1. This is an appeal preferred against the Decree and Judgment of the learned Additional Subordinate Judge, Salem, in A.S. No. 140 of 1953, reversing the Decree and Judgment of the learned District Munsif of Salem in O.S. No. 362 of 1951.
2. The facts are: The plaintiff Akkammal, widow of one Venkiti Naickan who died in Mardh 1946, sued her parents-in-law, defendants one and two, and her brother-in-law, the third defendant, for partition in regard to non-agricultural lands and properties, and maintenance on the basis of the agricultural lands. The defendants contested the suit on the ground that the first item of the plaint A Schedule is the separate property of the second defendant and is not partible and similarly the second item of the A Schedule is a promissory note debt due by Kuppa Naicker to the second defendant, that items 1 to 6 of the plaint B Schedule are the stridhana properties of the second defendant and that the second defendant had already sold items 2 and 3 to one Akkandi Naicker about ten years ago and that the 7th item belongs to the second defendant by purchase and is her separate property and that therefore the B Schedule properties are not partible and on the basis of which the maintenance claim of the plaintiff cannot be assessed. The learned District Munsif found that the A Schedule properties belonged to the joint family and as regards B Schedule properties, the plaintiff having given up items 2 and 3 therein, those items 1 and 4 to 7 are liable to be charged for the maintenance claim of the plaintiff. Therefore, he gave a decree for partition of the plaint A Schedule properties and the outstandings mentioned in Exhibits B-3 to B-II and created a charge on the 1/3rd share of items 1 and 4 to 7 of the plaint B Schedule properties in respect of the maintenance decreed by him at Rs. 180 per annum. The Court-fee due to the Government was made payable by the defendants. There was an appeal by the defendants. In appeal, as the order-sheet shows, when the matter was taken up for hearing on 16th January, 1954, it appeared to the learned Subordinate Judge that the suit did not appear to have been properly valued and therefore he posted the appeal for arguments about the valuation of the suit to 18th January, 1954. On 18th January, 1954, he heard arguments and pronounced Judgment setting aside the Decree and Judgment of the lower Court and directing the plaint to be returned for being presented to the Court having jurisdiction. The respondent plaintiff was made to pay half the costs of the appeal to the appellants-defendants.
3. If the matter had really stood thus, there would have been no complication because when in this case no objection was taken in the Court of the first instance at any time to the jurisdiction on the ground of under-valuation of the suit, under Section 11 of the Suits Valuation Act and the merits of the case had not been shown to have been affected, the appellate Court could not entertain such an objection, and would have to proceed as if there was no defect of jurisdiction. Section 11 of the Suits. Valuation Act has been precisely enacted to meet such contingencies. The object of the Legislature in enacting Section 11 was to ensure that the time and labour spent by a Court in deciding a case should not be wasted, if the party concerned has joined issue and gone to trial upon the merits without raising objection to the pecuniary jurisdiction of the Court at the earliest opportunity: Sardar Khan v. Aisha Bibi I.L.R. (1925)Lah. 105 : I.L.R. 1925 Lah. 290 : 88 Ind.Cas. 72. The object of the Legislature in enacting Section 11 of the Suits Valuation Act and Section 21 of the Code of Civil Procedure is the same viz., that the defect of jurisdiction on territorial or pecuniary ground should not render proceedings in a case abortive if such objection was not taken at the earliest opportunity, and there has been no consequent failure of justice. The object of Section 11 of the Suits Valuation Act is to provide a machinery for curing the original lack of jurisdiction and simply placing over-valuation and under-valuation on the same footing with other curable irregularities: Per Coutts Trotter, J., in Kelu Achan v. Pawathi Nethiyar : (1923)45MLJ135 . The language of Section 11 is comprehensive enough to include all cases of valuation relating to the facts giving jurisdiction as contradistinguished from a question of inherent jurisdiction and does not suggest any distinction between cases in which the valuation depends upon rules having the force of law and those in which the valuation is determined otherwise. Sardarkhan v. Aisha Bibi I.L.R. (1925) Lah. 105 The general principle relating to jurisdiction is that neither consent nor waiver by a party to the suit can confer jurisdiction upon a Court which has no inherent jurisdiction and that jurisdiction over the subject-matter of a suit can be given only by law: Ledgard v. Bull ., Minakshi v. Subramanya , Kalyan Dayal v. Kalyan Narer I.L.R. (1884) Bom. 259, Debi Singh v. Hanuman Upadhya I.L.R. (1881) All. 747, Bibi Dadli Begam v. Bibi Raja Rabia I.L.R. (1888) Bom. 650, Ramaswami Chettiar v. R.G. Orr. : (1902)12MLJ264 , Kollapara Seetapaty v. Kantipati Subbayya (1909) 20 M.L.J. 264 : I.L.R. 33 Mad. 323. The principle on which Section 11 of the Suits Valuation Act is enacted, provides an exception to the above general principle. In fact, in the instant case not only was there no objection to the jurisdiction on the score of under-valuation in the Court of the first instance on the foot of which alone an appellate Court can entertain the objection, but even if such an under-valuation had been objected to in the Court of the first instance in proper time, the appellate Court unless satisfied that this under valuation has prejudicially affected the disposal of the suit on the merits, should have proceeded to dispose of the appeal on the materials on record: Kelu Achan v. Parvathi Nethiyar : (1923)45MLJ135 , Moolchand Motilal v. Ramakrishna : AIR1933All249 , Vedaji Bhaskara v. Subramania Gurukkal 52 Ind.Cas. 992, Ammalu v. Krishnan Nair 62 Ind.Cas. 715, Musa Imran v. Bhagawan Das : AIR1927All359 , Chelamayya v. Lakshmi : AIR1925Mad171 , Govinda Menon v. Karunakara I.L.R. (1900) Mad. 43, Narayani Ammal v. Secretary of State 41 Ind.Cas. 167, V.S. Iyer v. Maung Nyun A.I.R. 1929 Rang. 228, Narayanan Nambuderi v. Narayana 25 Ind.Cas. 25.
