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Ayisha Bi Bi Vs. Muhammad Sadakathulla Marcair and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1947)1MLJ208
AppellantAyisha Bi Bi
RespondentMuhammad Sadakathulla Marcair and ors.
Cases ReferredKhadir Hussain Rowther v. Jamila Bibi
Excerpt:
.....court in such a case not only has jurisdiction to hear the appeal from a district munsiff 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......the appeal must lie to the high court.3. in this connection, the provisions of section 11 of the suits valuation act are important. sub-section 1 of that section provides thatan objection that by reason of the over-valuation or under-valuation of suit or appeal, a court of first instance or lower appellate court which had no 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.....
Judgment:

Wadsworth, J.

1. All these three matters arise out of an order in appeal from the decision in O.S. No., 391 of 1942 on the file of the District Munsif's Court, Cuddalore, which was a suit for partition and possession of the share of the widow in the estate of one Khadirsa Maracair. The total value of the estate was approximately Rs. 41,000, in which the plaintiff's share was just under Rs. 3,000. The plaintiff valued the suit for purposes of jurisdiction at Rs. 2,979-10-2, treating it as a suit for partition. The suit was decreed in part and an appeal was preferred to the District Court of South Arcot, but was transferred to the Court of the Subordinate Judge, Cuddalore. The respondents took a preliminary objection that the suit filed as a suit for partition was, in substance, a suit for administration of the estate of the deceased Khadirsa Maracair and should have been valued on the total value of the estate. Accepting this contention and relying on the decision of King, J., in Khadir Husain Rowther v. Jamila Bibi : AIR1943Mad242 , the learned Subordinate Judge held that the only Court which could hear the appeal is the High Court. The memorandum of appeal was therefore returned for presentation to the proper Court. Against this order, C.M.A. No. 209 of 1946 and, in the alternative, C.R.P. No. 336 of 1946 have been preferred. The connected C.M.P. No. 1585 of 1946 has been filed by way of abundant caution, praying that in case the High Court holds that the appeal lies to this Court, the delay may be excused and the memorandum of appeal may be received.

2. It is now conceded that no appeal lies against an order returning the memorandum of appeal and that the correctness of the lower appellate Court's order can only be canvassed in the civil revision petition. Section 12 of the Madras Civil Courts Act provides that the jurisdiction of a District Munsif extends to 'all like suits not otherwise exempted from his cognizance, of which the amount or value of the subject-matter does not exceed Rs. 3,000.' Section 13 of that Act provides that appeals from the decrees and orders of the Subordinate Judges and District Munsifs shall, when such appeals are allowed by law, lie to the District Court, except when the amount or value of the subject-matter of the suit exceeds Rs. 5,000, in which case the appeal shall lie, to the High Court. For the petitioner it is contended that the provisions of Section 13 has to be read along with the provisions of Section 12 of the Act and that Section 13 does not contemplate an appeal to the High Court from a decree of the District Munsif's Court even though on a proper valuation of the suit tried by the District Munsif's Court, the subject-matter thereof would exceed Rs. 3,000. On the other hand, the respondent contends that the combination, of the provisions regarding appeals from decrees of Subordinate Judges and appeals from decrees of District Munsifs into a single clause providing that such appeals shall lie to the District Court except when the value of the subject matter exceeds Rs. 5,000, in which case the appeals should lie to the High Court, clearly contemplates the contingency of a decree by the District Munsif in a suit, the subject-matter of which exceeds the proper jurisdiction of that Court and in such a case if the subject-matter is more than Rs. 5,000 under the plain provisions of Section 13, the appeal must lie to the High Court.

3. In this connection, the provisions of Section 11 of the Suits Valuation Act are important. Sub-section 1 of that section provides that

an objection that by reason of the over-valuation or under-valuation of suit or appeal, a Court of first instance or lower appellate Court which had no 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 under-valued, and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.

Sub-section 2 provides that,

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.

4. Now, turning to the facts of the present case, it does not appear that there was any objection to the valuation of the suit in the trial Court. Objection was raised for the first time in the lower appellate Court, and it is contended for the petitioner that under such circumstances it was the duty of the appellate Court to proceed with the hearing of the appeal as if the trial Court had jurisdiction to entertain the suit, with the consequence that the appeal would lie to the Court which would have had jurisdiction on the basis of the valuation in the plaint. The petitioner relies strongly on the decision in Kannayya Chetti v. Venkatanarasayya (1916) 32 M.L.J. 221 : I.L.R. 40 Mad. 1. That was a case in which the District Munsif in a suit for accounts, the plaint of which valued the relief at less than Es. 3,000, passed a decree for more than Rs. 5,000, and it was held that under Section 13 of the Madras Civil Courts Act the appeal from the District Munsif's decree lay to the District Court and not to the High Court. In the order of reference the learned Judges point out that in every case where the Court' is seized of jurisdiction it cannot and does not lose it by any change in the value of the-subject-matter of the suit after the institution of the suit or by the precise ascertainment of its value in cases which do not admit of such ascertainment at the time of institution, except when the plaint is allowed to be amended . In dealing with the question of the forum of appeal, they say,

We think that the same simple rule should be applied, namely, that the amount or value of the subject-matter as fixed in the plaint should determine the Court to which the appeal lies. It is to be observed that the words 'amount or value of the subject-matter of the suit' occur both in Sections 12 and 13 of the Civil Courts Act and the words should be given the same meaning in both the sections in the absence of any indication either from the context or otherwise that they were used in different senses.

5. The learned Judges quote the dictum of Sir V. Bhashyam Aiyangar, J., in Krishnamachariar v. Mangammal I.L.R. (1903) Mad. 91. that the theory of an appeal is that the suit is continued in the Court of Appeal and reheard there. They point out that the provision in the Court-Fees Act for the levying of additional fees on the plaint when the suit comes before the Court of Appeal if that Court finds the suit has been under-valued, is based on the assumption that the value of the suit is the same in the original Court and in the Court of Appeal. They therefore conclude that reading Sections 12 and 13 of the Madras Civil Courts Act together there can be no doubt that appeals from decrees of the District Munsifs lie only to the District Court and that the amount or value of the subject-matter of the suit, whether in the Court of Appeal or in the trial Court, is the amount as fixed in the plaint. This view was accepted by the Full Bench and it is contended that on the authority of this case the fact that in the trial Court the suit was valued on a wrong basis so as to give jurisdiction to the District Munsif in a matter which should have been taken only by higher Court, will not alter the jurisdiction in appeal which will proceed on the footing of the valuation in the plaint. In Kelu Achan v. Cheriya Parvathi Nethiar : (1923)45MLJ135 the question was whether by reason of the under-valuation of the suit which was instituted in the District Munsiff's Court, though it should have been valued at more than Rs. 5,000 and instituted in the Court of the Subordinate Judge, the fact that the party was thereby deprived of the right of first appeal on facts to the High Court which was dealing with the matter in second appeal, can be deemed to affect prejudicially the disposal of the suit or appeal on the merits so as to fall within the terms of Section II, Sub-section 2 of the Suits Valuation Act and to require the retrial of the suit by the proper Court. The decision of the Full Bench was that there was no such prejudice. It seems clear that this decision proceeds on the assumption that the erroneous value of the subject-matter of the suit as fixed in the plaint will determine the forum of appeal. Schwabe, C.J., states:

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 Munsiff 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.

Coutts-Trotter, J., as he then was, states:

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 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....It seems to me to follow from that, beyond a possibility of question, that in Sub-section 1(6) 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.

The other learned Judge agreed with this view. It seems to us quite clear that the learned Judges in this decision took the same view as that which is found in the order of reference in Kannayya Chetti v. Venkatanarasayya (1916) 32 M.L.J. 221 : I.L.R. 40 Mad. 1. namely, that, regarding Sections 12 and 13 of the Madras Civil Courts Act together, when a suit is entertained by the District Munsiff's Court, on the basis of its own valuation, that valuation will determine the forum of the appeal and nothing in Section 13 of that Act will justify the entertainment of an appeal by the High Court from the decision of the District Munsiff's Court, even though on a correct valuation the suit should have been tried by the Court of the Subordinate Judge and the appeal should have been laid to the High Court.

6. In the light of these two Full Bench decisions, it seems unnecessary to look for further authority. The respondent has quoted the decisions in Vasudeva v. Madhava I.L.R. (1892) Mad. 326 and Jalladeen Marakayar v. Vijayasami (1915) 29 M.L.J. 142 : I.L.R. 39 Mad 447 both of which were anterior to the Full Bench decision in Kannayya Chetti v. Venkatanarasayya (1916) 32 M.L.J. 221 : I.L.R. 40 Mad. 1. and are not referred to in the judgment in that case. We do not think it is necessary to consider these decisions in detail, for the decision in the later Full Bench case binds us. It has, however, been pointed out that in Raghavachariar v. Raghavachariar (1893) 20 M.L.J. 726. Muthuswami Aiyar, J., who was a party to the decision in Vasudeva v. Madhava I.L.R. (1892) Mad. 326 has taken a different view. As to the decision of King, J., in Khadir Hussain Rowther v. Jamila Bibi : AIR1943Mad242 on which the learned Subordinate Judge has relied, the attention of the learned Judge does not appear to have been drawn to the Full Bench cases cited above. In Bhujam Sriramulu Chetti, In re : (1945)1MLJ162 . Happell, J., has followed the rule that the valuation of the suit in the plaint determines the forum of appeal unless and until the plaint has been amended. It seems to us that this is a salutary rule which has the great advantage of removing the uncertainty which would otherwise prevail as to the proper procedure, to the great detriment of the litigant public. We do not think it necessary to go into the decisions which the respondent has quoted under Section 110 of the Code of Civil Procedure regarding the value of the subject-matter of the suit for purposes of appeal to the Privy Council. In this view we allow the civil revision petition with costs and remand the case to the Court of the Subordinate Judge, Cuddalore, for disposal on the merits.

7. C.M.A. No. 209 of 1946 and C.M.P. No. 1585 of 1946 are dismissed and there is no order as to the costs. The memorandum of appeal in S.R. No. 2565 of 1946 will be transmitted to the Court of the Subordinate Judge, Cuddalore.


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