V. Ramaswami, J.
1. These two petitions have been filed for review of a judgment of this Court in S. A. Nos. 790 and 1247 of 1971 on the ground that the value of the subject-matter of the appeals is Rs. 20,000 and upwards and, therefore, ought to have been heard and decided by a Division Bench and could not have been dealt with by a Single Judge. The Office raised an objection as to the maintainability of these petitions on the ground that the values of the subject-matter of the appeals, as given in the trial Court, the lower appellate Court and in the second appeals, were for less than Rs. 20,000 and that it was not open now to question the said valuations. The facts relevant for deciding the question may now be briefly stated. The petitioner in these petitions filed O. S. No. 1517 of 1966 for a declaration that he is the owner of the suit property which is an extent of 6 grounds and 355 sq. fit comprised in R. S. No. 174 of Nungambakkam village within the sub-registration district of T. Nagar and that the defendant has no title to the same. The plaintiff alleged that the property was purchased by him in the name of the defendant under a sale deed dated 6th May, 1941 and that, therefore, he is the real owner of the property. He also pleaded that he had been in possession and enjoyment of the same ever since the date of purchase. He had valued the relief at Rs. 800 under Section 25 (d) of the Tamil Nadu Court-fees and Suits Valuation Act, 1955 and had paid a Court-fee of Rs. 60.50. The defendant in the suit, who is the respondent herein, filed O. S. No. 1611 praying for a decree directing the petitioner herein to hand over possession to her of the sale deed dated 6th May, 1941. This prayer was asked for on the basis that the suit property was purchased by her from and out of her own funds and that sometime after the death of her husband, the petitioner, who was residing with her, had stealthily removed the title deed from her possession. She valued the relief at one-fourth of Rs. 1,400 which is the sale consideration under the sale deed dated 6th May, 1941, and paid a Court-fee of Rs. 26.75 P. under Section 24 (2) (a) of the Court-fees Act. The suits were jointly tried by consent of parties and the trial Court decreed O. S. No. 1517 of 1966 and dismissed O. S. No. 1611 of 1968. The respondent herein preferred two appeals in the Court of the Principal City Civil Judge, Madras. In these appeals, the values as given in the trial Court were adopted. The appeals were dismissed and the respondent preferred the above two second appeals, in which also she valued the reliefs as in the Courts below. As the valuations in these second appeals were far below Rs. 20,000 they were posted for final disposal in this Court. At the time of the hearing of these appeals, no objection was taken by either of the parties that the value of the subject-matter of the appeals is more than Rs. 20,000 and that they should be heard by a Division Bench. The second appeals were allowed and the suit, O.S. No. 1517 of 1966 was dismissed and the suit O. S. No. 1611 of 1968 was decreed. Thereafter, these petitions have been filed for review of the judgment on the ground that the market value of the suit property on the day when the appeals were heard and disposed of was more than Rs. 1,50,000 and that therefore, they should have been heard by a Division Bench.
2. Order 1, Rule 2 (5) (c) of the Rules of the Appellate Side of the High Court reads as follows:
Order I, Rule 2 : The following matters shall be heard and determined by a Bench of two Judges....
(5) Every appeal....
(c) from an appellate decree where the value of the subject-matter of the appeal is Rs. 20,000 or upwards .
3. These rules Were framed by the High Court under Section 122 of the Code of Civil Procedure. Before dealing with the submissions of the learned Counsel for the petitioner, it is necessary to note certain statutory provisions relating to the valuation of suits, appeals and second appeals for the purposes of jurisdiction and Court-fee, under the Tamil Nadu Court-fees and Suits Valuation Act, 1955. Under Section 53 of the Act, in a suit as to whose value for the purpose of determining the jurisdiction of Courts specific provision is not otherwise made in the Act or in any other law, value for that purpose and value for the purpose of computing the fee payable under the Act shall be the same, and in a suit Where fee is payable under the Act at a fixed rate, the value for the purpose of determining the jurisdiction of Courts shall be the market value or where it is not possible to estimate it at a money value such amount as the plaintiff shall state in the plaint. The suit O. S. No. 1517 of 1966 has been valued under Section 25 (d) at Rs. 800. That will be the value for the purpose of jurisdiction under Section 53 of the Act. In the other suit, O.S. No. 1611 of 1958, the suit is valued under Section 24 (2) (a) fixing the market value of the property at Rs. 1,4,00. Section 10 of the Act requires that in every suit in which the fee payable on the plaint depends on the market value of the subject-matter, the plaintiff shall file with the plaint a statement, in the prescribed form, of the particulars of the subject-matter of the suit and his valuation thereof. The plaintiff in O. S. No. 1611 of 1968, who is the respondent herein, has, in compliance with this provision, valued the property at Rs. 1,400.00. Section 12(2) says that any defendant may, by his written statement, filed before the first hearing of the suit or before the evidence is recorded on the merits of the claim, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. The value of the appeal and the fee payable thereon would be the same as what would have been payable in the Court of the first instance on the subject-matter of the appeal. But, Section 54 states that notwithstanding anything contained in Section 99 of the Code of Civil Procedure, 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 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 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. These provisions clearly establish that in a suit where the Court-fee payable depends on the market value of the suit property and if the defendant questions the valuation on the ground that the suit property had been under-valued and if it had been properly valued, [it would affect the jurisdiction of the trial Court, he ought to take that objection Wen at the stage of his filing a written statement and, if he had not questioned the same, after the disposal of the suit, he could not take up that plea in the appellate stage unless he satisfies the two exceptions provided under Section 54 itself. As already stated, in O. S. No. 1611 of 1968, the Court-fee payable depended on the market value of the suit property and the defendant, who is the petitioner herein, never disputed the valuation given by the respondent-plaintiff. Even at the time of the hearing of the appeals he did not question the valuation. It was not the case of the petitioner that he would come within the exceptions provided under Section 54 of the Act. Therefore, clearly, it was not open to the petitioner, to raise this question of under-valuation, even if true which is not accepted at the time of hearing of the second appeals and a fortiori after disposal of the second appeals.
3. Even if the Court-fee payable does not depend on market value but the jurisdiction depended on the value for purposes of Court-fee still if any party wants to raise the question of valuation of the subject-matter of the suit at the appellate stage and if that valuation would affect the jurisdiction of the trial Court or the Appellate Court, unless the party, is liable to bring it within the exceptions provided under Section 54 of the Act it will not be open to him to ask for a revaluation of the subject-matter. Therefore both on the ground that the market value was mentioned in O. S. No. 1611 of 1968 but had not been disputed by the petitioner herein in his written statement and also by virtue of the provisions of Section 54 of the Court-fees Act, it would not have been open to the petitioner even at the time when the second appeal was taken up for hearing to ask for a revaluation of the subject-matter of the suit, which would affect the jurisdiction of the trial Court and the lower appellate Court and much more so after the second appeals were disposed of.
4. But, the learned Counsel for the petitioner contended that inspite of the provision in Section 54, it was open to him, to raise the question of valuation as, under Order 1, Rule 2 (5) (c) of the Appellate Side Rules of this Court, when the value of the subject-matter of the appeal is Rs. 20,000 or upwards, it shall have to be heard and determined by a Bench of two Judges. He referred, in this connection to the language used, namely, ''the value of the subject-matter of the appeal' and stated that it is similar to the language used in Article 133 of the Constitution of India prior to its recent amendment and Section 110 of the Code of Civil Procedure and that he could raise this question of valuation at the stage of hearing of the second appeal or after the disposal of the same. He also relied on a Full Bench decision of this Court in Kuppanna v. Peruma : AIR1961Mad511 . In that case, the suit was valued by the plaintiffs at Rs. 9,650. The suit was decreed by the trial Court. When the defendants filed the appeal to the High Court, they adopted, that value for the purpose of payment of the Court-fee. After the second appeal was dismissed, a petition for leave to appeal to the Supreme Court under Article 133 of the Constitution was filed. In that petition the defendants contended that the value of the subject-matter of the suit, given by the plaintiffs and adopted by the defendants in the appeals, was erroneous and that the real value of the property was and continued, at all times to, be more than Rs. 20,000 and that, therefore, he could prefer an appeal to the Supreme Court. The question that was referred for the opinion of the Full Bench was 'whether, for ascertaining the value of the subject-matter in dispute for the purpose of Article 133 of the Constitution and section no, Civil Procedure Code, in the Court of the first instance or in the proposed appeal, it would be open to any party, be he the plaintiff or the defendant, to go behind the valuation adopted in the plaint or in the memorandum of appeal as the case may be and show the real value thereof.
The Full Bench answered the reference in the following manner:
It would be open to any party, be he the plaintiff of the defendant, to go behind the valuation adopted in the plaint or in the memorandum of appeal, as the case may be, and show the real value of the subject-matter in dispute, except where (1) there has been a judicial adjudication of the correctness of the original valuation in such a way as to attract the principle or the rule of res judicata or (2) where the party making the original valuation or the one adopting it had an option to give that value or the correct value and while exercising the option by giving one of such values, he gained for himself an advantage or made the opposite party suffer a detriment.
5. The decision in the Full Bench related to an application under Article 133 of the Constitution and the language used under the Article. The learned Judges proceeded to consider the question of his right to revaluation because that question wilt have to be considered only in the light of Article 133 of the Constitution and Section 110. The learned Judges felt that the right of appeal to the Supreme Court is a constitutional right and cannot be impaired or affected by an erroneous statement as to the value of the subject-matter by the party where such statement is made deliberately or otherwise. In view of the fact that Article 133 of the Constitution could not be fettered by any other! provision, Section 54 of the Court-fees and Suits Valuation Act, 1955 was not a bar for reconsidering the value of the subject-matter of the appeal for the purpose of appeal to the Supreme Court. But so far as the second appeals are concerned, Section 54 is applicable and the provision in Order 1, Rule 2 (5) (c) of the Appellate Side Rules does not in any way override that provision. Neither in express terms this rule is made to be operative irrespective of Section 54 nor by implication it could be said that it has overriding effect. Therefore it would not have been open to the petitioner even at the time of the final hearing of the second appeal to have questioned the valuation of the subject-matter unless he satisfied the conditions under Section 54. Subsequent to the disposal of the second appeal he could question the valuation only for the purpose of taking further proceedings in the Supreme Court and not to re-open or have the decree passed already set aside. Even for taking further proceedings he would have to establish that he was not debarred from reagitating the value of the subject-matter by any other rules of procedure or evidence. That was what was held by the Full Bench in Kuppanna v. Peruma : AIR1961Mad511 . It would be seen from a discussion in the judgment that the right of a party to go behind the valuation adopted in the plaint or in the memorandum of appeal and to show the real value thereof will have to be decided as a question of fact in each case. The determination of this question will be governed by the ordinary procedure of the Court deciding, like res judicata, estoppel etc., and the rules of procedure and evidence which might, in certain cases, debar the pleading and proving of the value. The Full Bench also held that if, by adopting the real value, the jurisdiction of the trial Court would be affected and it would involve a change of forum of the suit or the appeal, the defendant ought to have raised that objection to valuation even when he filed the written statement. That was plainly required of him under Section 12 of the Court-fees and Suits Valuation Act, 1955, and Order 8, Rule 2 of the Code of Civil Procedure. If he had not done that, as a plea which ought to have been raised, it shall be deemed to have been impliedly raised and overruled for the purposes of Section 11 of the Code of Civil Procedure. In the instant case, if the value of the subject-matter of the appeal was Rs. 1,50,000 as contended by the petitioner herein, the City Civil Court would have had no jurisdiction to try the suit and the Principal City Civil Judge also could not have entertained the appeal. The suit should have been filed on the Original Side of the High Court. Since the correct valuation would have involved a change of the forum, the petitioner ought to have raised this contention in his written statement. He having failed, it is not open to him now to raise that plea. It shall be deemed to be an implied finding against him, which will amount to res judicata. Only in a case where there was no need for mentioning the market value of the subject-matter of the suit in the plaint, there would not have been any occasion for the defendant to plead the valuation and therefore the principle of res judicata would not apply. But the petitioner could still be barred from raising this question on the ground of estoppel or election. Since in the suit, O.S. No. 1611 of 1968, the plaintiff was bound to give the market value of the subject-matter of the suit and he did give the value of Rs. 1,400.00 the defendant had a choice between two alternative courses, one accepting the valuation given by the plaintiff and the other of disputing the same if he wanted to-contend that the Court had no jurisdiction because of under-valuation. By not disputing the valuation, the defendant shall be deemed to have elected to accept the valuation given by the plaintiff and thereby derived the advantage of a trial by that Court in which the suit was filed. The defendant would have got a right of appeal on that valuation to the Principal City Civil Judge and a further appeal to this Court. It was not open to the petitioner to take advantage of the valuation given by the plaintiff when it suited him and then to contend that the original valuation was not correct. This was also the principle that was settled by the Full Bench. Therefore, far from supporting the contention of the learned Counsel for the petitioner, the Full Bench decision is clearly against his submissions.
6. It was next contended by the learned Counsel that Order I, Rule 2 (5) (c) of the Appellate Side Rules is a matter of jurisdiction of this Court and if any decision was rendered in a matter in which it had no pecuniary jurisdiction it would be without jurisdiction and therefore null and void. In this connection, the learned Counsel relied on the decision in Official Trustee v. S.N. Chatterjee : 3SCR92 . The Supreme Court in this decision held that an order made by the High Court in a matter not covered by Section 34 of the Indian Trust Act, was with-out jurisdiction. But it has been held by the Supreme Court in Kiran Singh v. Chaman Paswan : 1SCR117 , that over-valuation or under-valuation is not to be treated as a jurisdictional matter. In that case, though the correct valuation of the subject-matter would not have changed the forum for the trial of the suit, on a question of appellate forum there was a difference. If the original valuation as given in the plaint was accepted, an appeal would lie to the District Court and if it had been correctly valued, it would lie only to the High Court. Against the decision rendered in the appeal by the District Court a second appeal was preferred and in that the Plaintiff for the first time, took up an objection that on the correct valuation of the subject-matter the District Court could not have entertained an appeal and therefore the High Court should treat the judgment of the District Court in the appeal as a nullity and hear the second appeal as if it were a first appeal without any limitations as to the points that could be determined. It was held by the High Court that the appeal to the District Court was competent and that its decision could be reversed only if the appellant could establish prejudice on the merits and holding that on a consideration of the evidence no such prejudice had been shown, the second appeal was dismissed. The plaintiff preferred an appeal to the Supreme Court. The question for consideration was ' what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction and what the effect of Section 11 of the Suits Valuation Act is on that position.' Section 11 of the Suits Valuation Act, 1887 corresponds to Section 54 of the Court-fees and Suits Valuation Act, 1955. Confirming the judgment of the High Court, the Supreme Court held:
The drafting of the section has come in and deservedly for considerable criticism ; but amidst much that is obscure and confused, there is one principle which stands out clear and conspicuous. It is that a decree passed by a Court, which would have had no jurisdiction to hear a suit or appeal but for over-valuation 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. The reference to Section 578, now Section 99, Civil Procedure Code, in the opening words of the section is significant. That section, while providing that no decree shall be reversed or varied in appeal on account of the defects mentioned therein when they do not affect the merits of the case, excepts from its operation defects of jurisdiction. Section 99 therefore gives no protection to decrees passed on merits, when the Courts which passed them lacked jurisdiction as a result of over-valuation or under-valuation. It is with a view to avoid this result that Section 11 was enacted. It provides that objections to the jurisdiction of a Court based on over-valuation or under valuation shall not be entertained by an appellate Court except in the manner and to the extent mentioned in the section. It is a self-contained provision complete in itself, and no objection to jurisdiction based on over-valuation or under valuation can be raised otherwise than in accordance with it. With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99, Civil Procedure Code 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 be reversed 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.
7. Therefore, even on this ground the learned Counsel is not entitled to ask for a revaluation of the subject-matter for the purpose of review. The learned Counsel also relied on the decision of this Court in Mohamed Maracair v. Veyanna Thevar : AIR1954Mad894 . That was a case where no question of valuation was involved but on the valuation as given in the appeal, it could not have been dealt with by a single judge but while disposing of a petition to furnish security, the learned single Judge dismissed the appeal itself. It was held that on the valuation given in the appeal it could not have been dealt with by a single Judge and that therefore the order made by him is liable to be set aside and the appeal to be heard on merits again. In this case, as already stated, as per the valuation given in the second appeal, it would have to go only before a single Judge and having taken a decision it is not open to any party to question the same on the ground that the value of the subject-matter was Rs. 20,000 or upwards.
8. In the result, I hold that it is not open to the petitioner to ask for a revaluation of the subject-matter of the appeal for the purpose of review.