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Bai Dhangauri Wd/O Nagindas Bhagwandas and anr. Vs. Jayantilal Nagindas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1983)2GLR1491
AppellantBai Dhangauri Wd/O Nagindas Bhagwandas and anr.
RespondentJayantilal Nagindas and ors.
Cases ReferredKiran Singh and Ors. v. Chaman Paswan and Ors.
Excerpt:
.....submitted that the lower appellate court has failed to take into consideration section ii of the suits valuation act, 1887. he read before me section ii of the suits valuation act and it is necessary that section 11 is reproduced here. (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 suit or appeal was over-valued or under-valued and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit on appeal or its merits. section 11(d(b) specifically provides that an objection that by reason of the..........no. 1, jayantilal nagindas, filed regular civil suit no. 216 of 1972 in the court of the civil judge (j.d.), surat for a declaration to set aside the release-deed alleged to have been executed by him and also for partitioning his share in certain proper-ties and for some other reliefs. the petitioners nos. 1 and 2 were the defendants nos. 2 and 3 in the suit respectively. the respondents nos. 2,3 and 4 were the defendants nos. 4, 5 and 6 respectively in the suit. the suit was contested by the defendants. one of the contentions raised by the original defendants nos. 1 to 3 was that the court had no jurisdiction to entertain the suit and in view of the said contention the trial judge raised issue no. 14 as to whether the court has no jurisdiction to try the suit.2. the trial.....
Judgment:

D.H. Shakla, J.

1. The respondent No. 1, Jayantilal Nagindas, filed Regular Civil Suit No. 216 of 1972 in the Court of the Civil Judge (J.D.), Surat for a declaration to set aside the release-deed alleged to have been executed by him and also for partitioning his share in certain proper-ties and for some other reliefs. The petitioners Nos. 1 and 2 were the defendants Nos. 2 and 3 in the suit respectively. The respondents Nos. 2,3 and 4 were the defendants Nos. 4, 5 and 6 respectively in the suit. The suit was contested by the defendants. One of the contentions raised by the original defendants Nos. 1 to 3 was that the Court had no jurisdiction to entertain the suit and in view of the said contention the trial Judge raised issue No. 14 as to whether the Court has no jurisdiction to try the suit.

2. The trial Judge by his judgment and order dated 3-12-1977 was pleased to dismiss the suit of the plaintiff. Being aggrieved and dissatisfied with the trial Court's judgment, the plaintiff preferred Regular Civil Appeal No. 71 of 1978.

3. The learned Second Extra Assistant Judge, Surat by his judgment and order dated 30-9-1980 allowed the appeal and set aside the judgment and order passed by the trial Court, except the finding of the trial Court that it had no pecuniary jurisdiction. The finding of the trial Court as regards the question of pecuniary jurisdiction was con-firmed by the lower appellate Court. The lower appellate Court further directed that the plaint be returned to the original court of institution i. e. to say the Court of the Civil Judge (S.D.), Surat. It further directed, inter aha, that the Civil Judge (S.D.) shall register the suit as a special suit and shall dispose it of in accordance with law. It directed the plaintiff to put the valuation for the purpose of jurisdiction at Rs. 20,640-33 ps. in the first instance.

4. I may note here that the lower appellate Judge in this judgment dealt with the question of jurisdiction alone. The first point for determination which he framed was whether the trial Court had pecuniary jurisdiction to try the suit and he found that issue in the negative. The second point for determination was as to whether the decision on other points would survive if the trial Court was not found to have jurisdiction and be answered that point for determination in the negative. On point for determination No. 3, he came to the conclusion that the suit was required to be returned to the plaintiff for presentation to the proper Court and in that regard he held that the suit was required to be sent back to the Court of the Civil Judge (S.D.).

5. Mr. B. J. Shelat, the learned Advocate for the petitioner, submitted that after the judgment and order of the Civil Judge (J.D.) was passed on 3-12-1977, the pecuniary limits of the Civil Judge (J.D.) is raised from Rs. 10,000/- to Rs. 20,000/- by Gujarat Act No. XX of 1979 which came into effect from 1-1-1980. Mr. Shelat submitted that the lower appellate Judge has committed an error in coming to the conclusion that the valuation of the suit for the purpose of jurisdiction was Rs. 20,640-33 ps. He invited my attention to page 78 of the compilation where in the relevant part of the judgment, the trial Court held to the effect that 'the share of the plaintiff will be in all Rs. 15640/-'. Mr. Shelat submitted that if in this context para 10 of the judgment of the lower appellate Court is read, it will be found observed that the finding recorded by the trial Court on the question of issue No. 14 is quite proper. The lower appellate Judge, however, added the court-fees payable on the relief about the declaration on the question of release deed and he added the court-fees payable for that independent relief to the Court-fees payable on the amount of Rs. 15,640-33ps. By adding the amount of court-fees the lower appellate Court came to the conclusion that the pecuniary valuation of the suit for the purpose of jurisdiction would be Rs. 20,640/-. Mr. Shelat submitted that this is not correct as for the purpose of jurisdiction the court-fees payable on each of the reliefs is not required to be clubbed. Mr. Shelat maintained that therefore even if the order of remand made by the lower appellate Court is to be retained, its ultimate finding will be required to be disturbed inasmuch as the suit shall have to be directed to be heard by the Court of the Civil Judge (J.D.) since the pecuniary limit of the Civil Judge (J.D.) is increased with effect from 1-1-1980 by the Gujarat Act No. XX of 1979. Mr. Shelat submitted that this will be an exercise in futility. Rightly or wrongly, the trial Court decided all the issues which were raised before it, despite the fact that it came to the conclusion that it had no pecuniary jurisdiction to try the suit. Mr. Shelat submitted that it would serve no useful purpose to either parties to send back the suit for retrial only on account of the finding of both the Courts that trial Court did not have pecuniar jurisdiction to try the suit.

