(Firm) Bhimraj-Debi Baksh vs Gaya Prasad Sahu and Others

Harries, C.J.—This is an appeal from what is in effect an order returning a plaint for presentation to the proper Court. The suit was to set aside an ex parte Small Cause Court decree and the sale held in execution thereof on the ground of fraud. The suit was valued at Rs. 516, being the price fetched at the execution sale, and was originally instituted in the Court of third Munsif at Arrah, who had jurisdiction to try suits up to the value of Rs. 2000.

In the written statement no objection was taken to the valuation of the suit. The suit passed through its early stages in the Court of third Munsif, and when it became almost ready for hearing it was transferred to the Court of second Munsif, Arrah, whose pecuniary jurisdiction was limited to Rs. 1000 only. Even when the suit came to that Court, no objection was taken that it was undervalued or that that Court had no jurisdiction to try it. The trial commenced shortly afterwards. During the trial one of the plaintiffs stated in his evidence that the property was worth Rs. 5000 and that he himself purchased it for Rs. 1550 by a sale deed. The defendant thereupon raised the objection that the suit wag undervalued and that the Court had no jurisdiction to try it. The learned Munsif heard this objection and overruled it, holding that the suit, being in substance a declaratory suit, was properly valued at Rs. 516, the amount for which the property was purchased at the execution sale by the defendant. The suit proceeded to trial on the merits and was eventually decreed.

The defendant preferred as appeal from the decree which was; heard by the Subordinate Judge. In appeal the objection regarding under-valuation and want of jurisdiction of the trial Court was raised. The learned Subordinate Judge found that the disputed property was worth at least Bs. 1550 for which it was purchased by the plaintiffs themselves. Accordingly he held that the trial Court had no jurisdiction to try the suit, and without going into the merits of the appeal at all he set aside the trial Court''s decree and remanded the suit to that Court with the direction that

if the present Munsif, second Court, has got jurisdiction to try suits of value up to Rs. 1000 only, he would return the plaint to plaintiffs for presentation in proper Court.

Against this decision the plaintiffs have preferred this appeal. The decision is obviously wrong. Assuming that the property in suit is worth Rs. 1550 at least, still the learned Subordinate Judge had to consider the provisions of Section 11, Suits Valuation Act (7,of 1887). The material portions of that section are as follows: (The text of this section is printed on page 536.) It is to be noticed that there is the word ''or'' and not ''and'' between Clauses (a) and (b) in Sub-section (l).

This suggests that in either case, whether Clause (a) or Clause (b) applies, the appellate Court may entertain the objection as to jurisdiction of the lower Court. But Sub-sections (2) and (3) make it clear that in any case the appellate Court, in order that it may give effect to the objection, must be satisfied as to both the matters mentioned in Clause (b) of Sub-section (l). In the present case the objection regarding undervaluation was not taken in the Court of first instance at or before the hearing at which issues were first framed. Therefore, strictly speaking, the requirements of Clause (a) of Sub-section (1) are not satisfied. As regards Sub-clause (b), no doubt the appellate Court was satisfied that the suit was under-valued, but it did not at all'' consider the second part of that Sub-clause, namely, "whether the under-valuation prejudicially affected the disposal of the suit on its merits.

Unless the appellate Court > was also satisfied that the under-valuation prejudicially affected the disposal of the suit on its merits, it could not interfere with the decision of the trial Court. The position will be the same even if the requirements of Clause (a) of Sub-section (1) be considered to be satisfied by reason of the fact that the objection regarding under-valuation1 and jurisdiction was actually taken in the trial Court, though at a late stage. If the disputed property be taken to be worth Rs. 1550, no question of jurisdiction could arise so long as the suit was in the Court of the third Munsif. After the suit came to the Court of the second Munsif, when it transpired from the plaintiffs'' own evidence that the suit was undervalued the objection as to jurisdiction was taken.

It may therefore be said that the objection was taken at the earliest opportunity in the trial Court. "Court of first instance" in Clause (a) obviously means "trial Court." In this view Clause (a) would apply. Still under Sub-section (2) the appellate Court is to be satisfied as to both the matters mentioned in Clause (b) before it can refuse to deal with the merits of the appeal. So in any case the appellate Court has got to consider whether the under-valuation prejudicially affected the disposal of the suit on its merits.

Mr. Chaudhury Mathura Prasad on be half of the respondent relies on the case in Mahanth Rukmin Das Vs. Deva Singh @ Mahanth Deva Das and Others, and contends that the decision of the trial Court was without jurisdiction. The facts of that case were these: A suit valued at Rs. 2550 was filed in the Court of the Subordinate Judge. The defendants in their written statement contended that the suit was under-valued, and the court-fee paid was insufficient. Upon this plea the Subordinate Judge framed an issue, which however was not pressed at the trial and was accordingly decided in favour of the plaintiff. The suit was decreed, and on appeal to the District Judge by the defendant, the plaintiff did not object to the valuation of the appeal or to the jurisdiction of the District Judge to entertain the appeal. The decree of the first Court was reversed, and the plaintiff preferred a second appeal, The High Court upon the report of the stamp reporter held, that the valuation of the suit and therefore of the appeal should have been Rs. 8000.

The appellant paid the deficit court-fee, and on the strength Of the order of the High Court contended that the appeal to the District Judge was incompetent; and his decision was without jurisdiction. It was held that the undervaluation prejudicially affected the disposal of the appeal on the merits within the meaning of Section 11, Sub-section (C), Clause (b), Suits Valuation Act, and therefore the decision of the District Judge was without jurisdiction. So the learned Judges did consider the question whether the under-valuation prejudicially affected the merits of the case. They said:

In other words, the Court cannot enter into the merits of the case, whereas if it had come as a first appeal it would have entered into the merits of the case. Therefore, literally speaking, the disposal of the appeal on its merits has been affected on account of the under-valuation.

On the other hand, there is a decision also of a Division Bench of this Court in Kesho Prasad Singh v. Lakhu Rai AIR 1923 Pat. 581 in which under somewhat similar circumstances similar to those of the case in Mahanth Rukmin Das Vs. Deva Singh @ Mahanth Deva Das and Others, , it was "held that u/s 11, Suits Valuation Act, the decree of the District Judge could ''not be challenged as a nullity, the being no objection under Clause (a) nor any prejudice as contemplated under Clause (b). This case was referred to in Mahanth Rukmin Das Vs. Deva Singh @ Mahanth Deva Das and Others, , but was distinguished with reference to its own facts. Whether there is any conflict between these two decisions or not, it is enough for the purpose of the present case to state that Mahanth Rukmin Das Vs. Deva Singh @ Mahanth Deva Das and Others, may be distinguished on the ground that the learned Judges there did consider the question of prejudice. In the present case the learned Subordinate Judge has altogether overlooked the provisions of Section 11, Suits, Valuation Act. Mr. Mathura Prasad also argues that the trial of the suit by a Court of inferior jurisdiction would by itself raise a presumption that the decision was prejudicially affected on the merits. This argument is opposed to the spirit of Section 11, Suits Valuation Act.

Mr. S.K. Mitra for the appellants also attacks the learned Subordinate Judge''s finding regarding valuation. He contends that the proper value of the suit was the amount of the decree. But the plaintiffs themselves valued the suit at Rs. 516, the amount for which the disputed property was purchased by-the defendant at the execution sale.

It has been held by this Court in Pandit Brij Krishna v. Murli Rai AIR 1920 Pat. 656 and Shama Pershad v. Sheopersan Singh AIR 1920 Pat. 290 that where a suit is brought be set aside a decree and the sale held in execution thereof, the suit must be valued according to the relief which the plaintiff claims and the value of the relief must be the extent of the loss from which he wants to be relieved; the loss to him is his property which hag been sold in execution. Mr. S.K. Mitra attempts to distinguish these cases on the ground that in those cases there was a prayer for recovery of possession, whereas there is no such prayer in the present suit. But in this case there is a prayer for a permanent injunction to restrain the defendant from taking delivery of possession. This is a relief relating to possession of the property. It cannot there, fore be said that the finding of the learned Subordinate Judge is wrong. I should, however, observe that he has not come to a definite finding as to the actual value of the property. He says:

It is not known what the value of the property really is. Because P.W. 3 said it was worth Rs. 5000. I am not inclined to accept this valuation as correct. It will be a matter of evidence, but there is no doubt the property is worth Rs. 1550 at least.

No doubt Rs. 1550 was the value for ''which the plaintiffs themselves purchased ''the property, but the purchase was by private treaty and took place some time back. Due to change of circumstances the value might have since gone down. In the absence of convincing evidence to show that the value fetched at the auction sale was too low it may be said that the plaintiffs were to some extent justified in valuing the suit at Rs. 516. ''However, as the learned Subordinate Judge has not come to any definite finding, it will be open to him to reconsider the matter when it goes back to him.

In the result I allow the appeal and set aside the decision of the learned Subordinate Judge and send back the case to him for disposal according to law. The appellants will be entitled to the costs of this appeal. Leave to appeal under the Letters Patent is granted.

Harries C.J.

This is a Letters Patent appeal from a decision of Chatterji J., setting aside a decision of the learned Subordinate Judge and remanding a case to the Court of the learned Munsif. The suit giving rise to these proceedings was brought by the plaintiff for a declaration that a certain ex parte decree and a sale in execution thereof were not binding upon the plaintiff as it was alleged that the ex parte decree had been obtained by fraud. The suit was valued at Rs. 516 which was the price paid by the decree-holder for the property in the execution sale. The suit was instituted in the Court of the third Munsif at Arrah, who had, jurisdiction to hear suits up to Rs. 2000 in value.

However, before the suit was ready for hearing, it was transferred to the Court of the second Munsif who had only jurisdiction to try suits up to Rs. 1000 in value. Up to the stage of trial no objection had been taken that the plaintiff''s suit Was under-valued. During the trial, however, evidence was given which went to show that the property in question was worth at least Rs. 1500 if not considerably more. When this evidence was adduced, the defendants immediately took objection that the trial Court had no jurisdiction to hear the suit. The learned Munsif, however, held that the proper valuation was Rs. 516 arid that he had jurisdiction to dispose of the matter. Eventually he decreed the plaintiff''s claim.

On appeal it was contended before the learned Subordinate Judge that the evidence clearly showed that the value of the property was over Rs.1500 and that therefore the suit was under-valued. As the Munsif''s jurisdiction did not extend beyond Rs. 1000, it was contended that he had no jurisdiction whatsoever to hear the suit; The learned Subordinate Judge acceded to this contention, set aside the order of the Munsif and remanded the case to him with the direction that if he still had no jurisdiction to try suits exceeding the valuation of Rs. 1000, he should return the plaint to the plaintiff for presentation in the proper Court.

The plaintiff preferred a second appeal, and the learned Single Judge held that the decision of the lower appellate Court was manifestly wrong. The moment the learned Subordinate Judge came to the conclusion that the real value of the suit was over Rs. 1000 he held that the Court below had no jurisdiction whatsoever to hear it and, therefore, the plaint would have to be returned for presentation in the proper Court. The learn, ed Single Judge points out that the lower appellate Court had not considered the provisions of Section 11, Suits Valuation Act, (Act 7 of 1887). The material portions of that section are as follows:

11,. (1) Notwithstanding anything in Section 578, Civil P.C., an objection that by reason of the over-valuation or under-valuation of a suit or appeal a Court of first instance or a 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 appellate1 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 over-valuation or undervaluation 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), butt 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 deject of jurisdiction in the Court of first instance or lower appellate Court.

(3) If the objection was taken in that manner and the appellate Court is satisfied as to both those matters and has 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 appeals; but if it remands the suit or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a Court competent to entertain the suit or appeal.

It is clear that objection to valuation was not taken in the trial Court before the issues were framed, but the learned Single Judge was satisfied that it was taken at the first possible opportunity. In any event, the point was taken in the memorandum of appeal to the lower appellate Court. Sub-sections (2) and (3) of this section however make it clear that the matter has not to be disposed of summarily merely on the ground that the Court of first instance or lower appellate Court had no jurisdiction. Even in cases where the point as to under-valuation is properly taken, the Court can deal with the appeal provided the provisions of Sub-section (2) are complied with. That Sub-section expressly provides that if the objection was properly taken but the appellate Court is not satisfied as to both the matters mentioned in Clause (b), that is over or under-valuation and prejudice, the Court, if it has the materials before it, can proceed to determine the appeal. However, it cannot act under Sub-section (2) if it is satisfied that the question lot under-valuation has prejudicially affected [the disposal of the suit on its merits.

Before the learned Subordinate fudge could have disposed of the case, he should have satisfied himself one way or another on this question of prejudice. The learned Single Judge has rightly pointed out that; the learned Subordinate Judge never addressed himself to this question at all, and that being so, his decision could not be sustained. All that the learned Single Judge has done is to point out that the provisions of Sub-section (2) and (8) of Section 11, Suits Valuation Act, must be considered by the lower appellate Court and after consideration that Court must proceed according to law. If appears to me that on the plain words o� the section the learned Single Judge was bound to set aside the decision of the Court below and to make the order which he did.

In the result, therefore, this appeal fails-and I would dismiss it with costs.

Fazl Ali J.

I agree.