 99
AppellantPargat Singh
RespondentUnion of India
Advocates: B.S. Charya and; C.K. Mahajan, Advs
Excerpt:
.....had jurisdiction under section 10(ii) of the court fees act to dismiss the suit. section 11 of the suits valuation act reads as under :ii(1) notwithstanding anything in section 578 of the code of civil procedure, an objection that by reason of the over-valuation or under-valuation of a suit or appeal a court of first instance or lower appellate court which had not jurisdiction with respect to the 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..........value of the suit for purposes of court fees and paid court fee rs. 33.00 - under section 8 of the suit valuation act, 1887 the value of the suit for purposes of jurisdiction would, thereforee, be rs. 330.00 only. (7) the question about the proper valuation of the suit was raised before the trial court. under issue no. 4 the trial court held that the plaintiff had paid requisite court fee for the reliefs of declaration and injuction. the objection was again raised before the first appellate court. the court observed that the plaintiff claimed two reliefs for declaration and one relief for mandatory injunction and thus he was required to value all the reliefs. the appellate court was of the view that the suit was not properly valued with respect to all the reliefs claimed by the.....
Judgment:

Sultan Singh, J.

(1) This first appeal under Order 43 rule I (u) of the Code of Civil Procedure (hereinafter called 'the Code') on behalf of the plaintiff is directed against the judgment and order dated 21st July, 1980 remanding the suit to the trial court. It has arisen in the following circumstances.

(2) The plaintiff is employed in post office. He was originally appointed as Junior Assistant at Quetta in Baluchistan Administration and he worked in that capacity till August, 1947 when the partition of the country took place. He opted for India. He was treated as a Central Government employee. The plaintiff represented to the Central Government for fixation of his seniority in accordance with various orders applicable to his case. The respondent- defendant it appears did not fix his senority as demanded. He, thereforee, filed the present suit on 21st May, 1971 for a declaration that his seniority in service was to be fixed with effect from 27th March, 1945 and that he Was entitled to all benefits accordingly. He further prayed for the issue of a mandatory injuction requiring the defendants to fix his seniority. The defendants contested the suit. The following issues were framed :

'1. Whether suit against defendant No. 2 to 5 is maintainable' 2. Whether the suit is barred by time 3. Whether there is no justiciable cause of action against defendants? 4. Whether the suit is properly valued for purposes of court fee and jurisdiction 5. Whether the suit discloses cause of action against the defendants 6. Whether the plaintiff is entitled to the relief claimed for as alleged in the plaint.? 7. Whether the plaintiff hai served legal notice under Section 80 C.P.C. 8. Relief.'

(3) The trial court after recording evidence decreed the suit in terms of the prayer contained in the plaint.

(4) The respondents-Union of India filed an appeal challenging the various findings of the trial court. On the issue relating to proper valuation of the uit for purposes of jurisdiction and court fee no objection was raised by the defendant-Union of India in the grounds of appeal before the first appellate court The Additional District Judge however came to the conclusion that the suit was not properly valued for purposes of jurisdiction and court fee. He, thereforee, set aside the judgment and decree, and remanded the suit to the trial court for fresh decision according to law. The plaintiff feeling aggrieved has filed this appeal.

(5) The first appellate court has not given any finding on any of the issues decided by the trial court. Learned counsel for the appellant submits that the remand order is without jurisdiction and the impugned order is liable to be set aside. According to him the first appellate court had no jurisdiction to set aside the decree of the trial court without deciding all the issues and that the first appellate court itself ought to have decided the question of valuation of the suit. Learned counsel submits that question relating to valuation for purposes of court fees if raised before a court of appeal is to be decided by that court. If court of appeal considers that the said question had been wrongly decided by the trial court to the detriment of the revenue, the appellate should have required the party concerned to pay additional court fee payable on the plaint. He further says that if the party liable to pay additional court fee demanded, fails to do so, the court is empowered to dismiss the suit itself. Ld. counsel further submits that the respondent did not raise any objection regarding under valuation of the suit for purposes of jurisdiction before the first appellate court and that the court did not hold that the alleged under valuation prejudicially affected the disposal of the suit by trial court. He, thereforee, submits that the first appellate court ought not to have set aside the decree of trial court.

(6) The plaintiff fixed the value of the suit for declaration for purposes of court fee at Rs. 200.00 and paid court fee Rs. 20.00 . He also fixed the value for the relief of injunction at Rs. 130.00 and paid court fee Rs. 13.00 . The plaintiff thus fixed Rs. 330.00 as the value of the suit for purposes of court fees and paid court fee Rs. 33.00 - Under Section 8 of the Suit Valuation Act, 1887 the value of the suit for purposes of jurisdiction would, thereforee, be Rs. 330.00 only.

(7) The question about the proper valuation of the suit was raised before the trial court. Under Issue No. 4 the trial court held that the plaintiff had paid requisite court fee for the reliefs of declaration and injuction. The objection was again raised before the first appellate court. The court observed that the plaintiff claimed two reliefs for declaration and one relief for mandatory injunction and thus he was required to value all the reliefs. The appellate court was of the view that the suit was not properly valued with respect to all the reliefs claimed by the plaintiff, and thereforee set aside the finding of the trial court on this issue.

(8) From the judgment of the first appellate court it appears that it did not decide what was the proper value of the suit for purposes of court fee and jurisdiction, but remanded the case to the trial court with a direction to give opportunity to the plaintiff to correctly value the suit and pay additional court fee. Section 120 of the Court Fees Act reads as under :

'12(1)Every question relating to valuation for the purpose of determining the amount of any fees chargeable under this chapter on a plaint or memorandum of appeal, shall be decided by the court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit. (ii) But whenever any such suit comes before a court of appeal, reference or revision, if such court considers that the said question has been wrongly decided, to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fees as would have been payable had the question been rightly decided, and the provisions of Section 10, paragraph (ii), shall apply.'

