K. Muthiyan Nadar vs R. Vijayarani and Others

Srinivasan, J.—On September 28, 1972, the Subordinate Judge of Padmanabhapuram passed a decree in O.S. No. 85 of 1971 on his file

in favour of the father of the respondents herein against the petitioner herein for certain sum of money. The decree was amended by order dated

8.10.1974 made in I.A. No. 331 of 1974 and after amendment, the decree directed the petitioner herein to pay a sum of Rs. 3,200 with interest at

6% per annum from the date of decre till date of realisation along with proportionate cost of Rs. 652-25 and the petitioner was granted six months

time to pay the amount. The petitioner not having complied with the decree, the decree-holder set the execution proceedings in motion in E.P. No.

28 of 1979. The petitioner herein claimed to be entitled to the benefits of the Tamil Nadu Act 31 of 1976 on the footing that he is a ''small farmer''

as defined by the Act. The executing Court, viz., the Subordinate Judge, Kuzhithurai, negatived his claim and ordered execution by order dated

30.10.1979. The petitioner herein filed C.R.P. No. 2829 of 1979 in this Court against that order. During the pendency of the revision petition, the

decree-holder died and his children, the respondents herein, were brought on record as his legal representatives. By order dated 17-6-1985, this

Court set aside the order of the executing Court and remanded the matter to the Subordinate Judge, Kuzhithurai for deciding the question whether

the petitioner is entitled to the benefits of Tamil Nadu Act XXXI of 1976 after giving an opportunity to both parties to adduce evidence thereon.

After remand, the petitioner herein filed an additional counter in the E.P., objecting to the jurisdiction of the Subordinate Judge to enquire on the

ground that after the Civil Courts Amendment Act, the pecuniary jurisdiction of the District Munsif having been raised to Rs. 15,000 the matter

could be dealt with only by the Court of the District Munsif. However, evidence was adduced by both parties. The Subordinate Judge,

Kuzhithurai, passed an order on 6-10-1987 holding that the petitione herein is not a ''small farmer'', as defined by Tamil Nadu Act XXXI of 1976

and directing further proceedings] in execution. It is the said order which the petitioner seeks to displace in this revision petitioner.

Sri A. Shanmughavel appearing for the petitioner contended that the Subordinate Judge, Kuzhithurai, had no jurisdiction to execute the decree

after the passing of Tamil Nadu Civil Courts and Madras City Civil Court (Amendment) Act, 1980 (Act 34 of 1980), whereby the pecuniary

jurisdiction of a District Munsif was raised to Rs. 15,000 from Rs. 5,000. The Act came into force on 7-3-1981. Learned Counsel drew my

attention to Section 4(2) of the Amendment Act which reads thus:

(2) All suits and proceedings of which the amount or value of the subject-matter exceeds rupees fifteen thousand pending in any Sub-Court or

District Court, as the case may be, on the date of the commencement of the Act, shall stand transferred to the Court of the District Munsif having

jurisdiction over the matter.

According to learned Counsel, the language of the section is mandatory and the execution proceeding stood automatically transferred to the Court

of the District Munsif and the Sub Court lost its jurisdiction to proceed with the matter. Learned Counsel placed reliance on the ruling of a Division

Bench in In Re: Parthasarathi Naidu and Another, , which was approved by the Full Bench in Ramanathan Chettiar v. Lakshmanan Chettiar

(1963) 1 M.L.J. 46 in support of his contention that the Civil Courts Amendment Act is retrosped in operation. He relied on the judgment of the

Supreme Court in Kiran Singh and Others Vs. Chaman Paswan and Others, and that of Ratnam, J. in S. Kandaswamy Chettiar Vs. State of Tamil

Nadu and Another, following the Supreme Court for the proposition that a decree passed by a Court without jurisdiction is a nullity, whether the

defect is pecuniary or territorial or in respect of the subject matter of the action. On the merits, learned Counsel submitted that the order of the

learned Subordinate Judge is vitiated by a misreading of the evidence of R.W.I and, therefore, liable to be setaside by this Court in revision.

In answer to the above contentions, Sri K. Srikumar Nair urged on behalf of the respondents that the order of remand made by this Court in

C.R.P.No.2829 of 1979 expressly directed the Subordinate Judge, Kuzhithurai, to enquire into and decide the matter and no other Court can

have jurisdiction over the same. He relied on the judgment of Krishnan J., in Uthaman Ammal v. Naina Mohamed Rowther 44. M.L.J.238 in

support of that contention. He argued further, the Sub Court had jurisdiction to deal with any matter irrespective of its value and this is not a case

of total lack of jurisdiction. According to him, the petitioner having failed to bring to the notice of this Court at the time of disposal of C.R.P. No.

