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Sarju Singh Vs. Smt. Gurdwaru and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 16 of 1962
Judge
Reported inAIR1963HP9
ActsHimachal Pradesh (Courts) Order, 1948; ;Court Fees Act - Section 7; ;Code of Civil Procedure (CPC) , 1908 - Section 115
AppellantSarju Singh
RespondentSmt. Gurdwaru and ors.
Advocates:D. R. Chaudhary
DispositionAppeal dismissed
Cases ReferredRamu v. Rana Vidhya Bhushan Singh
Excerpt:
- .....2 (vii) of the aforesaid order, 'value' ire relation to a suit means the amount or value of the subject-matter of the suit.3. the first question that arises for determination is as to what is the value of the subject matter of the suit under consideration. the expression 'subject matter of suit' has not been defined in the court fees or in the suits valuation acts or in the civil procedure code or ire the himachal pradesh (courts) order, referred to above. the word 'subject' according to its dictionary meaning means that which is dealt with and the compound word 'subject-matter' is tautological.the expression 'subject-matter of suit' sometimes refers to the concrete property to which the suit relates and sometimes to the title which is asserted in the suit and at others to the relief.....
Judgment:

C.B. Capoor, J.C.

1. This second appeal arises out of a suit filed by the appellant for a permanent injunction restraining the respondents from interfering with his possessory rights in the land described in the plaint. The suit was valued at Rs. 140/- for purposes of jurisdiction and payment of court-fee. The first and this appeal have also been similarly valued. The question for consideration is as to whether the second appeal is competent.

2. The first appellate Court had affirmed the decree of the trial Court and! as such the paragraph of the Himachal Pradesh (Courts) Order 1948 applicable to the question under consideration is 32 (1) (b) (ii). According to that provision a second appeal is competent if the value of the suit is rupees one thousand or upwards or the decree of the district Court involves directly some claim to or question respecting property of like value. According to para 2 (vii) of the aforesaid Order, 'value' ire relation to a suit means the amount or value of the subject-matter of the suit.

3. The first question that arises for determination is as to what is the value of the subject matter of the suit under consideration. The expression 'subject matter of suit' has not been defined in the Court Fees or in the Suits Valuation Acts or in the Civil Procedure Code or ire the Himachal Pradesh (Courts) Order, referred to above. The word 'subject' according to its dictionary meaning means that which is dealt with and the compound word 'subject-matter' is tautological.

The expression 'subject-matter of suit' sometimes refers to the concrete property to which the suit relates and sometimes to the title which is asserted in the suit and at others to the relief claimed. The aforesaid expression as used in the Himachal Pradesh (Courts) Order appears to refer (a) in a money suit to the amount claimed and (b) in a suit relating to property to the right or title of the plaintiff alleged to have been infringed. The relief claimed in a suit is commensurate with and co-related to the invasion of or the threat of invasion to the rights of a plaintiff and in a case in which a plaintiff has the option to value the relief at any amount such value may also be considered to be the value of the subject-matter of the suit. In the case of Chhotala Kalidas v. Laxmidas Mayaram, AIR 1959 Bom 517 the expressions 'the value of the subject-matter of the suit' and 'the value of the relief sought' were, as would appear from the following extract, treated as interchangeable :

'Evidently under Section 7 (iv) (c) the plaintiffs have the right to put their own valuation on the subject-matter of the suit and it is on the valuation put by the plaintiffs that the court-fee is exigible. By Section 8 of the Suits-Valuation Act 1887 in suits falling under Section 7 (iv) (c) the value determinable for the computation of court-fees and the value for purposes of jurisdiction are to be the same; that is, the valuation adopted by theplaintiff for computing the court-fees governs the jurisdiction of the Court in which the suit is instituted'.

4. In the instant case the plaint allegations were that the plaintiff-appellant was the tenant of the land described in the plaint and was in possession of the same and the defendants-respondents were interfering with his possession. On the aforesaid allegations it was claimed that an injunction in perpetuity be issued to the respondents restraining them from interfering with the possession of the plaintiff-appellant over the land in suit. Under Section 7 (iv) (d) of the Court Fees Act the plaintiff-appellant had the option to value the relief at any amount he liked and he valued it at Rs. 140/-. Normally the valueof the subject-matter of the suit should also be considered to be Rs. 140/-. The learned counsel for the plaintiff-appellant has now stated that the value of the subject-matter of the suit is Rs. 1,000/-. I enquired of him as to what was the basis for his saying so or forthe valuation of the relief in the plaint and he frankly stated that both the valuations were arbitrary.

The question, therefore, that arises for consideration is as to whether a plaintiff who having the option to value the relief at any amount he likes has valued the relief can subsequently be allowed to change that valuation without any cogent basis or in other words is it open to a plaintiff to substitute one arbitrary valuation by another without any justification for the change just to enable him to prefer a second appeal.

5. While it is open to an appellant to state that the market value of the subject-matter of suit is differentfrom the one stated in the plaint he has to substantiate such an allegation and his mere ipse dixit cannot be sufficient for the purpose.

6. On behalf of the appellant my attention has been invited to a ruling of this Court reported in Bhagwandas v. Debi Ram, AIR 1953 Him Pra 25. An application for partition of land was filed by the defendant of that suit in the Revenue Court. The application was opposed by the plaintiff on the ground that he was the sole proprietor of the entire land. He was directed by the revenue Court to get his title declared by a competent Court and he filed a suit for declaration of title. The suit was valued for jurisdictional purposes at Rs. 250/- but when second appeal was filed the value of the subject-matter of suit was stated to be more than Rs. 1,000/-. The aforesaid allegation was found to be substantiated and a second appeal was held to be competent.

7. It will have been noticed that the subject-matter of the suit was land and its market value was capable of ascertainment. That case is, therefore, distinguishable from a case like the present the value of the subject-matter of which has to be fixed arbitrarily.

I am alive that there are decisions of other High Courts e. g. in the cases of Poosa Thorai v. KannappaChetty, AIR 1918 Mad 1099 and Lakshminarasimhacharyulu v. M. Ratnam, AIR 1949 Mad 739 in which it has bean held that a petitioner for leave to appeal under Section 110, Civil P. C., is not precluded from showing that the real value of the subject-matter in appeal is different from the court-fee value.

The principle on which the aforesaid decisions are based is, if I may say so with respect, sound and unexceptionable. The question for consideration, however, is as to whether the aforesaid principle is applicable to acase in which an attempt is made by a party to a suitto substitute one arbitrary valuation by another without any justification with the sole object of being able to make the appeal entertainable. So far as I am aware there is no decided case in which a plaintiff was allowed to substitute another arbitrary value at the appellate stage for the arbitrary value set forth in the plaint the object of substitution being that the appeal may be entertained.

8 In fine, I hold that where in a suit for injunction like the present a relief has been valued by a plaintiff in accordance with the provisions of Section 7 of the Court Fees Act and the subject matter of the suit does not admit of being satisfactorily valued he cannot be allowed to change the value of the subject-matter without any cogent basis just to enable him to file a second appeal. A second appeal is, therefore, not competent under the first part of paragraph 32 (1) (b) (ii) of the Himachal Pradesh (Courts) Order 1948.

9. It has next to be seen if the instant appeal is competent under the second part of the aforesaid paragraph of the Himachal Pradesh (Courts) Order. Along with the memorandum of appeal an affidavit was filed by the appellant indicating that the land in dispute was more than Rs. 20,000/- in value.

10. Paragraph 2 of Section 110, Civil P. C., and Sub-clause (b) of Article 133 (1) of the Constitution run as below :

'Section 110 (2) : or the judgment, decree or final order must involve, directly or indirectly, some claim or question to or respecting property of like amount or value'.

'Article 133 (1) (b) : that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value'.

11. It will have been noticed that the material difference between those provisions and the one contained in the second part of paragraph 32, referred to above, is that indirect involvement of property is also covered by the former but nothing turns on that difference in determining the question as to whether the criterion for the application of those provisions should be the value of the claim to or question respecting property or the value of the property.

The aforesaid question has in some reported decisions arisen with reference to Section 110, Civil P. C., and there has been divergence of judicial opinion thereon. I do not propose to notice those cases as the question arose in this Court with reference to Article 133 of the Constitution in the case of Ramu v. Rana Vidhya Bhushan Singh, AIR 1961 Him Pra 27 and the view then expressed was that it is the amount of the claim or value of question respecting property which will govern the question of the entertainability of the appeal. I have given the question careful consideration again and see no reason to take a different view. In view of the fact that the language of the second part of the aforesaid paragraph of the Himachal Pradesh (Courts) Order is substantially similar to the language in which Sub-clause (b) of Article 133 (1) is couched both the provisions should be interpreted in the like manner.

I am alive to this that while in the aforesaid provisions of the Constitution and Civil Procedure Code there is no comma after the word 'claim' or the word 'respecting' there is a comma after the words 'claim to' and 'respecting' in the relevant paragraph of the Himachal Pradesh(Courts) Order. Punctuation, according to the well established canons of interpretation, is however, no part of the statute, vide Maxwell on Interpretation of Statutes, Eleventh Edition, pp. 41 and 42. If the intention of the Central Government in making paragraph 32 of the Himachal Pradesh (Courts) Order 1948 had been that the determining factor for the coming into play of the alternative second part should be the value of property the words 'some claim to or question respecting' would not have found place and the relevant provision would have read as below :

'or the decree of the District Court involves directly property of like value'.

if the aforesaid provision is interpreted in the manner indicated In the foregoing portion of this judgment a second appeal which is not competent under the first part of the aforesaid paragraph will be incompetent under its second part also in cases in which the decree of the first appellate Court affects that property only which was in the trial Court for in such cases the value of the subject-matter of the suit will be the same as the value of the claim or question respecting property and there will be harmony between the two parts of the provision. Different considerations will, however, arise in cases in which the decree or order of the first appellate Court involves directly some claim to or question respecting property additional to the property in respect of which relief is claimed in the suit. Thus the second appeal is not competent under the second part of paragraph 32 (1) (b) (ii) af the Himachal Pradesh (Courts) Order 1948 either.

12. In the AIR 1953 Him Pra 25 (supra) my learned predecessor, Chowdhry J. C., had laid down the view of the Court in regard to the maintainability of second appeals under paragraphs 32 of the Himachal Pradesh (Courts) Order 1948 as below:

'If the value of the suit, which means the amount ot the subject-matter of the suit or the market value of the property which is the subject-matter of the suit, satisfies the condition of the money value under the relevant provision of the said paragraph, the appeal will be maintainable under the first alternative of the value of the suit, and in that case it will not be necessary to call in aid the other alternative of the decree appealed from involving directly some claim to, or question respecting, property of like value. The latter alternative can, however, be availed ofwhere the decision, beyond awarding relief in respect of the particular property which is the subject-matter of the suit, affects rights in other properties as well, and, on the same principle, this alternative may also apply in cases where the matter in dispute is one which is incapable ot valuation, as in the case of easements'

and I with respect feel tempted to supplement it by saying :

1. that the value of the subject-matter of suit is not necessarily the value of the property in respect of which the suit is filed, nor is such value necessarily the same as the value of the suit for purposes of jurisdiction though in some cases like suits under Section 7 (iv) of the Court Fees Act the value of the subject-matter of the suit and the jurisdictional value of the subject-matter of the suit may be the same;

2. that in suits covered by Section 7 (iv) of the Court Fees Act in which a plaintiff has the option to value the relief sought the value of the relief is normally the value of the subject-matter of the suit;

3. that it is not open to a plaintiff to substitute an arbitrary valuation by another arbitrary valuation simply with a view to be able to prefer a second appeal;

4. that for the application of the second alternative or the decree of the district Court involves directly some claim to or question respecting property of like value it is the value of the claim or question and not the value of the property which is the determining factor; and

5. that if the property directly involved in the decree of the district Judge is the same in respect of which the suit was filed and if a second appeal is incompetent under the first part relating to the value of the suit it will also be incompetent under the second part.

13. It has next been urged on behalf of the appellant that if the appeal is not held to be competent, it may be treated as an application in revision. Before the revisional jurisdiction of this Court can be invoked it must be shown that the Court below has usurped jurisdiction which did not vest in it or has failed to exercise jurisdiction which vested in it or has acted with material irregularity in the exercise of its jurisdiction.

It has not been disputed on behalf of the appellant that the Court of the District Judge had the jurisdiction to decide the appeal. It has not been shown that it acted with material irregularity in the exercise of its jurisdiction. What is contended is that the finding recorded by the learned District Judge that the appellant was not the tenant of the disputed land was perverse. A finding is perverse if it is not at all supported by the evidence on record and no reasonable Judge could arrive at it.

Thus where there is evidence in support of the finding it cannot be said to be perverse. In the instant case there was ample oral evidence to bear out the conclusion reached by the learned District Judge. Assuming but not deciding that another Court might have come to a different conclusion that by itself will not be a ground for entertaining the application in revision. I, therefore, refuse to treat the appeal as an application in revision.

14. The appeal is dismissed on the score of not being competent.


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