Skip to content


Chhangan Karsan Vs. Bhagwanji Punjab and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 318 of 1970
Judge
Reported inAIR1973Guj165
ActsBombay Civil Court Act, 1869 - Sections 24 and 25; ;Suits Valuation Act, 1887
AppellantChhangan Karsan
RespondentBhagwanji Punjab and anr.
Appellant Advocate Suresh M. Shah and; B.D. Shukla, Advs.
Respondent Advocate J.R. Nanavati, Adv.
Cases ReferredLakshman Bhatkar v. Babji Bhatkar.
Excerpt:
civil - jurisdiction - sections 24 and 25 of bombay civil court act, 1869 and suits valuation act, 1887 - limit of pecuniary jurisdiction of civil judge (junior division) means beyond which he cannot try suit - if subject matter exceeds limit of pecuniary jurisdiction of judge then matter to go to civil judge (senior division) in exercise of special jurisdiction - where subject matter of suit not susceptible of monetary evaluation then it would come within ordinary jurisdiction of civil judge (junior division). - - the second joint civil judge (junior division). jamnagar hear the suit on merits and taking the view that on the evidence the appellant had failed to the establish the right of way claimed by him dismissed the suit. was not well founded and the decision of s. the.....bhagwati, c.j. 1. this second appeal comes before us on a reference made by m. u. shah. j. the appellant is the original plaintiff and the respondents are the original defendants. the appellants filed civil suit no. 168 of 1968 in the court of the civil judge (senior division). jamnagar, claming permanent injuction restraining the respondents from obstructing the appellant in the exercise of his right of way to his fileds varing survey nos,. 719 and 732 though the shadha. that is, the boundary line of the fields of the respondents. since the fields of the respondents of which the right of way was claimed by the appellant were situate in the sim of jamnagar but outside its municipal limits. the suit fell within clause (c) of section 6(iv) of the bombay court-fees act. 1959 and a fixed.....
Judgment:

Bhagwati, C.J.

1. This Second Appeal comes before us on a reference made by M. U. Shah. J. The appellant is the original plaintiff and the respondents are the original defendants. The appellants filed Civil Suit No. 168 of 1968 in the Court of the Civil Judge (Senior Division). Jamnagar, claming permanent injuction restraining the respondents from obstructing the appellant in the exercise of his right of way to his fileds varing Survey Nos,. 719 and 732 though the Shadha. that is, the boundary line of the fields of the respondents. Since the fields of the respondents of which the right of way was claimed by the appellant were situate in the Sim of Jamnagar but outside its municipal limits. The suit fell within Clause (c) of Section 6(iv) of the Bombay Court-fees Act. 1959 and a fixed Court -fee of Rs. 15/- was accordingly paid by appellants on the plaint. The Civil Judge (Senior Division), Jamnagar, referred the suit for disposal to the Second Joint Civil Judge (Junior Division). Jamnagar and after the suit was transferred to him written statements were filed on behalf of the respondents in answer to the suit. Though several contention were taken in the written statement none of them challenged the jurisdiction of the Second Joint Civil Judge (Junior Division). Jamnagar to try and dispose of the suit. The Second Joint Civil Judge (Junior Division). Jamnagar hear the suit on merits and taking the view that on the evidence the appellant had failed to the establish the right of way claimed by him dismissed the suit. The appellant thereupon preferred Civil Appeal No. 180 of 1969 in the District Court Jamnagar against the decision of the Second Joint Civil Judge (Junior Division), Jamnagar. In the appeal also no contention was raised on behalf of any of the parties that the Second Joint Civil Judge (Junior Division). Jamnagar had no jurisdiction to try and dispose of the suit and the decree passed by him was. therefore a nullity and must be set aside. The appeal was heard by the District Judge on merits and after considering the evidence on record the District Judge came to the conclusion that the right of way clamed by the appellant was not established and he accordingly dismissed the appeal. This led to the filing of the present Second Appellant was not established and he accordingly dismissed the appeal. This led to the filing of the present Second Appeal in the Court. When the Second Appeal came up for hearing before M. U. Shah J. a new contention was sought to be advanced on behalf of the appellant that the subject-mater of the suit was not susceptible of monetary evaluation and, therefore it could not be predicated that the suit was one wherein the subject-matter did not exceed in amount or value Rs. 10,000/- and consequently the Second Joint civil Judge (Junior Division). Jamnagar had not jurisdiction to try and dispose given by S. H. Sheth J. sitting as a single Judge in Khimiji Jiva v. Narendrakumar, : AIR1972Guj280 . The respondents gave a two-fold answer to this contention. One answer was on the merits of the contention. The respondents urged that the contention of the appellant supported though it was by the founded and the decision of S. H. sheth. J. was not well founded and the decision of S. H. Sheth K. required reconsideration by a Division Bench of the Court. The respondents also urged in the alternative, and that was the second answer given by them that in any event even if the objection to the jurisdiction of the Second Joint Civil Judge (Junior Division) was well founded the appellant could not be permitted to taken it for the first time at the hearing of the Second Appellant since it was not taken at any earlier stage of the proceedings. The question arising on these rival contentions were of grant importance since they affected a large number of suits in the mofussil and hence M. U. Sheah J. raised the followed two question and referred them for the decision to a Division Bench of the Court .