2829 of 1979, the provisions of Tamil Nadu Act 34 of 1980 is not entitled to raise the question of jurisdiction after the matter was specifically

remanded to the Sub-Court. Learned Counsel placed reliance on Sections 21 and 99-A of the CPC and submitted that the petitioner has not been

prejudiced in any manner by the matter being dealt with by the Sub Court which is a higher Court than that of the District Munsif. Lastly, learned

Counsel invoked the principle laid down by Ismail, J., in Chennichi Alias Parikkal Goundar Vs. D.A. Srinivasan Chettiar, and submitted that justice

having been done by the Court below, this Court should not exercise its discretionary power u/s 115, C.P.C. to interfere with the order. On the

merits, he contended that the learned Subordinate Judge had correctly understood the evidence of R.W.I which rang the death knell to his claim as

''small farmer'' and the order of the Court below deserved to be confirmed.

I have already extracted the terms of Section 4(2) of Tamil Nadu Act 34 of 1980. That section cannot apply to the present case as on the date

of commencement of the Act, viz., 7.3.1981, there was no suit or proceeding in the Sub-Court and District Court. While Section 4(1) of the Act

deals with suits pending in the High Court, Section 4(2) deals with suits and proceeding pending in the Sub Court and District Court. On the

relevant date, in this case, the matteer was pending in this Court in C.R.P. No. 2829 of 1979. It was the duty of the parties to have brought to the

notice of this Court at the time of disposal of the revision petition the provisions of Act 34 of 1980 and prayed for a direction to send the matter to

the Court of the District Musif instead of sending it back to the Sub-Court. As held by Krishnan, J., in Uthuman Ammal v. Naina Mohamed

Rowther 44 M.L.J. 238, the matter having been specifically remanded to the Sub Court, it is not open to the petitioner who is a party to the order

of remand to contend that the Subordinate Judge had no jurisdiction.

There is a fallacy in the contention that the Subordinate Judge had no jurisdiction. The first part of Section 12 of the Tamil Nadu Civil Courts

Act is in the following terms:

The jurisdiction of a District Judge or a Subordinate Judge extends, subject to the rules contained in the CPC to all original suits and proceedings

of a Civil nature.

Thus, the Subordinate Judge as well as the District Judge have jurisdiction to try all suits whatever be the value. The only limitation is to be found in

the rules of the Code of Civil Procedure. Section 15 of the case of Civil Procedure reads thus:

Every suit shal be instituted in the Court of the lowest grade competent to try it.

Though the language of the section is mandatory, it has been held that the section prescribes only a rule of procedure and not of jurisdiction; a

direction to the suitor and not a rule binding the Court. Vide (1) Gidmilal v. Haznar Hussain ILR 7 All. 239; (2) Matra Mondal v. Hari Mohan

Mullick ILR 7 Cal. 155; (3) Krishnaswami v. Kanakasabai ILR 14 Mad. 183; (4) Augustine v. Medlycott ILR 15 Mad. 241. Both the decisions

of this Court referred to above are of Division Benches while the Allahabad ruling is that of a Full Bench. A similar question arose with reference to

Agency Rules in Gowgachandra Patnaikudu v. Vikram Deo I.L.R.23 Mad. 367, before a Division Bench. The appellant''s counsel relied on the

absence of a provision in the Agency Rules similar to Section 12 of the Civil Courts Act and contended that the agent of the Governor did not have

concurrent jurisdiction with the Divisional Assistant''s Court. The respondent''s counsel relied on the absence of a rule similar to Section 15, C.P.C.

and contended that there was no want of jurisdiction in the agent who was the higher Court. The Division Bench referred to the aforesaid four

decisions and accepted the principle to be correct. The Bench applied the rule to the Agency Court and upheld the order passed by the Agent.

