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Kelu Achan and ors. Vs. Cheriya Parvathi Nethiyar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Reported inAIR1924Mad6
AppellantKelu Achan and ors.
RespondentCheriya Parvathi Nethiyar and ors.
Cases ReferredSidappa Venkatrao v. Rachppa Subrao
Excerpt:
- orderoldfield, j.1. in s.a. no. 286 of 1920. the first question we have to decide is whether this suit was beyond the pecuniary jurisdiction of the district munsif, by whom it was tried. the valuation for the purpose of jurisdiction is, under section 8, suits valuation act, (vii of 1887), the same as the valuation for the computation of court fees. the reliefs asked for and to be valued are, as appears from the pleadings, which are given at unnecessary length in the district munsif's judgment, three:1. removal of 1st defendant from tavazhi management.2. a declaration that a karipanayam, dated, 2nd july, 1916, is not binding on any of the seventeen items in a schedule and a direction to defendants in respect of items 1 to 15, which (it is not disputed) would be equivalent to a decree for.....
Judgment:
ORDER

Oldfield, J.

1. In S.A. No. 286 of 1920. The first question we have to decide is whether this suit was beyond the pecuniary jurisdiction of the District Munsif, by whom it was tried. The valuation for the purpose of jurisdiction is, under Section 8, Suits Valuation Act, (VII of 1887), the same as the valuation for the computation of Court Fees. The reliefs asked for and to be valued are, as appears from the pleadings, which are given at unnecessary length in the District Munsif's judgment, three:

1. Removal of 1st Defendant from tavazhi management.

2. A declaration that a Karipanayam, dated, 2nd July, 1916, is not binding on any of the seventeen items in A schedule and a direction to Defendants in respect of items 1 to 15, which (it is not disputed) would be equivalent to a decree for delivery thereof.

3.A declaration in respect of another Karipanayam and a decree for surrender of it and connected documents.

2. There is no dispute as to the valuation of the first and third of these; and the question, it is agreed, is only whether the second should be valued as plaintiffs have valued it at Rs. 500 for delivery of items 1 to 15. with reference to the revenue payable thereon, under Court Fees Act, Section 7(v)(b) and Rs. 10 for the declaration asked for, regarded as one relating to all the seventeen items under Schedule II, Article 17(iii); or whether it should be valued, as defendants contend under Section 7(v)(b) for items 1 to 15 and under Section 7(iv)(c) for the relief asked for in respect of items 16 and 17 at which the relief sought is valued in the plaint. The importance of the latter contention lies in the fact, which is not disputed, that it entails an enhancement of the total valuation of the suit beyond the District Munsif's pecuniary jurisdiction, since, as appears from the reference in plaint paragraph 11-B2, the value of the buildings on items 16 and 17 is over Rs. 3,000.

3. The lower appellate Court decided for plaintiffs, partly on the ground that the inclusion of a prayer in respect of items 16 and 17 was, as alleged by plaintiff's vakil before it, a mistake and that no relief was asked for in respect of them. But it is sufficient that the plaint was not in fact amended consistently with any such statement and that here Mr. Madhavan Nair for plaintiffs was ready to withdraw the claim to relief in respect of these items, which is certainly made in the plaint, only in case our conclusion as to jurisdiction should be against him. On the merits the matter is concluded by the decision in Shidappa Venkatrao v. Rachappa Subrao [1912] 36 Bom. 628 in which I respectfully concur. That decision is based on the application of Section 17, Court Fees Act; and that Section is applicable to the case before us, since there is, to my mind, no reason for following the opinion expressed in Durga Prasad v. Purandar Singh [1904] 27 All. 186 and holding that the 'distinct subjects' referred to must necessarily be distinct causes of action. It further does not seem to me that the conclusion as to valuation in the Bombay case cited is affected by the judgment of the Privy Council in Appeal Rachappa Subrao Desai v. Shidappa Venkatrao [1919] Bom. 507. The reference to the real value of the property in suit as undisplaced for purposes of jurisdiction by the notional value was made in connection with the portion of the claim for which the fixed fee was payable under Schedule II; and it was in that connection there, as it is here, that the admissibility of the real value as determining jurisdiction was material, the succeeding paragraph relating to the other part of the suit. And in fact the decision in plaintiff's favour was given not on the ground that the technical objection relied on by defendant was-unsubstantial but because owing to the failure to take it earlier, a merely technical objection could not prevail.