'(1) Whether the Civil Judge Junior Division has power to deal with and decide the suit wherein the subject-matter the incapable of monetary evaluation having referred to the provisions contained in Section 24 of the Bombay Civil Court Act 1869 (Act No. XIV of 1869)?

(2) If the objection as to jurisdiction of the Civil Judge Division, under Section 24 of the Bombay Civil Courts, Act 1869 is not taken at an earlier stage in the Court below then whether a plea of the want of jurisdiction can be allowed to be raised for the first time in appeal'?

That is how present Second appeal has come before us for decision of the two question referred by M. U. Shah. J. We shall first examine the rival arguments bearing on the first question in regard to the first and question is found to be without force and it is held that the Second Joint Civil Judge (Junior Division). Jamnagar had jurisdiction to try and dispose of the suit, it would become unnecessary to decide the second question.

2. The determination of the first question turns on a prior interpretation of a few relevant provisions of the Bombay Civil Courts Act. 1896 . We shall presently refer to these provision but before we do so. we may point out that the first question is based on the postulate that the suit in regard to which the question arises is one in which the subject-matter is incapable of monetary evaluation. This postulate is in our opinion incorrect because, as we shall point our a little later,. so far as valuation for the purpose of jurisdiction is concerned there is no such thing as subject-matter being incapable in monetary evaluation. That concept is wholly inappropriate in this context as in every case whatever be the nature of the suit the subject-matter has to be valued in terms of money for the purpose of jurisdiction. But of that later. Turning out attention first to the previsions of the Bombay Civil Court Act 1869 we find that there are two Section which primarily call for consideration but in order to understand their true import. it is necessary to refer to some other Section as well. Section 21 trice so many Civil Court subordinate to the District Court as the State Government shall form time to time direct. The Judge of such subordinate Court are. says Section 22 to be appointed by the Stage Government and they are called Civil Judge. Section 22-A empowers the State Government by notification in the Official Gazette to fix and, from time to time to alter the local limits of the ordinary jurisdiction of the Civil Judge. They follows Section 23 which consists of several paragraphs. We are concerned with the fifth paragraph. It provides that 'For the purposes of assessing the Judge of any subordinate Court in the disposal of the civil business on his file. the High Court may appoint to such Court from the members of the Subordinate Civil Judge Service of the State one or more Joint Civil Judge, or the District Judge may with the previous sanction of the High Court, deputy to such Court the Judge the another subordinate Court within the district:' and proceeds to add' 'Act Civil Judge thus appointed or debuted to assist in the Court of another Civil Judge shall dispose of such Civil business within the limits of his pecuniary jurisdiction as may subject to the control of the DJ be refereed to him by the Judge of such Court'. Section 24 divides Civil Judge into two classes: Civil Judge (Senior Division) and Civil Judge (Junior Division). What shall be the jurisdiction of Civil Judge (Senior Division) and Civil Judge (Junior Division) is set out in the second and third paragraphs of Section 24 which, together with the proviso enact the following provision:

'The jurisdiction of a Civil Judge (Senior Division) extends to all original suits and proceedings of a civil nature.

The jurisdiction of a Civil Judge (Junior Division) extends to all original suits and proceedings of a civil nature wherein the subject-matter does not exceed in amount or value in thousand rupees.