In Suryanarayana v. Bullayya A.I.R.1927 Mad.568, Sundaram Chetty, J., held that the trial of a suit by a higher Court when it is triable by a

Court of lower Grade by virtue of Section 15, C.P.C. is merely an irregularity. A similar question arose in a different context before a Full Bench in

R. Rama Subbarayalu Reddiar Vs. Rengammal, . The question related to the jurisdiction of a Subordinate Judge invested with powers by a

notification u/s 29(1) of the Tamil Nadu Civil Courts Act issued by the High Court to hear and dispose of proceedings under the Indian Succession

Act. While considering that question, the Full Bench made the following observations which are relevant for this case;

Vesting of authority in a Subordinate Judge to entertain and dispose of contentious applications for probate etc., u/s 29(1) of Madras Civil Courts

Act cannot take away the jurisdiction of the District Judge over such matters. The result is, both the Subordinate Judge and the District Judge will

have concurrent jurisdiction to take cognizance of contentious applications for probate etc., relating to matters arising within the jurisdiction of the

former. u/s 15 of the Civil Procedure Code, where more than one Court has a jurisdiction over a matter, the case should be instituted only in the

Court of the lower grade competent to try it. The Sub Court being a Court lower to the District Court in the hierarchy of Courts, the aplication for

grant of probate or letters of administration will have to be instituted only in that Court. But this is only a rule of procedure. Therefore, Section 15

of the CPC does not deprive the District Court of its jurisdiction. As observed by Petharam, C.J., in Nidhi Lal v. Mazhar Hussain ILR 7 All. 230,

the word shall is in my opinion imperative on the suitor, the word is used for the purpose of protecting the Courts. The suitor shall be obliged to

bring his suit in the Court of the lowest grade competent to try it. The object of the legislature is that the Court of the higher grade shall not be over

crowded with suits. The proviso is for the benefit of the Court of higher grade, and it is not bound to take advantage of it. If it does not wish to try

the suit, it may refuse to entertain it. If it wishes to retain the suit in its Court it may do so. It is not bound to refuse to entertain it.

Thus, it is clear that the hearing and disposal by a Sub Court of a proceeding triable by a District Munsif is only an irregularity and not an

illegality; nor does it affect the jurisdiction of the Sub Court. The Tamil Nadu Civil Courts Amendment Act, 1980, has not amended the first part of

Section 12. By enhancing the pecuniary limits of the jurisdiction of a District Munsif, the jurisdiction of the Subordinate Judge conferred by the first

part of Section 12 is not in any way affected. Once, its is held to be an irregularity, the matter will fall u/s 99-A of the CPC which reads thus:

Without prejudice to the generality of the provisions of Section 99, no order u/s 47 shall be reversed or substantially varied, on account of any

error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudically affected the decision of

the case.

Unless the petitioner proves that he is prejudically affected by the matter having been disposed of by the Sub-Court, he cannot seek to have the

order dislodged.

The position will be almost the same even if it is a question relating to the pecuniary jurisdiction of the Court. Section 21(2), C.P.C. reads as

follows:

No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or

Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases, where issues are

settled, at or before such settlement and unless there has been a consequent failure of justice.

Three conditions are essential under this section:

(1) The objection was taken in the Court of first instance;

(2) It was taken at the earliest possible opportunity;

(3) There has been a consequent failure of justice;

In this case, the first condition is satisfied. The second condition cannot be said to be satisfied because the petitioner should have raised the

objection when this Court remanded the matter to the Sub-Court. The third condition is also not satisfied in this case. Learned Counsel for the

petitioner has not been able to show that there is a failure of justice because the matter was heard by the Sub-Judge. The Supreme Court has in

Pathumma and Others Vs. Kuntalan Kutty Dead by Lrs. and Others, held that unless all the three conditions co-exist, it is not open to the appellate

or revisional court to entertain an objection as to place of suing, in that case, the objection relating to territorial jurisdiction falling u/s 21(1) C.P.C.

There is no difference in language between Section 21(1) and Section 21(2), C.P.C.

Neither the Division Bench ruling in In Re: Parthasarathi Naidu and Another, , nor the Full Bench ruling in Ramanathan Chettiar''s case (1963)1

M.L.J.46, which approved of the former is of any use to the petitioner in the present case. Both the cases dealt with the question of retrospectivity

of the provision for appeals in The Madras Civil Courts (Amendment) Act, 1956, which substituted the District Court for the High Court as the

forum of appeals in cases of suits of specified valuation. On a construction of the provisions of the Act, it was held that they were by necessary

intendment, retrospectives in their application and would apply even to suits instituted before the Act came into force. The Full Bench, while

approving of the Division Bench ruling, pointed out that the vested right of appeal was not abrogated or restricted by the Act which only altered the

forum of appeal in a specified category of cases.

