Walter Salis Schwabe, K.C., C.J.
1. In this case the suit was commenced before the District Munsif and it appears that there was an undervaluation of the suit. If it had been properly valued, the case would not have gone to the District Munsif but would have gone to the Subordinate Judge, in the first instance, and thence on appeal to the High Court instead of to the District Court and on second appeal to the High Court as is the case in decisions from District Munsifs. This objection to jurisdiction by reason of undervaluation was taken before the District Munsif who held that he had jurisdiction and heard the case. There was an appeal from him to the District Court, the lower appellate Court in this case. The District Judge held also that the suit was not undervalued but he also held that, if the suit were undervalued, still its valuation had not prejudicially affected the disposal of the suit on its merits. That decision on appeal comes to this Court by way of Second Appeal and, there having been a difference of opinion, it is referred to a Full Bench.
2. The question turns on the proper interpretation of Section 11 of the Suits Valuation Act of 1887 which provides that objections to jurisdiction, by reason of overvaluation or undervaluation of a suit or appeal, are hot to be entertained by an appellate Court, unless the objection is taken in the Court of First Instance or in the lower appellate Court and the appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit or appeal was overvalued or undervalued and that the overvaluation or undervaluation thereof has prejudicially affected the disposal of the suit or appeal on its merits. It is contended before us that the District Judge was wrong because the mere fact of undervaluation, involving a trial before the District Munsif, must be prejudicial to the unsuccessful party, because an appeal from him lies to a District Court and then to the High Court by Second Appeal where questions of fact are not open to discussion, whereas, if the suit had been brought originally before the Subordinate Court, it would come by first appeal to this Court where questions of fact are open to discussion. In my judgment, the clause of the Suits Valuation Act, when referring to prejudicially affecting the disposal of a suit or appeal on its merits, is not considering at all the different rules of procedure that there may be on appeal from one Court to another Court. If, as has been contended before us., the mere fact of there being some different rules in the procedure on appeal must prejudicially affect the disposal of a suit on its merits, the section has really no meaning at all, because in every case from a District Munsif to a lower Appellate Court, where there had been undervaluation the appeal would have to be allowed and a new trial ordered, because the trial on its merits was prejudiced and that in my judgment, is absurd. There is ample authority of this Court that the lower Appellate Court in such a case not only has jurisdiction to hear the appeal from a District Munsif who has exceeded his jurisdiction but that it must do so unless it is satisfied, as required by Section 11 of the Suits Valuation Act, first, that the point was taken, and secondly, that the decision on the merits was prejudicially affected. See Raghavachariar v. Raghavachariar 20 M.L.J. 726, Narayani Ammal v. Secretary of State (1918) 41 I.C. 167 , Ammalu Ammal v. Krishnan Nair (1916) 62 I.C. 715. There is a decision to the contrary in Mohini Mohan Misser v. Gour Chandra Rai (1921) 5 P.L.J. 397. With that decision I do not agree. The point was also discussed in Sidappa Venkatrao v. Rachappa I.L.R. 36 B. 628, but the point at present before the Court is not decided there.
3. Our answer to the question, therefore, is that the second appeal must be heard on its merits. The same point arises in Second Appeal No. 287 of 1920 which is also referred to us and our answer in that case must be the same.
Old field, J.
4. I agree.
Coutts Trotter, J.
5. I am of the same opinion and I should have thought that the contention put before us was absolutely unarguable were it not that it apparently has commended itself to at least one Bench of Judges in this country. I take it that the object of Section 11 of the Suits Valuation Act is to provide a machinery for curing the original lack of jurisdiction in such circumstances. If it does not do that, it does nothing else : yet, it is argued before us that, if you once start a suit in one Court which decides prejudicially on the merits, the section has no power to cure the original lack of jurisdiction which remains uncured to the end; that is to say, that the section gives you something with one hand and immediately takes it away with the other. Mr. Ananthakrishna Ayyar did not contend otherwise than that the 'Court of First Instance' referred to in Sub-section 1(a) of Section n must mean not the Court in which the suit ought to have been started, but the Court in which it was, in fact, started. It seems to me to follow from that, beyond a possibility of question, that, in Sub-section 1(b) when we get to talking about 'Appellate Court,' that means not the Court in which the appeal should have been started in the first instance but the Court to which it did, in fact, go and ought to have gone if the lack of jurisdiction were to be condoned. In this case in fact it was condoned. In my opinion, the only possible answer to this reference is the one proposed by my lord.