Provided that the State Government may increase that limit of ten thousand rupees to fifteen thousand rupees in the case of any Civil Judge (Junior Division) of not less then ten years' standing and specially recommended in this behalf by the High Court................ '

Section 25 confers special jurisdiction on the Civil Judge (Senior Division) in the following terms:--

'25. A Civil Judge (Senior Division) in additional to his ordinary jurisdiction shall exercise a special jurisdiction in respect of suits and proceedings of a civil nature as may arise within the local jurisdiction of the Courts in the district presided over by the Civil Judge (Junior Division) and wherein the subject-matter exceeds the pecuniary jurisdiction of the Civil Judge (Junior Division) as defined by Section 24.

In district to which more than one Civil Judge (Senior Division) have been appointed, the District Judge subject to the order of the High Court shall assign to each the local limited within which his said special jurisdiction is to be exercised'.

Section 32 provided into alia that no subordinate Court other than the Court of a Civil Judge (Senior Division) and no Court of small Causes shall receive or any officer of the Government in his official capacity is a party and in every such case the plaintiff shall be referred to the Court of the Civil Judge (Senior Division) and such suit shall be instituted only in the Court of the Civil Judge (Senior Division) and shall be heard by such Civil Judge. subject to the revisions of Section 24 of the Code of Civil Procedure 1908. The forum of appeal is to be found in Sections 8, 16, 17 and 26 but it is not necessary to refer all these Sections since the only Section which are material are Sections 8, and 26. Section 8 says that, except as provided in Section 16, 17 and 26 the District Court shall be the Court of Appeal from all the decrees and orders passed by the subordinate Court from which an appeal lies under any law for the time being in force. Section 26 provided that in all suits decided by a Civil Judge of which the amount of value of the subject-matter exceeds ten thousand rupees, the appeal from his decision shall be direct to the relieving provisions of the Bombay Civil Court Act 1896 which require to be considered for the purpose of determining the controversy between the parties.

3. The argument of the appellant based on these provisions was that the second paragraph of Section 24 confers jurisdiction on a Civil Judge (Senior Division) to try and proceedings of a civil nature without any limit or restriction and therefore every suit or proceeding of a Civil nature would be within the Jurisdiction of Civil Judge (Senior Division) irrespective of whether the value of its subject-matter exceeds of does not exceed ten thousand rupees,. The jurisdiction conferred on a Civil Judge (Junior Division) under the third paragraph of Section 24. is however a restricted jurisdiction in that a Civil Judge (Junior Division) can try and proceedings of a civil nature wherein the subject-matter does not exceed in amount or value ten thousand rupees. Where therefore a question arises whether a Civil Judge (Junior Division) has jurisdiction to try and dispose of suit or proceeding of a civil nature which has come before him the test which will have to be applied for the purpose of determining the question would be whether the subject-matter of the suit or proceeding does not exceed in amount or value ten thousand rupees. Now. if the subject-matter of the suit or proceeding is capable of monetary evaluation, there is no difficulty in applying this test. If the subject-matter of the suit or proceeding does not exceed in amount or value ten thousand rupees. the Civil Judge (Junior Division) would. on the plain terms of the third paragraph of Section 24. have jurisdiction to try and dispose of the suit or proceeding. If on the other hand the subject-matter of the suit or proceeding exceeds in amount or value ten thousand rupees, Civil Judge (Junior Division) would have no jurisdiction and the suit or proceeding would be triable only by the Civil Judge (Senior Division). But the difficulty would arise where the subject-matter of the suit or proceeding is not capable of monetary evaluation. Whether such is the case,. it cannot be predicated that the subject-matter of the suit or proceeding does not exceed in amount or value ten thousand rupees and in that event. the condition defining the jurisdiction of the Civil Judge (Junior Division). The appellant contended on the basis of these submission that suit or proceeding in which or subject-matter is not susceptible of monetary evaluation would not fall within the jurisdiction of the Civil Judge (Junior Division) under the third paragraph of Section 24 and would consequently be triable only by the Civil Judge (Senior Division) who exercise full and unrestricted jurisdiction to try and dispose of all suits an proceedings of a civil nature by virtue of the second paragraph of Section 24. This contention was sought to be supported by reference was to the decision of S. H. Sheth J. in : AIR1972Guj280 (supra). Now there can be no doubt that the decision of S. H. Sheth J. does support the contention urged on behalf of the appellant but for reasons which we shall presently state. we do not think the contention is swell founded. If we may say so with the greatest respect to the learned Judge. the decision of S. H. Sheth j. does not down the correct law.

