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1994 Supreme(MP) 373
1995 JLJ 42
P.P. Naolekar, J.
Brihaspati Bai v. Mohanlal Chintaram and others
Misc. Appeal No. 212 of 1994; Decided on 23.4.1994.
Ravish Agarwal for appellant; S.C. Pandey for respondents.
Headnote:(1) Civil P.C., 1908 -- S. 100 and O.43 R. 1(u) -- order of remand passed by first appellate Court -- second appeal not maintainable -- miscellaneous appeal lies under O. 43 R. 1 (u) -- second appeal may be converted into miscellaneous appeal on appropriate application. [Para 6
(2) Civil P.C., 1908 -- O. 41 R. 23A and O. 43 R. 1 (u) -- order of remand after setting aside the judgment and decree of trial Court -- is appealable under O.43 R. 1 (u). [Para 8
(3) Civil P.C., 1908 -- S. 21 (2) -- pecuniary jurisdiction of trial Court – objection raised in trial Court and appellate Court as well -- judgment and decree cannot be set side unless trial has been shown to have resulted in failure of justice.
(4) Suits Valuation Act, 1887 -- S. 11 -- objection as to under-valuation or over-valuation -- cannot prevail in absence of failure of justice.
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. AIR 1954 SC 340 and AIR 1993 SC 2094 followed. 1975 JLJ 384 and 1984 MPLJ SN 63 dissented from. [Paras 10 to 12
¼1½ flfoy izfØ;k lafgrk] 1908 && /kkjk 100 rFkk vk- 43 fu- 1¼i½ & izfrizs"k.k dk vkns‘k] izFke vihy U;k;ky; }kjk ikfjr && f}rh; vihy xzká ugha && izdh.kZ vk- 43 fu- ¼i½ ds v/khu gksxh && leqfpr vkosnu ij f}rh; vihy izdh.kZ vihy esa laifjofrZr dh tk ldrh gSSA ¿ iSjk 6À
¼2½ flfoy izfØ;k lafgrk] 1908 && vk- 41 fu- 23d rFkk vk- 43 fu- ¼i½ && fopkj.k U;k;ky; ds fu.kZ; rFkk fMØh dh vikfLr ds i‘pkr~ izfrisz"k.k dk vkns‘k && vk- 43 fu- 1 ¼i½ ds v/khu vihy ;ksX; gSA ¿ iSjk 8À
¼3½ flfoy izfØ;k lafgrk] 1908 && /kkjk 21¼2½ & fopkj.k U;k;ky; dh /ku&laca/kh vf/kdkfjrk && vk{ksi fopkj.k U;k;ky; ds lkFk vihy U;k;ky; eas Hkh fd;k x;k && tc rd fd fopkj.k dk vU;k; esa ifj.kr gksuk n‘kkZ;k ugha tkrk] fu.kZ; rFkk fMØh vikLr ugha fd, tk ldrsA
¼4½ okn ewY;kadu vf/kfu;e] 1887 && /kkjk 11 && U;wu ewY;kadu vFkok vfrewY;kadu ds ckjs esa vk{ksi && vU;k; dh vfo|ekurk esa vfHkHkkoh ugha gks ldrkA
flfoy izfØ;k lafgrk dh /kkjk 21 rFkk 99 vkSj okn ewY;kadu vf/kfu;e dh /kkjk 11 dh vk/kkj uhfr ,d gS] uker]% vihy tc U;k;ky; }kjk ekeys ds xq.kkxq.k ij fopkj fd;k tk pqdk gks rFkk fu.kZ; fn;k tk pqdk gks] og rduhdh vk/kkj ij myVs tkus ds nkf;Rok/khu ugha gksuk pkfg, tc rd vU;k; u gqvk gks] rFkk fo/kku eaMy dh uhfr] tc rd xq.kkxq.k ij izfrdwy izHkko u iM+k gks] {ks=h; rFkk /ku&laca/kh] nksuksa vf/kdkfjrkvksa ds fo#) vk{ksiksa dks ek= rduhdh rFkk vihy U;k;ky; }kjk fopkj ds v;ksX; ekuus dh jgh gSA , vkb vkj 1954 ,l lh 340 rFkk , vkb vkj 1993 ,l lh 2094 vuqlfjrA 1975 ts ,y ts 384 rFkk 1984 ,e ih ,y ts ,l ,u 63 folEerA ¿ iSjk 10 ls 12À