Sub-Section (1) of Section 12 of the Court Fees Act does not apply to the facts of the present cases a the dispute about valuation is agitated before the court of appeal. Sub-Section (ii) of Section 12 of the Court Fees Act requires the appellate court decide whether the question of court fee was wrongly decided by the lower court to the detriment of revenue, if so, it should require the party to pay additional court fee payable on plaint. Thus what was the proper court fee payable on the plaint, is a question which ought to have been decided by the first appellate court in view of Section 12(ii) of the Court Fees Act. This provision further provides that in case the plaintiff fails to pay the additional court fee payable by him within the time fixed by the court, the suit should be dismissed as provided for in Section 10(ii) of the Court Fees Act. The suit is not liable to be rejected as provided in Order 7 Rule I I of the Code but it is to be dismissed. In the present case it seems the first appellate court did not determine the additional court fee, if any, payable by the plaintiff on the plaint. If the first appellate court was of the view that the suit was not properly valued for purposes of court fee it ought to have given an opportunity to the plaintiff to amend the value of the suit and thereafter ought to have fixed time requiring him to pay additional court fee and on his failure to do so, the appellate court had jurisdiction under Section 10(ii) of the Court Fees Act to dismiss the suit. It appears that the first appellate court did not follow the mandatory procedure contain in Section 12 of the Court Fees Act.

(9) Learned counsel for the appellant further submits that under Section 11 of the Suits Valuation Act the first, appellate court ought not to have entertained the objection regarding valuation of the suit for purposes of Jurisdiction. He says that the objection was not raised in the grounds of appeal before the first appellate court. Further first appellant court had not given any finding that under valuation of suit had prejudicially effected the disposal of the suit on merits and the court thereforee ought not to have entertained the said objection. He further submits that under Section 11(2) of the Suits Valuation Act the first appellate court ought to have decided the appeal on all the issues as the objection of under valuation was not available to the defendant. Section 11 of the Suits Valuation Act reads as under :

'II(1) Notwithstanding anything in Section 578 of the Code of Civil Procedure, an objection that by reason of the over-valuation or under-valuation of a suit or appeal a court of first instance or lower appellate court which had not jurisdiction with respect to the 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 undervalued, and that the over-valuation or under valuation thereof 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 Subsection and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeals as if there had been no defect of jurisdiction in the court of first instance or lower appellate court. (3) If the objection was taken in that manner and the appellate court is satisfied as to both those matters and has not those materials before it, it shall proceed to deal with the appeal under the rules applicable to the court with respect to the hearing of appeals; but if it remands the suits or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a court competent to entertain the suit-or appeal. (4) The provisions of this section with respect to appellate court shall, so far as they can be made applicable, apply to a court exercising revisional jurisdiction under Section 622 of the Code of Civil Procedure or other enactment for the time being in force. (5) This section shall come into force on the first day of July, 1887'.

(10) Under Section 11(1)(b) of the Act the first appellate court is required to give a finding that the suit was under valued and that it prejudicially affected the disposal of the suit on merits. No such finding has been given by the first appellate court under Section 11(2) of the Act. It appears that the first appellate court in the circumstances ought to have decided all the issues before it in appeal. Sub-section (2) of Section 11 applies to objection regarding valuation either taken before the trial court or before the appellate court and if the court concludes that under valuation did not affect the disposal of the suit, the appellate court ought to have decided the appeal on merits.

(11) Learned counsel for the appellant further submits that the appellate court ought to have refused to entertain the objection regarding the valuation at the instance of the defendant in view of Section 99 of the Code of Civil Procedure. Section 99 of the Code of Civil Procedure reads as under:

'99No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misguide (or non-joinder) of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court.'

Learned counsel says that the question of valuation does not affect the merits of the suits or of the jurisdiction of the trial court in the facts and circumstances of the present case and thereforee the appellate court ought not to have set aside the decree passed by the trial court.

(12) Section 11 of the Suits Valuation Act mentions the circumstances under which the appellate court may entertain the objection regarding valuation of the suit. Section 11 of ihe Suits Valuation Act even supersedes Section 99 of the Code of Civil Procedure. Section 11 of the Suits Valuation Act uses the words 'notwithstanding anything in Section 578 of the Code of Civil Procedure' now Section 99 of the Code. The first appellate court thus in view of Section 11 of the Suits Valuation Act, ought not to have entertained the question of valuation of the suit unless the court concludes that under valuation affected prejudicially the disposal of the suit. If the first appellate court had entertained, it ought to have decided the same as provided in Section 12 read with Section 10 of the Court Fees Act and Section 11 of the Suits Valuation Act. This procedure has not been followed. The remand order is, thereforee, held to be bad and not in accordance with law. The impugned judgment and order dated 30th July, 1980 is, thereforee, set aside. The appeal before the first appellate court is remanded for decision in accordance with law. The first appellate court may now decide the question of court fee and valuation of the suit for purposes of jurisdiction in accordance with Section 12 of the Court Fees Act and Section 11 of the Suits Valuation Act. If it comes to the conclusion that the suit was not properly valued for purposes of court fee it would require the plaintiff to pay the additional court fee and on his failure to do so, it would be entitled to dismiss the suit under Section 10(ii) of the Court Fees Act. If the additional court fee, if any, is payable and is paid by the plaintiff, the first appellate court will then decide all the issues in accordance with law. Parties are directed to appear before the District Judge on 25th May, l981 on which date he may assign the appeal to the successor of the court passing the impugned judgment and order. No order as to costs in this appeal.


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