4. It is apparent on a close scrutiny of the contention urged on behalf of the appellant that it proceeds on the assumption that the jurisdiction conferred on a Civil Judge (Senior Division) under the second paragraph of Section 24 is all embracing and it extends to al suits and proceedings of a civil nature irrespective where they arise within the district so that if a suit or proceeding does not fall within the jurisdiction of a Civil Judge (Junior Division) under the third paragraph of Section 24. it must necessarily come with the jurisdiction of the Civil Judge (Senior Division) under the second paragraph of Section 24. This assumption is in our opinion not correct. It ignores the scheme of the Bombay Civil Court Act. 1869 as appearing from SECTION 22-A ct fifth paragraph of Section 23 and Section 24 and 25. It is matter of common knowledge and indeed having regard to the notification constituting Courts of Civil Judge (Senior Division) in the State, it could not be contended otherwise that the Court of Civil Judge (Senior Division) is constituted in each district in the State and the local limits of the ordinary jurisdiction of the Civil Judge (Senior division) presiding over such Court are fixed by the State Government under Section 22-Act so as to coincide with the revenue limits of the taluka in which the district heard-quarters are situate. To take an example the Court of the Civil Judge (Senior Division) Kutch is set up by the State Government under a notification No. SRO. 1057/5329 (iii) dated 23rd March 1959 and under this Notification. the local limits of the ordinary jurisdiction of the Civil Judge (Senior Division) presiding over this Court are defined to be the Taluks of Bhuj and Banni and Khavda Mahals. The same is the position in regard to the Court of Civil Judge (Senior Division) in other Districts. The Civil Judge (Senior Division) has therefore ordinary jurisdiction within the local limits fixed by the State Government under Section 22-Act and these limits comprise the taluka in which the district headquarters are situate with the addition perhaps of one or two Mahals but in no case do they extend to other talukas in the district. The second paragraph of Section 24 deals with the ordinary jurisdiction of a Civil Judge (Senior Division) and provides that, in the exercise of his ordinary jurisdiction a Civil Judge (Senior Division) shall be entitled to try and dispose of all original suits and proceedings of a civil nature arising within the local limits of his ordinary jurisdiction fixed under Section 22-Act. Now so far as the other talukas in the district outside the local limits of the ordinary jurisdiction of the Civil Judge (Senior Division) are concerned,. there are in those talukas court established by the State Government which are presided over by Civil Judge (Junior Division) and the local limits of the ordinary jurisdiction of each Civil Judge (Junior Division) are fixed by the State Government under Section 22-Act. These local limits ordinarily coincide with the revenue limits of a taluka but sometime they may comprise even more than one taluka. The third paragraph of Section 24 deals with the ordinary jurisdiction of a Civil Judge (Junior Division) and provides that a Civil Judge (Junior Division) shall b entitled in the exercise of his ordinary jurisdiction to try all original suits and proceedings of a civil natural which arise within the local limits of his ordinary jurisdiction but in which the subject-matter does not exceed in amount or value ten thousand rupees. It would therefore. seem that where a suit or proceeding arising within the local limits of the ordinary jurisdiction of a Civil Judge (Junior Division) does not exceed in amount or value ten thousand rupees, the Civil Judge (Junior Division) would have jurisdiction to try and dispose of such suit or proceeding. But what would happen if the subject-matter or such suit or proceeding exceeds in amount to value ten thousand rupees? The Civil Judge (Senior Division) would obviously not been titled to try and dispose of such suit or proceeding in the exercise of his ordinary jurisdiction under the second paragraph of Section 24 as it would not be a suit or proceeding arising within the local limits of his ordinary jurisdiction. Which Court would then be competent to try it and disposed it of? The answer is provided by Section 25 which confers special jurisdiction on a Civil Judge (Senior Division). That Section says that a Civil Judge (Senior Division) shall have special jurisdiction . in addition to his ordinary jurisdiction under the second paragraph of Section 24. and such special jurisdiction shall extend to all such suits and proceedings of a civil nature as may arise within the local jurisdiction of the Court is the district presided over by Courts in the district presided over by Civil Judge (Junior Division) an din which the subject-matter exceeds the pecuniary jurisdiction of the Civil Judge (Junior Division) as defined by the third paragraph of Section 14. Where therefore there is a Court in a talika town presided over by a Civil Judge (Junior Division) and that can be only in respect of an area outside the local limits of the ordinary jurisdiction of the Court of Civil Judge (Senior Division) and a suit or proceeding arises within the local jurisdiction of such Court and its subject-matter exceeds in amount or value ten thousand rupees, such suit or proceeding would go outside the jurisdiction of the Civil Judge (Junior Division) and fall within the special jurisdiction of the Civil Judge (Senior Division). The Combined effect of Section 24 and 25 therefore is that the second paragraph of Section 24 confers ordinary jurisdiction and Section 25 confers special jurisdiction on a Civil Judge (Senior Division) . The ordinary jurisdiction extends to all original suits and proceedings of a civil nature arising within the local limits of his ordinary jurisdiction fixed by the State Government under Section 22-Act. It makes no difference for the purpose of this ordinary jurisdiction whether the subject-matter of the suit or proceeding exceeds or does not exceed in amount or value and ten thousand rupees. The special jurisdiction extends to such suits and proceedings of a civil nature as may arise when local jurisdiction of the Courts in the district presided over by Civil Judge (Junior Division) that is, outside the local limits of the ordinary jurisdiction and in which the subject-matter exceeds in amount or value ten thousand rupees. that being the limits of the pecuniary jurisdiction of the Civil Judge (Junior Division). The third paragraph of Section 24 provides for the ordinary jurisdiction of a Civil Judge (Junior Division). whether he is presiding over a Civil Court in the district or is a Joint Civil Judge appointed or deputed to deputed to assist in the Court of another Civil Judge. If a Civil Judge (Junior Division) is presiding over a Court in the district this ordinary jurisdiction would be confined to the local limits specified by the State Government under Section 22-Act. But if he is appointed or deputed to assist in the Court of another Civil Judge he would have no separate territorial jurisdiction specified for him but he would dispose of such civil business within the limits of his pecuniary jurisdiction as may. subject to the control of the District Judge. be referred to him by the Judge of the Court to which he is appointed or deputed to assist. The pecuniary jurisdiction of a Civil Judge (Junior Division) in either case would be limited to suits and proceedings in which the subject-matter does not exceed in amount or value ten thousand rupees.

