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Shajan Bibi Vs. EarsIn Dewan and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.46
AppellantShajan Bibi
RespondentEarsIn Dewan and ors.
Cases ReferredKola Chand Sen v. Anund Kristo Bose
Excerpt:
court-fee - suit, insufficient valuation and stamp of--objection taken by appellate court, whether legal--no objection taken in first court nor in memorandum of appeal--direction that plaint should be returned, whether legal--suits valuation act (vii of 1887), section 11. - .....must be returned to the court of first instance as insufficiently stamped. in our opinion, the learned judge was not, in the first instance, entitled in law to raise the point in favour of the defendants-appellants which he did raise and he certainly was not, in law, entitled to pass the order which he passed directing the return of the plaint to the court of first instinct: the learned judge, in fact, appears to have failed to recognize that the same objection to the valuation would apply to the appeal as to the suit and that, until the stamp, which he considered payable on the memo, of appeal, was paid, then, according to the view which he took, he had no jurisdiction to deal with the appeal. we are of opinion that the learned judge's decision must be set aside on the ground that.....
Judgment:

1. This is an appeal against an order of the District Judge of the 24-Pergannahs setting aside a judgment and decree of the Court of first instance and then passing the following order: 'That the lower Court do return the plaint as insufficiently stamped.' The plaintiff in the suit, out of which this appeal arises, sued to recover a certain sum of money, which she alleged she was entitled. to as a co-sharer in the estate of, and as the descendant of one Gazi Shaheb through her father. The defence set up by the defendants was that she had no title to the amount claimed. The Court of first instance came to the conclusion that the plaintiff was, as an hieress of Gazi Shaheb through her father, entitled to the money which she claimed as her share in the offerings and income of a certain dctr'ga and, therefore, gave her a decree for the amount claimed. On appeal, the learned District Judge raised a point which was never taken in the Court of first instance nor included in the grounds taken in the memorandum of appeal to the lower Appellate Court. The point which he raised was that the suit was insufficiently valued and stamped, that on that account the lower Court was not able to adjudicate on it and that, therefore, the plaint must be returned to the Court of first instance as insufficiently stamped. In our opinion, the learned Judge was not, in the first instance, entitled in law to raise the point in favour of the defendants-appellants which he did raise and he certainly was not, in law, entitled to pass the order which he passed directing the return of the plaint to the Court of first instinct: The learned Judge, in fact, appears to have failed to recognize that the same objection to the valuation would apply to the appeal as to the suit and that, until the stamp, which he considered payable on the memo, of appeal, was paid, then, according to the view which he took, he had no jurisdiction to deal with the appeal. We are of opinion that the learned Judge's decision must be set aside on the ground that the learned Judge erred in law in raising the objection as to the valuation in his Court and in decreeing the appeal on that ground. Section 11 of-'Act VII of 1887 (Suits Valuation Act), to which our attention has been drawn by the learned Pleader for the appellant, clearly lays down that an objection, that by reason of under-valuation of a suit the Court of first instance had not jurisdiction in respect of the suit, 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 or in the lower Appellate Court in the memorandum of appeal to that Court. We find that, in this case, no objection whatever was taken either in the Court of first instance or in the memo, of appeal to the lower Appellate Court. Without, therefore, expressing any opinion on the merits of the case, we hold that the learned Judge was not, in law, entitled to raise the objection and to decree the appeal on that ground. This is in accordance with the decision of this Court in the case of Kola Chand Sen v. Anund Kristo Bose 22 W.R. 433. The result, therefore, is that we decree the appeal, set aside the judgment and decree of the, lower Appellate Court and direct that the case be sent back to that Court for re-hearing on the merits. Costs will abide the result.


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