4. The valuation adopted by plaintiffs in the present case being incorrect for purposes of jurisdiction and the District Munsif therefore incompetent to try the suit, the question is whether this entails the success of the Second Appeal In Rachappa Subrao Desai v. Shidappa Venkatrao [1919] Bom. 507, it was sufficient that objection had not been taken to the jurisdiction on the ground until the argument in the High Court and it was therefore unnecessary for the Judicial Committee to refer in its judgment to the provision of law, Section 11, Suits Valuation Act, on which our decision must turn. For it is not disputed here that an objection was taken and an issue framed regarding it before the District Munsif, although (for reasons which are not clear) he said that an adjudication was unnecessary. Section 11, Suits Valuation Act, provides that, where objection to the jurisdiction has been taken by reason of over or under valuation in the Court of First Instance, it shall receive effect, only if the Appellate Court is satisfied that 'the over or under valuation has prejudicially affected the disposal of the suit on its merits.' That language is general and certainly it is difficult to understand what special circumstances are contemplated in it, or to say whether it can be applied to a case, such as that before us, in which no prejudice to the disposal of the suit has been specified in the Memorandum of Appeal or in the argument. Yet in accordance with the ordinary canons of construction that language cannot be deprived of effect, as though the intention were that in all cases of incorrect valuation the proceedings in the Court of First Instance should be treated as invalid. The test contemplated in the language used cannot ordinarily be supposed to be the convenience or preference of the parties since they will seldom agree on those matters and it will be impossible to decide between conflicting local and personal considerations of an indefinite nature. It is then argued that, when (as in the present case) actual prejudice is not demonstrated, the Appellate Court must consider whether it can be presumed. But if prejudice based on presumption is contemplated by the section, it is still necessary to consider how any presumption can be made. None can be made, because the Court of a District Munsif is substituted for that of a Subordinate Judge, or vice versa, in consequence of the incorrect valuation, since, the powers of both to deal with litigation legitimately before them being the same, there is no substantial reason for presuming that the decision of the one is more likely to be right than that of the other, this being particularly exemplified in cases, such as the present, where the objection to valuation is sustained first in Second Appeal and the decision of both Courts on fact and law are the same; and this view has, in fact, been taken in Raghava Chariar v. Raghava Chariar : (1910)20MLJ726 . This failing, application may perhaps be found for the words of the Section in cases, in which the incorrect valuation entails that the Small Cause, instead of the ordinary procedure will be followed, although it is doubtful whether, both procedures being regarded by the legislature as affording a satisfactory method of trial, there can be any question of prejudice to the disposal on the merits. The last suggestion made is that prejudice is contemplated as arising from the difference in the course of appeals, and the number of appeals which incorrect valuation will entail; and in particular from the loss in cases of under valuation of the right of appeal on the facts to the High Court. This possibility no doubt has not been considered in the decisions we have been shown. But first the forfeiture of a particular right of appeal, arising after the disposal of the suit, cannot be regarded as in the words of the Section 'prejudicially affecting the disposal of the suit on the merits.' Next this possibility is irrelevant in cases of overvaluation; and necessity for separate reference to them is, on the assumption involved, wanting. And thirdly this explanation is based on a presumption that adjudication on the facts must be prejudicially effective, if the hearing is by an inferior Court which is no more sustainable with reference to appellate than original proceedings. This also failing, it must be supposed, that the very general wording was adopted to provide ex abundanti cautela for any exceptional cases, in which prejudice to disposal on the merits may be demonstrable but of which the nature cannot be more exactly defined. In the present case no such prejudice has been alleged or shown to have occurred. I would therefore proceed with the hearing of the Second Appeal.

5. But as my learned brother differs and as the difference between us relates to a preliminary point requiring decision before we can proceed to disposal on the merits, I agree to refer to a Full Bench the question whether the Second Appeal should be heard on the merits or whether the plaint should be returned.

6. In S.A. No. 287 of 1920.--Our judgments also apply to this point, as it arises in the connected Second Appeal No. 287 of 1920. We make a similar reference in that case also.

Devadoss, J.

7. In S.A. No. 286 of 1920.--This is an appeal by the 15th Defendant against the decree of the District Judge of South Malabar, affirming the decree of the District Munsif of Alatur in O.S. No. 328 of 1916, in which the plaintiffs sued for the removal of the karnavan of their tavazhi, the 1st defendantand for a declaration that certain alienations were not binding on the family, and that certain properties were the properties of the family of the plaintiffs, and the 1st defendant. The District Munsif granted decree in favour of the plaintiffs, and the District Judge has upheld it.