5. Having examined the scheme of the relevant provisions of the Bombay Civil Court Act 1869 we may now proceed to consider the problem before us in the light of this scheme. We will first take a case where a suit or proceeding arises within the local jurisdiction of a Civil Judge (Junior Division) presiding over a Civil Court in the district. If the subject-matter of the suit or proceeding is capable of monetary evaluation it may either exceed ten thousand rupees or it may not. If it does not exceed ten thousand rupees the Civil Judge (Junior Division) would have jurisdiction to try and dispose of the suit or proceeding under third paragraph of Section 24: if it exceeds ten thousand rupees that is the pecuniary jurisdiction of the Civil Judge (Junior Division) as defined by the third paragraph of Section 24 the suit or proceeding would fall within the special jurisdiction of the Civil Judge (Senior Division) under Section 25. But the question is what would happen if the subject matter of the suit or proceedings is not susceptible of monetary evaluation? Now if the argument of the appellant were correct that where the subject matter of the suit or proceeding is not capable of monetary evaluation. it cannot be predicated that the subject-matter does not exceed in amount of value ten thousand rupees and, therefore the suit to proceeding would not fall within the jurisdiction of the Civil Judge (Junior Division) under the third paragraph of Section 24 the same argument must equally apply to negative the special jurisdiction of the Civil Judge (Senior Division) in respect of the suit of proceeding under the Section 25. The special jurisdiction of the Civil Judge (Senior Division) under Section 25 is attracted only where the subject-matter of the suit or proceeding exceeds the pecuniary jurisdiction of the Civil Judge (Junior Division) that is ten thousand rupees and if the subject-matter of the suit or proceeding is incapable of monetary evaluation how can it be predicated on the argument of the appellant that the subject-matter exceeds in amount or value ten thousand rupees and if it cannot be so predicated the condition defining the special jurisdiction of the Civil Judge (Senior Division) of the Civil Judge (Senior Division) would not be satisfied and the Civil Judge (Senior Division) would have no jurisdiction to try and dispose of the suit or proceedings. The curious and extraordinary result of this line of reasoning would be that neither the Civil Judge (Junior Division) would have jurisdiction to try and dispose of such a suit or proceeding under the third paragraph of Section 24 nor would the Civil Judge (Senior Division) have special jurisdiction to try and dispose of such a suit or proceeding under Section 25. There would be no Judge having jurisdiction to try and dispose of such a suit or proceeding. That surely could not have been intended to the Legislature. To accept with such a construction would be to attribute remiseness to the Legislature. We would be extremely show to accept a construction which has the effect or producing such a serious lacuna and brining about a situation where a whole category of suits would be without a Judge to try and dispose them of what other meaning then must we given to the third paragraph of Section 24 is order to avoid such a serious and starling result?