6. Miss V.P. Shah, learned Advocate for the original plaintiff, submitted that she did agree with Mr. Shelat that to send back this suit to the trial Court would be an exercise in vain, but she did not agree with Mr. Shelat that the suit was required to be remanded for a fresh trial to the Court of the Civil Judge (J.D). She submitted that under Section 11(2) of Gujarat Act No. XX of 1979, the pending suits were saved from the operation of Gujarat Act No. XX of 1979 and since the present suit must be deemed to be a pending proceeding before the trial Court, the trial Court, i.e. to say the Court of Civil Judge (J. D.) would still be lacking in the pecuniary jurisdiction, notwithstanding Gujarat Act No. XX of 1979.

7. Mr. Shelat submitted that ultimately a question of jurisdiction is raised on account of contention raised in the written statement to that effect, but at this juncture he makes a statement at the Bar that the contention about the jurisdiction of the Court is not pressed and he waives that contention altogether Mr. Shelat submitted that the effect of the waiver would be that there would be left no question of jurisdiction now to be tried and if that be so the order of remand passed by the lower appellate Court should be quashed and the lower appellate Court must be directed to dispose of the appeal on all the questions raised before him, excepting the question of jurisdiction.

8. Mr. Shelat further submitted that apart from the question of waiver of the contention about the pecuniary jurisdiction of the Court, it was not quite proper for the lower appellate Court to come to the conclusion that the matter should be remanded for a fresh trial by the Court of the Civil Judge (J.D.). Mr. Shelat submitted that the lower appellate Court has failed to take into consideration Section II of the Suits Valuation Act, 1887. He read before me Section II of the Suits Valuation Act and it is necessary that Section 11 is reproduced here.

11. (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 suitor 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 suit or appeal was over-valued or under-valued and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit on appeal or its merits.

Section 11(D(b) specifically provides that 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 no jurisdiction with respect thereto, unless the appellate Court was satisfied, for reasons to be recorded by it, in writing, that suit or appeal was over-valued or under-valued, and that the over-valuation or under-valuation thereof had prejudicially affected the disposal of the suit or appeal on its merits. Mr. Shelat submitted that such satisfaction as required under Section 11(D(b) of the Suits Valuation Act was nowhere recorded by the lower appellate Court. Such a satisfaction, Mr. Shelat submitted, is statutory requirement and non-compliance with it vitiated the order of remand. Mr. Shelat further invited my attention to Section 21 of the Code of Civil Procedure and pinpointed his argument basing it on Section 21(2) of the Code of Civil Procedure. Section 21(2) of the Code of Civil Procedure reads as under:

21. (2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was that in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

9. He emphasised that the objection as regards the competence of the Court with reference to the pecuniary limits of its jurisdiction could be allowed by the appellate or revisional 'Court only if there was a consequent failure of justice and provided that such an objection was taken in the Court of the first instance at the earliest possible opportunity, and in all cases where issues are settled at or before such statement.

10. The submissions made by Mr. Shelat are supported by a judgment of the Supreme Court in the case of Kiran Singh and Ors. v. Chaman Paswan and Ors. : [1955]1SCR117 . It is observed therein as under:

The principle that underlies Section II, Suits Valuation Act, 1887, is that a decree passed by a Court, which would have had no jurisdiction to hear a suit or appeal bill for overvaluation 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.

11. It is further observed therein as under:

The same principle has been adopted in Section 21, Civil P.C., with reference to the objections relating to territorial jurisdiction. The policy underlying Section 21 and Section 99, Civil 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 reverse 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.

12. The perusal of the judgment of the lower appellate Court has satisfied inc that Mr. Shelat's submissions have a good deal of force in them. I do not find any satisfaction recorded by the lower appellate Court in its judgment. It does appear to me under the circumstances of the case that to remand the matter of the trial Court would be an exercise in futility.

13. In the result, therefore, I quash the order of judgment and order of the lower appellate Court passed on 30-9-1980 in Regular Civil Appeal No. 71 of 1978 for its disposal according to law. The matter is, therefore, remanded to the District Court, Surat to place for hearing afresh Regular Civil Appeal No. 71 of 1978 for its disposal according to law. For the sake of clarity, it is directed that the appeal shall be heard afresh on all questions raised in the appeal including the question of jurisdiction. Rule is accordingly made absolute with no order for costs.


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