1. This order shall also govern disposal of analogous case M.A. No. 213/94.
2. The facts relevant for the consideration of the question involved in this case are in brief, on 19.2.1980 the plaintiff appellant filed a suit for declaration of the title and permanent injunction against the respondent; regarding suit house and the open land appurtenant thereto, situated at Sadar Bazar, Ram Mandir, Durg. The plaintiff-appellant claimed exclusive title to the suit property on the basis of will executed by her husband Chintaram on 19.1.1979 (Ex. P19) whereas the case of the defendants-respondents 1 to 5 is based on a will executed by Chintaram in their favour of the suit property on 4.12.1979 (Ex. D1). The suit was valued at Rs.300/- for the purposes of declaration and injunction and fixed Court fee of Rs.30/- for declaration and Rs.30/- for permanent injunction was fixed. The civil suit was filed in the Court of Civil Judge, Class II, Durg.
3. First, second and third respondents entered appearance and filed their written statement raising amongst other questions on the ground that the suit as it is filed is not maintainable in the Court of Civil Judge, Class II as the value of the suit property is Rs. 1.50 lacs. It is said that the Court does not have pecuniary jurisdiction to try the suit and the Court fee paid is in appropriate. On 5.9.1980 preliminary issue was framed by the Court regarding the Court fee paid on the plaint and the jurisdiction of the Court to try the suit. After some dates on 25.1.1989 the Court took up the matter and had passed an order that the preliminary issue framed by the Court shall be decided along with other issues on merits.
4. Aggrieved by the said order of deciding the preliminary issue along with other issues the first to third respondents have filed revision petition before the District Judge which was registered as Civil Revision No.1/89. By order dated 13.9.1989 the District Judge gave direction, for trial of the preliminary issue, before entering into the merits of this case. As per the directions of revisional Court the Civil Judge, Class II on 28.9.1989 decided the preliminary issue and has held that the Court has jurisdiction to try the suit. The Court fee paid on the plaint is proper. Thereafter the matter was taken up for final disposal. After recording evidence and hearing argument by judgment and decree dated 18.7.1991 the suit filed by the plaintiff was decreed in to-to.
5. Aggrieved by this judgment and decree passed by the trial Court respondent 1 to 3 preferred an appeal. On 11.10.1991 the appellate Court had set aside the judgment and decree passed by the trial Court only on the ground that the trial Court had no pecuniary jurisdiction to hear the suit and that the Court fee paid by the plaintiff-appellant was not proper. However, the appellate Court had decided all other issues on merits in favour of the plaintiff. The matter had been remanded back with the direction to the trial Court that the plaint be returned to plaintiff for presentation of the suit before proper Court, having jurisdiction to adjudicate the matter in dispute having regard to pecuniary jurisdiction of the Court. The appellate Court has remanded the matter to the trial Court after setting aside the judgment and decree of the trial Court on the ground that the trial Court had no pecuniary jurisdiction to try the civil suit as it was filed by the plaintiff, but all other issues have been decided in favour of the plaintiff.
6. The plaintiff-appellant and 4th respondent to 6th respondent filed two separate second appeals against that judgment. The appeals were registered as S.A. Nos. 419/91 and 458/91 an objection was raised by the respondents that the second appeals under section 100 of the Code of Civil Procedure are not maintainable. The High Court has heard the matter on preliminary objection and has held that the second appeal as it is filed is not maintainable. It is an order of remand made by the lower ap