6. The answer is fairly clear . The third paragraph of Section 24 and Section 25 postulate that all suits and proceedings of a civil nature are divisible only into two classes one class of those where the subject-matter does not exceed in amount or value ten thousand rupees and the other of those where the subject-matter exceeds in amount or value ten thousand rupees. The former class is death with in the third paragraph of Section 24 while the latter in Section 25. There is no third class of suits or proceedings contemplated by the Legislature where a subject-matter may incapable of monetary evaluation so that is it not possible to say whether the value of the subject-matter exceeds or does not exceed ten thousand rupees. The reason is that in every suit or proceeding of a civil nature the subject-matter has to be valued in terms of money for the purpose of jurisdiction. It may be that under the Bombay Court-Fees Act . 1959 where the subject-matter of a suit or proceeding is not susceptible of monetary evaluation. the Legislature may have provided a fixed court-fee but so far as valuation for the purpose of jurisdiction is concerned there has to be a valuation of the subject-matter. The Suits Valuation Act 1887 lays down the principles for valuation of the subject-matter of a suit for the purpose of jurisdiction . But there may be suits where the subject-matter may not be capable of being satisfactorily valued in terms of money and no rules having been made by the High Court under Section 9 no guidance may be furnished by the Suits Valuation Act 1887 as to how the subject-matter of such a suit should be valued. Can the Court show up its hands in such cases and say that the subject-matter shall have no valuation? The answer is clearly no. It is now well settled that in such cases the plaintiff may put his own valuation on the subject-matter by and such valuation would be accepted by the court as prima facie true unless the Court is satisfied that it is defective on account of some improper motive. in which case the Court would always consider what should be regarded to be the power value. This was lid down as a far back as the beginning of the present century by the Allahabad High Court in Zair Husain Khan v. Khurshed Jan. (1906) ILR 28 All 545; and by the Calcutta High Court in Jan Mahomed v. Mahar Bibi. (1907) ILR 34 Cal 352. The same view was also taken by a Division Bench of the Bombay High Court in the early case of Jasoda v. Chhotu , (1909) 11 Bom LR 1352. There the question which arose for determination was similar to the one which has arisen before us. The question arose and out of suit for restitution of conjugal rights filed by the plaintiff against the defendant. The plaintiff valued the subject-matter of the suit for the purpose of jurisdiction at Rs. 65 and on that basis instituted the suit in the Court of the Second Class Subordinate Judge. The suit was decreed by the Second Class Subordinate Judge and no appeal the decree was confirmed by the District Judge. The defendant carried the matter in Second appeal to the High Court at the hearing of the Second Appeal. a contention was raised on her behalf that the Second Class Subordinate Judge had no jurisdiction to try and dispose a suit for restitution of conjugal rights since it cannot be predicate of such a suits that the value of it subject-matter is less that Rs. 5,000/-. The Division Bench took the view that where a suit is such that its subject-matter cannot be evaluated in terms so money it would be open to the plaintiff to put his how valuation on the plaintiff and such valuation would ordinarily govern the question of the jurisdiction unless the Court comes to the conclusion that it is vitiated by some improper motive such as a deliberated design to given the Court a jurisdiction which it has not Chandavarkar J. delivering the judgment of the Division Bench observed:--

'It is contended before us on the authority of Aklemannessa Bibi v. Mahomed Hatem (1904) ILR 31 Cal 849 that the suit for restitution of conjugal rights our of the this second appeal arises did not lie in the Court of the Second Class Subordinate Judge by whom it was tried because according to the Bombay Civil Court Act that Court has jurisdiction to try on suit other than that the subject-matter of which is of the value of less than Rs. 5,000 whereas a suit for restitution of conjugal rights of (it is urged) is not one the subject-matter of which can be valued. What meant by this argument is as we understand it that a suit for restitution of conjugal rights is not one the subject-matter of which can be precisely and definitely valued. In such cases the law leaves it to the plaintiff to put his own valuation on the plaint and accepts it for the purposes of jurisdiction unless it is vitiated by some improper motive such as a deliberate design to give the Court a jurisdiction which it has not. As was said in the case of Lakshman Bhatkar v. Babji Bhatkar. (1906) ILR 8 Bom 31, what prima facie determined the jurisdiction is the claim or subject-matter of the claim as estimated by the plaintiff, and this determination having given the jurisdiction the jurisdiction itself continues unless a different principle come or to make the proceedings from the first abortive'.

