Kamla Bai Wd/o Tolaram Bairagi v. Smt. Samkpatbai Wd/o Motidas Bairagi

O R D E R (Passed on 9th May, 2012) This order will govern the disposal of M.A. No.276/2007 and M.A. No.278/2007, which have been filed against the common judgment dated 27.6.2005 passed by the Court of Additional District Judge Jhabua in Civil Appeal No.22A/2005 and 23A/2005. 2/ The appellants had filed the suit for declaration, possession and mesne profit against the respondents being C.S. No.16-A/1988. In that suit the respondents had raised an objection in respect of the payment of court fee and an issue 2 was framed by the trial Court in this regard. The trial Court by judgment dated 30.8.2001 had decreed the suit filed by the appellants. In respect of the issue no.9 relating to the court fee, the trial Court found that the suit was not properly valued by the appellants and proper court fee was not paid. The trial court, therefore, directed that the decree would become executable only on payment of the proper court fee by the appellants. 3/ Civil Appeals No.22A/2005 and 23A/2005 were preferred by the respondents before the lower appellate court against the judgment of the trial Court. The lower appellate court by the judgment dated 27.6.2005 has found that since the suit was not properly valued and proper court fee was not paid, therefore, the trial Court had no jurisdiction to decide the suit. The lower appellate court took the view that the trial Court should have return the plaint instead of passing a decree in favour of the appellants. The lower appellate court, therefore, has set aside the judgment of the trial Court and remanded the matter back to the trial court with a direction to get the suit properly valued and return the plaint to the appellants for filing before the court of competent jurisdiction. 4/ Learned counsel appearing for the appellants submits that the lower appellate court has committed an error in not considering Section 11 of the Suits Valuation Act and in not appreciating that no prejudice is caused to the respondents by the judgment of the trial Court and the judgment of the lower appellate court would result into mere change in forum. 5/ Learned counsel appearing for the respondents has supported the judgment of the lower appellate court and 3 submitted that since the trial Court had no jurisdiction to pass the judgment and decree, therefore, the lower appellate court had rightly set aside the judgment of the trial Court and remanded the matter back to the trial Court with direction. 6/ I have heard the learned counsel for the parties and perused the record. 7/ The trial Court had framed the issue relating to the court fee and had found that the suit was not properly valued and that the sufficient court fee was not paid, therefore, though the trial Court granted a decree in favour of the appellant but the trial Court had directed that the said decree would become executable on payment of the proper court fee by the appellants. 8/ The lower appellate court has affirmed the findings which have been recorded by the trial Court on the merits of the controversy involved between the parties, but has set aside the judgment of the trial Court solely on the ground that the suit was not properly valued, therefore, the trial Court had no jurisdiction to decide the suit. While passing the judgment under appeal, the lower appellate Court has not considered Section 11 of the Suits Valuation Act and the judgment of this Court on the point. 9/ Section 11 of the Suits Valuation Act provides for the procedure where objection is taken in appeal or revision that a suit or appeal was not properly valued for jurisdictional purposes. According to section 11, such an objection should not be entertained by the appellate court unless the conditions mentioned under Clause (a) and (b) of sub-section 1 of section 11 are satisfied. 4 10/ This Court in the matter of Brihaspati Bai wd/o Chintaram Swarnkar Vs. Mohanlal Chintaram Swarnkar and others reported in 1994 MPLJ 878, has considered the similar issue in somewhat similar fact situation and has taken the view that :- “13. The respondents have raised question of pecuniary jurisdiction of the trial Court to try the suit at the first instance and before the issues were framed. The appellate Court has also taken note of this situation while deciding the question of jurisdiction of the trial Court. However, the entire judgment of the appellate Court does not indicate that the first appellate Court has directed itself as to the question of whether under valuation of the suit and consequent trial of the suit and delivery of the judgment has prejudicially affected the disposal of the suit on merits or that judgment delivered by the trial Court has resulted in consequential failure of justice. No such finding has been recorded by the appellate Court. It is now well settled that unless lack of pecuniary or territorial jurisdiction results in failure of justice the judgment of the trial Court will not be set aside by the appellate Court on that count. 14. In the absence of any findings on application of section 11 of the Suits Valuation Act and section 21(2) of the Code of Civil Procedure the judgment and decree of the appellate Court in C.A. No.37A/91 setting aside judgment and decree of the trial Court is illegal and is hereby set aside. As a result thereof the matter is remanded back to the first appeal judge only to consider and decide question of jurisdiction exercised by the 5 trial Court in deciding Civil Suit No.8A/91 in the light of the decision given in this case after hearing both the parties and pass appropriate judgment and decree. It is made clear that decisions given by the appeal Court on all other issues are not set aside. The appeal is allowed but without costs.” 11/ The aforesaid view has been taken by this Court placing reliance upon the judgment of the Supreme Court in the matter of Kiran Singh and others Vs. Chaman Paswan and others reported in AIR 1954 SC 340, wherein the Supreme Court has taken the view that the policy underlying Section 11 of the Suits Valuation Act and Section 21 and 99 of the CPC is the same i.e. when a case has been tried by the Court on 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 legislature has been to treat objections as to jurisdiction, both territorial and pecuniary, as technical and not open to consideration by an appellate court, unless there has been prejudice on merits. 12/ This Court in the matter of Harlal Gulla Kachhi and another Vs. Kanchhedilal Kashiram Nema reported in 1998(1) MPLJ 115 has also taken the same view. 13/ Since in the present case the lower appellate court while setting aside the judgment of the trial Court on the ground of the lack of jurisdiction due to improper valuation and insufficient payment of court fee has not considered the effect of section 11 of the Suits Valuation Act and has not examined if the under valuation of the suit has prejudicially affected the 6 disposal of the suit, therefore, the judgment of the lower appellate court in respect of the issue no.9 so far as it relates to setting aside the judgment of the trial Court on the ground of valuation, court fee and jurisdiction is concerned, can not be sustained and is hereby set aside and the matter is remanded back to the lower appellate court for deciding the issue no.9 afresh in the light of the provisions contained in section 11 of the Suits Valuation Act and the relevant judgments on the point including the judgment mentioned above. It is made clear that the decision given by the lower appellate court on all other issues has not been set aside. 14/ The appeals are allowed to the extent indicated above. 15/ Signed order be kept in the record of M.A. No.276/2007 and a copy of this order be placed in the record of connected M.A. No.278/2007. No costs. Trilok/- (PRAKASH SHRIVASTAVA) JUDGE