8. In the plaint several reliefs were claimed:

(1) the removal of the 1st defendant from the tavazhi management, (2) the appointment of the 2nd plaintiff or any other plaintiff as manager, (3) a declaration that a Karipanayom deed executed by the 1st defendant to the 2nd defendant, dated 2nd July, 1916, for Rs. 4,823-8-0 was not valid and binding on the plaintiff's and for possession of items 1 to 15, (1) a declaration that the amount of the Karipanayom deed executed by defendants 1 to 13 to the 14th defendant belonged to the tavazhi of the plaintiffs, (5) a direction to the 1st defendant to deliver to the plaintiffs all documents accounts, etc., and some other reliefs.9. The plaintiffs valued the first relief at Rs. 1,233-5-4, the third at Rs. 500 being five times the annual assessment, the fourth at Rs. 100 and the fifth at Rs. 5.

10. The defendants pleaded that the suit was under-valued, that for the purpose of declaration, the valuation was the full value of the property, and that items 16 and 17, in respect of which a mere declaration was prayed for, were worth more than Rs. 3,000-0-0.

11. The District Munsif valued the first relief at Rs. 2,182-12-9, but held that the other reliefs were properly valued, and that he had jurisdiction to try the suit, and took evidence and decided it on the merits.

12. The 15th defendant who appealed against the decree of the district Munsif, raised the contention that the District Munsif had no jurisdiction to try the suit and that the suit ought to have been dismissed on that ground, but the District Judge overruled the contention, holding that the undervaluation, if any, did not prejudicially affect the disposal of the suit on the merits.

13. It is argued before us that the District Munsif had no jurisdiction to try the suit, as the value of the reliefs claimed was over Rs. 5,000-0-0 and that the decree of the District Munsif should, therefore, be set aside.

14. It is admitted by the respondents that the value of all the reliefs claimed exceeded Rs. 5,000, that items 16 17 are worth more than Rs. 3,000-0-0, and that as a mefe declaration was asked for in respect of them, the valuation for the purpose of jurisdiction should have been at their market value, and that in respect of the other items, plaintiffs claimed a consequential relief, and therefore, they were justified in valuing them at any figure, which they thought proper under the Court Fees Act, Section 7. Clause 4(c).

15. The point for decision is whether the District Munsif's decree should be set aside on the ground that the value of the suit exceeded the pecuniary jurisdiction of the District Munsif. The appellant in support of his contention, relies upon a case reported in Shidappa Venkatrao v. Rachappa Subrao [1912] 36 Bom. 628. In that case, the plaintiff valued, for the purpose of declaration, his plaint at Rs. 135 and filed it in the Court of the First Class Subordinate Judge who passed a, decree in his favour. On appeal to the District Court a preliminary objection was taken that the appeal lay to the High Court as the value of the subject matter of the suit was above Rs. 5,000. The District Judge held that there was no failure of justice consequent on the lower Court's erroneous assumption of jurisdiction and that neither party was entitled to complain of want of jurisdiction and heard the appeal on the merits and dismissed it. The defendant preferred a Second Appeal to the High Court. Chandavarkar and Batchelor, JJ., held that the plaintiff had not properly valued the suit, and that the valuation for the purpose of jurisdiction was Rs. 69,016-9-0, and that, therefore, the appeal lay to the High Court. They set aside the decree of the District Judge and directed the appeal to be presented to the High Court, which, was done. The learned Judges heard the appeal on the merits and dismissed it. Against this decree of the High Court, the defendant preferred an appeal to the Privy Council and the judgment of the Privy Council is reported in Rachappa Subrao v. Shidappa Venkatrao [1919] Bom. 507. Their Lordships of the Privy Council dismissed the appeal holding that the plaintiff's valuation was incorrect, that the proper valuation for the purpose of declaration exceeded Ks. 60,000 and that:

no objection was tiken to the Court's jurisdiction in the written statement or the issues and it was not even suggested in the memorandum of appeal to the District Judge or the High Court.and that it was

'because the defendant did not take the objection at the proper stage that he has been able to prolong the litigation commenced so far back as 1909 by an appeal to this Board.' 'Their Lordships are of opinion that they would not be justified in assisting an objection of that type; and more than that, they hold that even the technicality on which the defendant relied could not prevail.'16. Under the Madras Civil Courts' Act, District Munsifs have jurisdiction up to Rs. 3,000 and appeals against their decisions lie to the District Court, and Subordinate Judges have unlimited pecuniary jurisdiction; but appeals, from their decisions lie to the District Court 'except when the amount or value of the subject matter of the suit exceeds five thousand rupees in which case the appeal shall lie to the High Court.' In this case, the valuation of the properties being admittedly over Rs. 5,000, if the suit had been brought in a Subordinate Judge's Court, the unsuccessful party would have had the right to appeal to the High Court.