It is therefore, clear that where the suits is of such a nature that the subject-matter does not admit of being satisfactorily valid in terms of necessity the plaintiff is at liberty to put his own valuation on the plaint and such valuation would ordinarily be accepted by the Court as the correct valuation of the subject-matter for the purposes of jurisdiction unless the court comes to the conclusion that a wrong valuation has been put by the plaintiff out of improper motive in which case the Court would decide what should be considered to be the proper valuation. There is also implicit support for this view of the law to be found in Section 4 of the e Suits Valuation Act 1887 Section 4 provides that where a suit mentioned in clauses (c), (e), (g), (i) or (j) of paragraph (iv) in sec 6 of the Bombay Court-fees Act 1959 relates to land or interest in land of which the value has been determined by rules under Section 3. the amount at which, for purposes of jurisdiction the relief sought in the suit is valued shall not exceed the value of the land or interest as determined by those rules. Now Section 6(iv)(j) of the Bombay Court-Fees Act, 1959 refers to suits where declaration is sought with or without injunction or other consequential relief and the subject-matter in dispute is not susceptible of monetary evaluation. It is obvious on a combined reading of Section 4 and Section 6(iv)(j) that where a suit mentioned in Section 6(iv)(j) - and that would be a suit in which the subject-matter in dispute is not susceptible of monetary evaluation -- related to land or interest in land the plaintiff may value the relief sought in the suit for the purpose of jurisdiction but such valuation shall not exceed the value of the land or interest as determined by the rule made under Section 3. There two provisions read together clearly contemplated that even a in suit in which the subject-matter in dispute is not susceptible of monetary evaluation the plaintiff may put his own valuation on the relief sought in the suit for purpose of jurisdiction. Section 18 of the Bombay Pleaders Act 1920 read with the Rules in Schedule III to that Act also reinforce the same view. it is, therefore not possible to contemplate a case whether there would be no valuation of the subject-matter of a suit or proceeding for purpose of jurisdiction . There would always be a valuation of the subject-matter for the purpose of jurisdiction even in case whether the subject-matter is of such a nature that it is ordinarily not capable of being satisfactorily valued in terms of money. The concept of the subject-matter being incapable of monetary evaluation is total stranger when we are considering the valuation of the subject-matter for the purpose of jurisdiction . Since there would always be valuation of the subject-matter for the purpose of jurisdiction every suit or proceeding would necessarily fall without one or the other of the who provisions namely the third paragraph of Section 24 or Section 25. No category of suits or proceedings would be left and out of the purview of either of these two provision. On the view which we are taking. the problem posed by the first question which has been referred to us does not arise. Even if the subject-matter of a suit or proceeding is not susceptible of the monetary evaluation. it can be must be valued by the plaintiff for the purpose of jurisdiction and the jurisdiction of the court would be governed by the valuation put by the plaintiff. subject of course to correction by the Court in case of defective valuation due to improper motive. If such valuation does not exceed ten thousand rupees the suit or proceeding would be within the jurisdiction of the Civil Judge (Junior Division): if the exceeds ten thousand rupees the suit or proceeding would come within the special jurisdiction of the Civil Judge (Senior Division) . The same position would also obtain in the case of suit arising within the local limits of the ordinary jurisdiction of the Civil Judge (Senior Division) . Where there is a Joint Civil Judge (Junior Division) attached to a Civil Judge (Senior Division) the suit or proceeding would be within the jurisdiction of the Civil Judge (Junior Division) if the value of its subject-mater does not exceed ten thousand rupees otherwise, it would be triable only by the Civil Judge (Senior Division) under the second paragraph of Section 24.