4. To sum up two propositions clearly emerge viz., that where the objection as to jurisdiction has not been taken in the Court of the first instance and the merits of the case have not been affected, the appellate Court has to ignore the objection and proceed as if there was no defect of jurisdiction; secondly, the same course is to be followed where, though the objection was taken in proper time in the Court of the first instance, the appellate Court is not satisfied that the merits of the case have been prejudicially affected.
5. Section 11 has the effect of curing a want of jurisdiction caused by improper valuation not only in cases where there has been a final disposal by the Lower Appellate Court but also where a case has been remanded by the Lower Appellate Court to the Court of first instance for a finding and extends even to collateral proceedings and subsequent suits. Raman v. Secretary of State : (1901)11MLJ315 (Supra), Musa Imran v. Bhagawan Das : AIR1927All359 , Subramaniam v. Narasimham (1928) 56 M.L.J. 489 : A.I.R. 1929 Mad. 323, Chokkalinga v. Velayudha : AIR1925Mad117 .
6. A Full Bench of this Court in Kelu Achan v. Pawathi Nethiyar : (1923)45MLJ135 has held that Section 11 of the suits Valuation Act when referring to an under-valuation or over-valuation 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 an appeal from one Court to another. The mere fact of under-valuation of a suit by the plaintiff involving a trial by a District Munsif instead of by a Sub-Judge's Court, cannot be deemed to be prejudice within the meaning of Section 11 of the Suits Valuation Act to the unsuccessful party on account of the party being restricted to a right of Second Appeal to the High Court on questions of law only, instead of a regular appeal on the question of fact also. The mere change of forum consenquent on the under-valuation cannot itself be treated as prejudicially affecting the disposal of the suit on the merits within the meaning of this section. The appellate Court further should record its reasons in writing that by reason of the under-valuation the disposal of the suit on the merits had been prejudicially affected. Per Schwabe C.J., in Kelu Achan v. Parvathi Methiyar : (1923)45MLJ135 , Narayani Ammal v. Secretary of Stat 41 Ind.Cas. 167, Musa Imran v. Bhagawan Das : AIR1927All359 , see also Kana v. Mulchand 21 Ind.Cas. 918, Hamidunnissa v. Gopalachandra (1897) 24 Cal. 661 : 1 C.W.N. 556, Wahidulla v. Kanhayalal (1902) 25 All. 174, Dalip Singh v. Kundan Singh I.L.R. (1913) All. 58 : 22 Ind.Cas. 614.
7. It is quite true, as pointed out in the Editorial of the Madras Law Journal (2 M.L.J. 145 - Journal Section) in which the drafting of Section 11 has been severely criticised, the following passage occurs regarding the statement in Sub-sectin (1), Clause (b) that the over-valuation or under-valuation should have prejudicially affected the disposal of the case on the merits:
Now what does this mean? The mere defect of jurisdiction is not prejudicially affecting of the disposal on the merits. What had the legislator in his mind in speaking of over-valuation, etc., prejudicially affecting the merits? We confess it beats us.
But as pointed out in the A.I.R. Commentaries on the Suits Valuation Act, Section 11 (Note 12), it does not seem to be impossible to imagine contingencies where the trial of a case suffers by its taking place before one tribunal rather than another. See Moolchand v. Ramkishan : AIR1933All249 , for illustration as to under-valuation leading to prejudice. One case of possible prejudice on merits due to under-valuation is where the under-valuation of the suit enables it to be tried as a suit of Small Cause nature with all the concomitant brevity attached to such trial. Further, the analogous provision relating to objections as to territiorial jurisdiction contained in Section 21 of the Code of Civil Procedure, contains an exactly similar provision and speaks of there being miscarriage of justice consequent on the trial of the suit taking place before a wrong Court. If there can be a miscarriage of justice, on account of the trial taking place before a wrong Court, why should not there be a wrong decision on the merits on account of the case having been disposed of by a wrong Court? 'This is a fit matter, however, for engaging the attention of the Law Commission.
8. Sub-sections (2) and (3) of Section 11 of the Suits Valuation Act do not apply where the objection as to valuation is taken for the first time in appeal. In such a Case the appellate Court can entertain the objection under Sub-section (1) if it finds that the merits of the case have been affected. But the section does not provide for the further procedure in such cases. It is clear, however, that even in such cases, there can be no quashing of the proceedings and the return of the plaint for fresh presentation to the proper Court. If the materials on record are sufficient for the disposal of the appeal, the appellate Court should ignore the defect of jurisdiction and proceed to decide the appeal on the merits. If the appeal cannot be decided on the merits, having been prejudicially affected by over-valuation, or under-valuation, and the materials on record are not sufficient for the disposal of the appeal, then the case should be remanded to the Court which would be competent to entertain the suit.
9. The permutations and combinations which arise in regard to the procedure to be followed have been comprehensively and accurately summarised in the well known A.I.R. Commentaries on the Court-fees Act and Suits Valuation Act (2nd edition) at page 871 as follows:
To sum up:
(1) Where the objection has not been taken in proper time in the lower Court and has not affected the merits of the case, it cannot be taken notice of by the appellate Court. In such a case, even if remand has to be made, it must be made under Order 41, Civil Procedure Code, to the same Court as if there had been no defect of jurisdiction in such Court.
(2) Where the objection has been taken in proper time in the lower Court, but the merits of the case have not been affected, the appeal is to be disposed of on the merits if there are sufficient materials on the record. But if there are not sufficient materials on the record and remand is considered necessary, the remand is to be made to the Court which would be competent to entertain the suit.
(3) Where the objection has been taken in the lower Court and the merits of the case have been affected, the same procedure as in (2) above is to be followed.
(4) Where the objection has not been taken in proper time in the lower Court but the merit of the case have been affected, the same procedure as in (2) above is to be followed.
9. Thus, it seems that on the true construction of the section a return of the plaint by the appellate Court, with the result that the proceedings have to be commenced over again in another Court, is not contemplated by the section in any case, whether the objection was taken at an early stage or not and whether the merits of the case have been affected or not, by the erroneous valuation which has led to the case being disposed of by a wrong Court. It seems that in every such case, the appellate or revisional Court is simply to proceed as if there was no, defect of jurisdiction, except for the following qualification, viz., that where the objection was taken in proper time in the lower Court or the appellate Court finds that the decision has been affected on the merits or both these conditions are present, and in any such case, the appellate Court finds it necessary to send down the case for retrial or for findings on fresh issues or for fresh evidence, it shall direct its order to the Court which would be competent to entertain the suit or appeal.
10. The law does not contemplate a return of the plaint at this stage but only a remand following the procedure for hearing appeals under Order 41, Rajwant Singh v. Mutalli (1928) 116 I.C. 209 : A.I.R. 1930 Lah. 182, Hamirkuar v. Court of Wards A.I.R. 1932 Lah. 538. See also Raghunandan Prasad v. Ajodhya Singh A.I.R. 1930 All. 869, Narayani Ammal v. Secretary of State A.I.R. 1918 Mad. 590.
11. Bearing these principles is mind if we examine the facts of this case, we find that objection as to jurisdiction had not been taken in the trial Court and secondly, it has not been shown that the merits of the case had been affected and in which case the learned Subordinate Judge should have recorded his reasons in writing to that effect. Therefore, the appellate Court had no option but to ignore the objection even if raised in the appellate Court and proceeded as if there was no defect of jurisdiction. In any event there could not be a return of the plaint for presentation to the proper Court.
12. The matter has not stood thus, however it has been complicated by a reference to Court-fee which is not borne out by the entries in the order-sheet reproduced above. In the judgment the learned Subordinate Judge has stated:
For arguments on the point of Court-fees time was granted till to-day and the learned Counsel for the plaintiff has made an endorsement on the plaint admitting that there should be a prayer for declaration that the properties standing in the name of the 2nd defendant belonged to and really formed joint family properties before the plaintiff can claim a share therein. He has further endorsed that if a specific prayer is added, the valuation of the suit will be beyond the pecuniary jurisdiction of the lower Court.
It is now argued from the passage of the Judgment, by the learned Counsel Mr. B.V. Visvanatha Ayyar, that the appellate Court assessed the proper Court-fee which was payable and to be paid and that it was only on the plaintiff not being agreeable to pay additional Court-fee the learned Advocate for the plaintiff resorted to the device of asking for a return of the plaint, as otherwise if the additional Court-fee had not been paid, the suit was bound to be dismissed. I am unable to spell out any such thing from this passage in the Judgment, apart from the fact that the entries in the order-sheet do not show that the question of Court-fee was debated at any time and that the plaintiff was unwilling to pay the additional Court-fee. In fact such a question would not have arisen in this case because the suit was instituted in the pauper form. It is one of the privileges of pauper litigants to be completely indifferent to the assessment of Court-fee because if they win the opposite side would be made to pay and if they lose ex-hypothesi nothing can be recovered from them.
13. Therefore, the decree and judgment of the lower appellate Court are set aside and the learned Subordinate Judge is directed to dispose of the appeal on the merits. I need not add that under Section 12 of the Court-fees Act, the appellate Court can collect the deficit Court-fee, if any. The costs of this appeal to abide by and be provided for in the revised decree and judgment of the lower appellate Court.