17. The respondents' Counsel relies upon Section 11 of the Suits Valuation Act which is in these terms-I shall extract only portions of it:

(1) Notwithstanding anything in Section 578 of the Code of Civil Procedure, an objection that by reason of the over-valuation or undervaluation 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 under-valued and that the overvaluation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.

(2) 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 the Lower Appellate Court.

(3) If the objection was taken in that matter and the Appellate Court is satisfied as to both those matters and had not those materials before it, it shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of the appeal.

18. This Section enacts that no objection on the ground of over valuation or under-valuation shall be entertained unless (1) the objection is taken in the Court of First Instance at or before the first hearing, or (2) the Appellate Court is satisfied for reasons to be recorded by it in writing that the over-valuation or under-valuation has prejudicially affected the disposal of the suit or appeal on its merits and if the Appellate Court is satisfied as to both these matters, then and then only it shall proceed to deal with the appeal as regards the question of jurisdiction. In the present case the objection was taken in the First Court in the written statement and before the first hearing and in the memorandum of appeal to the Appellate Court also the objection to jurisdiction was raised. It cannot be said that the disposal of the suit has in any way been prejudicially affected by the under-valuation. It is not easy to conceive of a case, where the disposal of a suit or appeal would be prejudicially affected merely by reason of over-valuation or under-valuation. Mr. Madhavan Nair found it difficult to suggest any instance where the disposal on the merits could be said to be prejudicially affected by reason of over valuation or under-valuation. He suggested that by proper valuation a suit may be brought in a Subordinate Court which may be able to enforce the attendance of witnesses of either party. It is difficult to see how a Court of a Subordinate Judge could enforce the attendance of witnesses which a District Munsif could not do. If it is suggested that the change of venue would be more convenient to one party or the other, that would not depend upon the pecuniary jurisdiction of a Court, so that instance is no instance at all. He relied upon a case reported in Raghava Chariar v. Raghava Charior : (1910)20MLJ726 . In that case the facts were: the plaintiff and the defendant were executors of the will of one Krishna-swami Ayyangar. Under the will they were appointed co-trustees for the two widows and the minor adopted son of the deceased and also for carrying on a charity. The plaintiff sued to remove the defendant from the co-executership and co-trusteeship on the ground of his misappropriation of the trust funds and his failure to co-operate in the execution of the will and the trust. The defendant objected to the suit being within the Court's jurisdiction both under the Trust Act of 1882 and on account of the whole of the trust property being of more than the Court's pecuniary limits. The plaint was returned for presentation to the proper Court, but the District Court reversed the order of the District Munsif and directed the Court of First Instance to receive the plaint and dispose of it on the merits. The District Munsif entertained the suit and found that the defendant had failed to account for two sums of Rs. 1,306 and Its115, and passed a conditional decree that, if the defendant did not pay the amount within three months, he would be removed from office. On appeal the District Court affirmed the decree of the District Munsif. On second appeal it was contended that the subject of the trust being admittedly above Rs. 20.000 in value, the District Munsif had no jurisdiction to try the suit. Sir T. Muthuswami Ayyar and Handley, JJ., held that: 'the value of the trust property ought to have been taken as a guide to the determination of the question of jurisdiction. The objection was taken both in the Court of First Instance and in the Lower Appellate Court. According to Section 11 of the Suits Valuation Act we are precluded from entertaining the objection, unless we are satisfied that the under-valuation has prejudicially affected the disposal of the suit on the merits. The mere change of form consequent on the undervaluation cannot of itself be treated as prejudicially affecting the disposal of the suit on the merits within the meaning of the section; for that is the very case premised and provided for by the section. Reading the Section together with Section 578 of the Code of Civil Procedure, we consider that the words prejudicially affected the disposal of the suit on the merits must be construed in the same way as they would be construed with reference to any error, defect, or irregularity contemplated by that section. The effect of Section 11 of the Suits Valuation Act is simply to place over-valuation or under-valuation of suits on the same footing with other irregularities contemplated by Section 578, except that the objection must be taken either in the Court of First Instance or in the Lower Appellate Court. In the present case we do not consider that the under-valuation has prejudicially affected the disposal of the suit on the merits.'

19. This case was followed by Madras High Court in Ammalu Ammal v. Krishnan Nair 62 Ind.Cas. 775 and Vedaji Bashara Tirumal Rao v. Subramania Gurukkal 52 Ind.Cas 992 and in Narayani Ammal v. Secretary of state 41 IND.CAS. 167.

20. The question that presents a real difficulty is this:--Is the plaintiff justified in under-valuing a, suit and bringing it in a Court which would not have jurisdiction over it, if properly valued, and thereby deprive the other party of the right to appeal on facts to the High Court? If a suit were valued at more than Rs. 5,000 it would have to be brought in the Subordinate Judge's Court and an appeal against the decree of the Subordinate Judge in such a suit would lie to the High Court on facts. But, by bringing such a suit in the District Munsif s Court, the right of appeal to the High Court is taken away; and the appeal in fact lies to the District Court, and a Second Appeal to the High Court lies only on questions of law. The object of the Madras Civil Courts Act in limiting the jurisdiction of Civil Courts is not without an object, and the defendant should not be deprived at the whim and fancy of a plaintiff of his right to appeal to the highest Court in the land on facts. If Section 11 of the Suits Valuation Act is strictly interpreted, an Appellate Court would be unable to interfere with the decree of a District Munsif, whatever might be the value of the property in suit, on the ground that the party appealing against the decree is unable to show that the disposal has been prejudicially affected by under-valuation. It is not easy to conceive of cases where the disposal could be said to be affected prejudicially on the merits merely by reason of under-valuation or overvaluation. It is strongly urgent by the respondents' counsel that the legislature in enacting Section 11 in those terms did not want the decrees of Court to be interfered with merely because the subject matter exceeded the pecuniary jurisdiction of such Courts. No doubt, a literal interpretation of Clause (1)(6) of Section 11 would lead to the result. But it is difficult to hold that the legislature intended to give a plaintiff the right to sue in whatever forum he might choose, and thereby to take away the right of appeal on facts to the High Court. Under the Madras Civil Courts Act, Courts of different pecuniary jurisdictions are established. The very object of having Judicial Officers of different cadres would be defeated if the Court of the lower pecuniary jurisdiction could be allowed to try and dispose of suits, the subject matter of which exceeds its pecuniary jurisdiction. A defendant is entitled as a matter of right to have his case heard by a judge of a higher grade and of greater experience, if the value of the claim against him exceeds the pecuniary jurisdiction of the Court in which the suit is brought. Where there are two legislative enactments, one creating and regulating the jurisdiction of Civil Courts and the other mainly intended for fiscal purposes, the provisions of the former should not be lightly treated in dealing with questions of jurisdiction affecting rights of parties. Under Section 21 of the Civil Procedure Code an objection to territorial jurisdiction should be taken at the earliest opportunity, and an Appellate Court will entertain it only if there is a consequent failure of justice. In Hamidunnissa Bibi v. Gopal Chandra Malakar [1897] 24 Cal. 661, the learned Judges after referring to various cases before and after the passing of the Suits Valuation Act, observe thus:

It is no doubt a sound rule that Courts should not allow parties to evade the law relating to matters of jurisdiction and that where it is found that a party is intentionally exaggerating his claim in order to bring his suit in a Court which otherwise would not have jurisdiction to try it, before the merits of the claim have been gone into, the plaint should be returned to be presented to the proper Court. But this rule must be taken with qualifications, and the one important qualification is that embodied in Section 11 of the Suits Valuation Act, which is this, viz., that where a suit has been tried on its merits by the First Court and the over-valuation or under-valuation of the suit is not found by the appellate Court to have prejudicially affected a suit on its merits the objection as to jurisdiction should not be given effect to. A plaintiff who alters the valuation of his suit for the purpose of evading jurisdiction must be punished by having no costs allowed to him; but it would not, in our opinion, conduce to promote the ends of justice, if an appellate Court were to set aside a decision which is found to be correct on the merits, simply because the valuation of the suit has been designedly increased or decreased to evade jurisdiction.21. Considering the high authority of Sir T. Muthuswami Ayyar, who decided the case reported in Raghava Chariar v. Raghava Chariar : (1910)20MLJ726 and, that of Mr. Justice Bannerjee in Hamidunnissa Bibi v. Gopal Chandra Malakar [1897] 24 Cal. 661, one would be very reluctant to differ from their opinion. But, in none of the cases, so far as I have been able to examine them, the question of right of appeal on facts was raised. That question was specifically raised only in Shidappa Venkatrao v. Rachappa Subrao [1912] 36 Bom. 628, where the learned Judges reversed the decree of the District Judge and directed the appeal to be presented to the High Court. This judgment of the Bombay High Court was affirmed by their Lordships of the Privy Council. If their Lordships thought that Sect. 11 of the Suits Valuation Act was an answer to the defendant's contention, I think they would not have rested their judgment on other grounds. While their Lordships refer to Sections 8 of the Suits Valuation Act as regards the mode of valuation, and also to Sect. 7 as regards the computation of fees payable for certain suits, and Sections 6 and 7 of the Court Fees Act as regards the fees payable in respect of reliefs, they rest their decision upon the fact that the objection was not taken at the proper time and that a defendant who did not choose to take the objection in the Court of first instance should not be helped. But for their Lordships decision reported in Rachappa Subrao v. Shidappa Venkatrao [1919] Bom. 507 I would have felt very great difficulty in not following the decision in Raghava Chariar v. Raghava Chariar : (1910)20MLJ726 and other cases. It has not been shown by the appellant that the disposal of the suit on the merits has been prejudicially affected by the under-valuation. At the same time I feel strongly that the right of appeal to the High Court, which the defendant would hare had if the suit had been instituted in the Subordinate Judge's Court, had been improperly taken away by the suit being instituted in the District Munsif's Court, and no party should have the right to take away the right of his adversary to appeal to the highest Court in the land on facts. It might be said that he got the right of a Second appeal which he would not have had if the suit had been filed in the Subordinate Judge's Court in the first instance. I do not think this argument needs serious consideration. A decision of a Bench of two judges of the High Court on facts; I consider, would be more satisfactory than the decision of a single judge of the District Court. On this ground, the under-valuation of the suit has prejudicially affected the defendant's right of appeal. Relying upon the decision of their Lordships of the Privy Council in Rarhappd Subrao Desai v. Shidappa Venkatraao [1919] Bom. 507, I respectfully dissent from the decision of Sir T. Muthuswami Ayyar and other learned Judges in the three Madras cases referred to above, and hold that the District Munsif had no jurisdiction to try the suit. Mr. Madhavan Nair offered to withdraw the suit so far as items 16 and 17 are concerned. I think in the view I take, he should not be allowed to cure the want of jurisdiction by withdrawing the suit in respect of a few items at this stage, depriving the defendant of the undoubted right to have his appeal of facts heard by the High Court and the suit tried by a Subordinate Judge.

22. The plaint should be ordered to be returned to the plaintiff, for presentation to the proper Court.

OPINION

Schwabe, C.J.

23. In this case the suit, was commenced before the District Munsif and it appears that there was an under-valuation 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 an appeal to the High Court instead of to the District Court and no 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 under-valued but he also held that, if the suit were under-valued, 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.

24. The question turns on the proper interpretation of Section 1 of the Suits Valuation Act of 1887, which provides that objections to jurisdiction, by reason of over-valuation or undervaluation of a suit or appeal, are not 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 over-valued or under-valued and that the over-valuation or under-valution 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 under-valuition, 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 an 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 the Lower Appellate Court, where there had been under-valuation 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 Raghava Chariar v. Raghava Chariar : (1910)20MLJ726 , Narayani Animal v. Secretary of State 41 Ind.Cas. 167, Ammalu Ammal v. Krishnan Nair62 Ind.Cas. 775. There is a decision to the contrary in Mohini Mohan Misser v. Gour Chandra Rai [1920] 5 Pat. L.J. 397. With that decision I do not agree. The point was also discussed in Sidappa Venkatrao v. Rachppa Subrao [1912] 36 Bom. 628, but the point at present before the Court is not decided there.

25. Our answer to the question, therefore, is that the second appeal must be heard on its merits. The same point arises in S.A. No. 287 of 1920 which is also referred to us and our answer in that case must be the same.

Oldfield, J.

26. I agree.

Coutts Totter, J.

27. 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 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 11 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.


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