7. This appears to us to be the correct position in law so far as the first question in concerned but there is also another way of the looking at this question. This is of course, in the alternative. only if it is found that the reasoning which has appealed to us in the proceeding portion of the judgment is erroneous. We shall again take for this purpose a case which arises outside the local limits of the ordinary jurisdiction of the Civil Judge (Senior Division). It is clear on a combined reading of the third paragraph of Section 24 and Section 25 and particularly the words 'pecuniary jurisdiction of the Civil Judge (Junior Division) as defined by Section 24' which occur in section 25, that the expression 'subject-matter does not exceed in amount or value ten thousand rupees' in the third paragraph of Section 24 is merely intended to lay down the limit of the pecuniary jurisdiction of the Civil Judge (Junior Division) beyond which the he cannot try a suit a or proceeding. This limit of pecuniary jurisdiction , may be raised from ten thousand rupees to fifteen thousand rupees in case falling within the proviso. But whether it be ten thousand rupees or fifteen thousand rupees. that is the limit of the pecuniary jurisdiction which the Civil Judge (Junior Division) cannot be permitted to transcend. The real question therefore which as to be answered for the purpose of determining which is the Court having jurisdiction to try a suit or proceeding is whether the subject-matter of the suit or proceeding is beyond the limit of the pecuniary jurisdiction of the Civil Judge (Junior Division). If the subject-matter exceeds the limit of the subject-matter exceeds the limit of the pecuniary jurisdiction of the Civil Judge (Junior Division) the Civil Judge (Junior Division) would have no jurisdiction to try the suit or proceeding and it would have to go before the Civil Judge (Senior Division) in the exercise of his special jurisdiction . Now where the subject-matter of a suit or proceeding is not susceptible of monetary evaluation. it my not be possible to predicate that the subject-matter exceeds the limits pecuniary jurisdiction of the Civil Judge (Junior Division) and in the that even it would not fall within the special jurisdiction of the Civil Judge (Senior Division) but would come within the ordinary jurisdiction of the Civil Judge (Junior Division). If it cannot be said of the subject-matter whatever be the reason that it does not exceed the limit of the pecuniary jurisdiction of the Civil Judge (Junior Division). it must followed as a necessary corollary that it is within the limit of the pecuniary jurisdiction of the Civil Judge (Junior Division). It will, therefore. be seen that though the test set out in the third paragraph of Section 24 is formulated in negative terms. it is really appositive test which has to be applied and that test is whether the subject-matter is within the e pecuniary jurisdiction of the Civil Judge (Junior Division) which is ten thousand rupees . To determine this we must ask the question whether the subject-matter exceeds in ten thousand rupees: if it does the suitor proceeding would be triable only by the Civil Judge (Senior Division) but if it does, not it would be within the pecuniary jurisdiction of the Civil Judge (Junior Division) and would be triable by him. If the be the correct construction of the thirds paragraph of Section 24 in its inter-relation with Section 25 it must also hold good when we read the third paragraph with the second paragraph of Section 24. This view which we are taking is also supported by the fifth paragraph of Section 23 where it has been provided that a Joint Civil Judge (Junior Division) shall dispose of such civil business with the limits of his pecuniary jurisdiction as may be referred to him. The civil business referred to him must be within the limits of his pecuniary jurisdiction : it should transgress those limits. It is. therefore. clear that even if are wrong in the first part of our reasoning a suit or proceeding in which the subject-matter is not susceptible of monetary evaluation would fall within the ordinary jurisdiction of the Civil Judge (Junior Division) under the third paragraph of Section 24 and the Civil Judge (Junior Division) would be competent to try and dispose it of.

The decision of S. H. Sheth J. in : AIR1972Guj280 (supra) which has been strongly relief upon on behalf of the appellant in our opinion,. suffers from two fallacies. One fallacy is that it projects the concept of subject-matter being incapable of monetary evaluation in to the filed of valuation for the purpose of jurisdiction. This is, for reasons which we have already discussed. not correct. The other fallacy is that it ignores the scheme of the Bombay Civil Court Act 1869 and particularly the interrelation between the third paragraph of Section 24 and Section 25. We are. therefore. of the view. with the greatest respect to the learned Judge. that this decision does not lay down the correct law.

The first question referred to us is therefore. answered as set out in this jurisdiction answered as set out in this judgment. In view of this answer to the first-question. it is not necessary for us decide the second question which has been referred to us. We accordingly send the matter back to the learned Single Judge of disposal according to law.

8. Order accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //