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A. Danapal Chetti Vs. K. Rajagopal Chetti - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.O. Nos. 195 to 197 and 206 of 1949
Judge
Reported inAIR1953Mad871; (1953)1MLJ424
ActsSuits Valuation Act, 1877 - Sections 11; Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 10
AppellantA. Danapal Chetti
RespondentK. Rajagopal Chetti
Appellant AdvocateM. Natesan, Adv.
Respondent AdvocateV. Somasundaram, Adv. for ;Govt. Pleader
Cases ReferredTirumal Rao v. Subramania Gumkkal
Excerpt:
.....of these four appeals. the learned district judge however failed to observe that section 11, suits valuation act by legislative enactment requires appellate courts in such cases to act in a particular manner. , act 5 of 1908) 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..........to decide. in an elaborate judgment, the learned district judge took the view that section 11, suits valuation act would not apply to this case.2. the relevant facts necessary for a disposal of these appeals are these: one kadirvelu chetti executed five sale deeds in his lifetime in favour of three persons. after his death, his son rajagopala chetti executed a sale deed in favour of one pattu chetti of the property covered by these alienations ignoring the father's alienation as being sham and nominal. these four suits resulted. overruling some objections raised, the learned district munsif, as it appears to me, quite rightly tried the four suits on common evidence raising as they did the substantial issue as to whether the alienations of the father kadirvelu chetti were valid and.....
Judgment:

Mack, J.

1. This batch of four appeals arise out of a judgment in four appeals, A. S. Nos. 85, 96, 100 and 145 of 1948 in which the learned District Judge of Chingleput on 9-2-49 remanded four suits, viz., O. S. Nos. 368, 302. 379 and 80 cf 1945 disposed of by the District Munsif of Trivellore in a common judgment for fresh disposal. He held in appeal that one of the suits O. S. No. 80 of 1945 was beyond the financial jurisdiction, of the District Munsif and directed the return of that plaint for presentation to the proper Court. Holding that the District Munsif had no jurisdiction to try O. S. Mo. 80 of 1945, he took the view that the common trial of the four suits was without jurisdiction, and that the logical consequence was to set aside the decrees and judgments even of the three suits tried by the District Munsif which he had admittedly full jurisdiction to decide. In an elaborate judgment, the learned District Judge took the view that Section 11, Suits Valuation Act would not apply to this case.

2. The relevant facts necessary for a disposal of these appeals are these: One Kadirvelu Chetti executed five sale deeds in his lifetime in favour of three persons. After his death, his son Rajagopala Chetti executed a sale deed in favour of one Pattu Chetti of the property covered by these alienations ignoring the father's alienation as being sham and nominal. These four suits resulted. Overruling some objections raised, the learned District Munsif, as it appears to me, quite rightly tried the four suits on common evidence raising as they did the substantial issue as to whether the alienations of the father Kadirvelu Chetti were valid and for consideration or were sham and nominal. He found that the five sale deeds were true and real and decreed the four suits accordingly. There was no objection as regards jurisdiction taken before him as regards any suit.

3. The point of jurisdiction arose in the appellate Court as regards one suit, O, S. No. 80 of 1945 in this way. This was a suit filed by Kadirvelu Chefti's son Rajagopala Chetti for the recovery of Rs. 1673-8-0 as mesne profits from the vendees from his father under two of the sale deeds, which he sought to ignore as sham, and nominal. An issue as regards court-fee was framed in the suit, but the plaintiff later paid court-fee of Rs, 15 on each declaration sought as regards each sale deed.

4. In A. S. No. 145 of 1948 filed against this decision, court-fee appears to have been paid only on the mesne profits sought. The court-fee examiner took an objection that court-fee of Rs. 15 for each declaration should have been collected in the appeal also. This court-fee objection was heard by the learned District Judge who went much further than the court-fee examiner, and upheld a point taken by his own office in their explanation on the court-fee examiner's objection, that 'ad valorem' court-fee should be paid on the consideration appearing on both these sale deeds, i.e., Rs. 2000 and Rs. 300 respectively. That took the suit, of course, out of the jurisdiction of the District Munsif. After the learned Judge had given his finding the deficit court-fee was paid. When the appeals came up for hearing, the learned Advocate for the appellants made capital out of the jurisdiction position arising out of the learned District Judge's finding as regards court-fee in this one suit and advanced arguments which prevailed with the District Judge.

5. I am with respect quite unable to follow how he came to the conclusion that Section 11, Suits Valuation Act does not apply to this case. In my opinion, it clearly applies and the learned District Judge had jurisdiction to dispose of these four appeals. Section 11, Suits Valuation Act was specially enacted, as it appears to me to provide for such cases where no objection as regards jurisdiction was raised in the trial Court and on mere grounds of under-valuation or over-valuation it is found in the appellate Court that strictly and technically the suit was outside the jurisdiction of the trial Court. The learned District Judge relied on two Bombay decisions reported in -- 'Bai Mahkor v. Bulakhi Chaku', 1 Bom 538 (A) of the year 1874 and -- 'Babaji v. Lakshmibai', 9 Bom 266 (B) of the year 1884, which took the view that an appellate Court finding that the Court of first instance had no jurisdiction should have ordered the plaint to be returned. The learned District Judge overlooked the fact that the Suits Valuation Act became law in 1887 and Section 11 appears to have been specially enacted to provide for that prevailing view. The District Judge was also inclined to accept the view placed before him that under Order 7, B. JO, C. P. C., the appellate Court was bound to do what this rule required of a Court of first instance, viz., to return the plaint as soon as it finds that it had no jurisdiction.

6. Mr. D. Ramaswami Aiyangar for the appellant-plaintiff in A. S. 145/48 has argued that under Section 107(2), C. P. C. the appellate Court shall have the same powers as are conferred on Courts of original jurisdiction in respect of suits instituted therein. The learned District Judge however failed to observe that Section 11, Suits Valuation Act by legislative enactment requires appellate Courts in such cases to act in a particular manner.

Proviso (b) to Section 11 directly governs cases of this kind, and I am quite unable to appreciate the argument of Mr. Ramaswami Aiyangar that it does not apply. The relevant portion of Section 11 may be reproduced here: 'Notwithstanding anything in Section 578, C. P. C. (now Section 99, C, P. C., Act 5 of 1908) 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.'

7. The effect of this section, as it appears to me, is quite clear. The learned Advocate is unable to cite before me a single decision in which an appellate Court has, subsequent to, 1887, directed a plaint to be returned to these Court having jurisdiction when no objection to jurisdiction had been taken during the trial and when lack of jurisdiction was found to result from a mere under-valuation in the plaint. Under proviso (b), this course can only be adopted when the under-valuation or overvaluation has in the opinion of the appellate Court, prejudicially affected the disposal of the suit on its merits. There is no such finding in the present elaborate order of remand by the learned District Judge nor does that aspect arise for consideration in view of the finding of the District Judge that Section 11 had no application at all. The facts of this case are on all fours with -- 'Gangadhara Ramarao v. Province of Mad ras', AIR 1947 Mad 135 (C) a decision by Chandrasekhara Aiyar J. (as he then was). That was a more extreme case than the present in which an objection to pecuniary jurisdiction was taken at the earliest opportunity before the District Munsif, who held that the suit was properly valued and disposed it of on merits. On appeal, the Subordinate Judge differed from the District Munsif and held that the suit was under-valued, and without hearing the appeal directed the return of the plaint for presentation to the proper Court. It was held that Section 11(b), Suits Valuation Act governed the case and the lower appellate Court was directed to take back the appeal on its file and dispose of it according to law. In the case before me, no objection to jurisdiction was even taken before the trial Court. The appellant in O. S. No. 80 of 1845 proceeded to judgment in a forum of his own choice, and it is clearly not open to him on the simple principles governing Section 11, Suits Valuation Act and the specific requirements of this section to capitalise an under-valuation of his plaint for the purpose of having his suit retried by another Court.

8. A Full Bench of the Lahore High Court in -- 'Sardar Khan v. Aisha Bibi', AIR 1925 Lah 290 (D) also held that Section 11, Suits Valuation Act governs all cases of erroneous valuation irrespective of the question as to whether the value of the suit is determined by rules having the force of law or in any other manner. A difficulty placed before the learned District Judge which he found to be a real one, was the argument that in this particular case there was neither over-valuation nor under-valuation but valuation on an erroneous basis. This is one of the grounds which, though the two decisions -- AIR 1947 Mad 135 (C) and -- AIR 1925 Lah 290 (D) were placed before him, led him to the conclusion that Section 11 would not apply. He observed that what was meant by over-valuation or under-valuation has not been specifically decided. As it appears to me overvaluation or under-valuation must rest on some erroneous basis. There js also direct authority, if authority were needed for this position, in -- 'Ammalu Animal v. Krishnan Nair, AIR 1920 Mad 1017 (E) in which a learned Bench of this Court agreeing with the opinion of Kumaraswami Sastri J. in -- 'Tirumal Rao v. Subramania Gumkkal', AIR 1920 Mad 843 (F) held that the words 'over-valuation and under-valuation' include erroneous valuation caused by misapplication of a section of the Court-fees Act.

9. I find with respect to the learned District Judge that Section 11, proviso (b), Suits Valuation Act directly governs this case. The order of remand, which would result in three suits of 1945 being retried by a District Munsif and another suit of 1945 being presented in the Court of a Subordinate Judge for trial is set aside. The learned District Judge in my view clearly had jurisdiction to dispose of these appeals, which are sent back to the District Court with a direction that they be given as expeditious a disposal as possible, in view of these suits having been instituted more than seven years ago. The costs of these appeals will irrespective of the result be paid by the respective respondents. The order directing refund of the court-fees paid on the appeals, to the appellant is cancelled.

10. Leave to appeal refused.


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