The observations of the Supreme Court in Kiran Singh and Others Vs. Chaman Paswan and Others, on which learned Counsel for the

petitioner places reliances are applicable only to cases of total lack of jurisdiction. In that case, the suit was valued at Rs. 2,950 and properly laid

in the Court of the Subordinate Judge who dismissed, the same on merits. On appeal, the District Court affirmed it On further appeal to the High

Court of Patna, an objection was taken by the Stamp Reporter to the value of the suit and after enquiry, the Court determined it to be Rs. 9,980.

Accordingly, the plaintiffs paid additional court-fees. Then, they raised the contention that on the revised valuation, the appeal from the decree of

the Sub Court would lie not to the District Court but to the High Court, and that the second appeal should be treated and heard as a first appeal.

The High Court rejected that contention and held that the appeal to the District Court was competent and that its decision could be reversed only if

the appellants could establish prejudice on the merits. On the merits, it was held that no prejudice was made out by the appellants and the second

appeal was dismissed. The Supreme Court affirmed the judgment of the High Court on merits as well as on the question of jurisdiction. While

setting out the general principles of law, the Court observed that a decree passed by a Court without jurisdiction, is a nullity whether the defect of

jurisdiction is pecuniary or territorial or in respect of the subject-matter. But the Supreme Court went on to the consider the effect of Section 11 of

the Suits Valuation Act and held that a decree passed by a Court, which would have had no jurisdiction to hear a suit or appeal, but for

overvaluation or undervaluation, is not to be treated as what it would be but for the section, null and void, and that an objection to jurisdiction

based on overvaluation or undervaluation, should be dealt with under that section and not otherwise. Far from helping the petitioner, the rational of

the Supreme Court in that case goes against the contention urged by him in this case. Just like Section 11 of the Suits Valuation Act, Section 21 of

the CPC prescribes certain conditions for challenging the validity of judgments of Courts below for want of territorial and pecuniary jurisdiction.

In R. Venkataswami Naidu Vs. South India Viscose Ltd., Coimbatore, , the only other case cited by learned Counsel for the petitioner,

Ratnam J., was concerned with an order passed by a Court which had no jurisdiction at all. Even the Court which passed that order later on

upheld the objection raised by the defendant to its jurisdiction and vacated the interim-order. In fact, an application for punishing the defendant for

contempt for disobeying the interim order was also dismissed. Such orders were also affirmed by the Bombay High Court. The contention that was

put forward before the learned Judge was that the interim order passed had certain legal consequences as it would hold good until setaside and the

final order taking the view that the Court had no jurisdiction would not make the interim order non-est or void. That contention was repelled by the

learned Judge, rightly, if I may say so with respect. In that context, the learned Judge relied on the general principles laid down by the Supreme

Court in Kiran Singh and Others Vs. Chaman Paswan and Others, . In that case, there was no question of applying Section 21 of the Code of

Civil Procedure. Hence, the petitioner in this case cannot place any reliance on the judgment in that case.

Turning to the merits of the case, little could be said in favour of the petitioner. The petitioner in his deposition as R.W. 1 has admitted

categorically that he owns 4 acres 63 1/2 cents of land in Kalial village in which rubber is grown on 2 � acres of land. He admits that he planted

rubber three years before the gave deposition. A faint attempt was made by learned Counsel for the petitioner to say that the petitioner referred to

his son''s lands and not his own and that there was a wrong understanding by the lower Court of his deposition. This contention is absolutely

baseless. After referring to his rubber plantation, the petitioner has expressly spoken about his son''s land adjacent to his own. He states that his

son is also an agriculturist, and that he does not know his son''s income. Thus, there is no mistake in the understanding of the deposition of the

petitioner. In view of the clear admission of the petitioner that he has grown rubber on an extent of 21/2 acres of land, he falls outside the definition

of ''small farmer'' as found in Section 3(1) of the Tamil Nadu Act XXXI of 1976. The Court below has rightly negatived his claim for the benefits

of the said Act.

I am satisfied that no prejudice was caused to the petitioner by the matter having been disposed of by the Subordinate Judge. There has been a

fair and full hearing of the proceeding; the Court below has given its decision on merits on a consideration of the entire evidence on record, and no

injustice is shown to have resulted in its disposal of the matter.

In the result, the civil revision petition has to fail and it is dismissed with costs.