Kamalakshi Amma vs Karthyayani Amma

K.A. Mohamed Shafi

The 1st defendant - petitioner in I.A. No. 116/99 in O.S.No.510/96 on the file of the Munsiff''s Court, Kozhikode is the revision petitioner. The I.A. was filed by the petitioner to review the judgment and decree passed in O.S.No.510/96 under Order 47 Rule 1 of C.P.C. alleging that the decree and judgment passed by the lower court is a nullity since the lower court had no pecuniary jurisdiction to entertain and try the suit. By the impugned order the lower court dismissed the petition. Hence the C.R.P. is filed before this court. The revision petitioner has contended that respondents 1 and 2 herein, the plaintiffs before the lower court had valued the suit at Rs. 1,01,500/- for the purpose of court fee and jurisdiction and since the Munsiff''s Court has got only pecuniary jurisdiction to entertain and try suits valued up to Rs. 1 lakh, the above suit is beyond the pecuniary jurisdiction of the Munsiff''s Court. It is also contended by the petitioner that even though neither the plaintiffs nor the defendants nor the court noticed this fact and judgment and decree were passed by the lower court, since the lower court had no jurisdiction to entertain and try this suit, the decree and judgment passed by the lower court in this suit being nullity, are liable to be reviewed under Order 47 Rule I of C.P.C.

In the suit the relief of partition is valued at Rs.l lakh. Over and above the alternate relief B claimed by the plaintiffs, the relief of permanent prohibitory injunction is also claimed by them. Therefore, the suit was valued at Rs.l,01,500/- by the plaintiffs which is beyond the pecuniary jurisdiction of the Munsiff''s Court. Prayer B made by the plaintiffs in the suit being only an alternative relief to prayer A made by the plaintiffs, under Sec.6(2) of the Court Fees Act no separate court fee need be paid for the alternative reliefs. But the relief of injunction claimed by the plaintiffs in the above suit for partition has to be valued separately and the plaintiffs have in fact valued the relief claimed by them separately. Therefore it is clear that the valuation in the suit is beyond the pecuniary jurisdiction of the Munsiff''s Court of Rs.l lakh. Hence the contention of respondents 1 and 2 that the above petition filed by the revision petitioner is misconceived and the suit if properly valued for the purpose of court fee and jurisdiction will be well within the pecuniary jurisdiction of Rs. 1 lakh, is not sustainable.

The counsel for respondents 1 and 2 submitted that even if the suit was beyond the pecuniary jurisdiction of the Munsiff''s Court, the petitioner has not raised such a contention either during the pendency of the suit till the suit was disposed of by the trial court or in the several proceedings taken by her with regard to the subject matter in the suit before this court and the lower appellate court. He has further submitted that absolutely no contention is raised by the petitioner with regard to the pecuniary jurisdiction of the Munsiff''s Court either in the written statement or any issue regarding jurisdiction was raised or any evidence adduced by the petitioner or any argument advanced before the lower court regarding the maintainability of the suit and the pecuniary jurisdiction of the lower court to entertain and try the suit. On the other hand, petitioner has filed O.P.10675/98 before this court for a direction to dispose of the suit and this court allowed the O.P., issuing the direction. Even though the petitioner challenged the judgment in the O.P. in W.A.1818/98, a Division Bench of this court confirmed the judgment passed by this court in O.P.10675/98 and directed the trial court to dispose of the suit within three months. Thereafter the lower court tried the suit and passed the decree and judgment on 22-12-1998. Subsequently the petitioner filed I.A.No.537/99 for injunction regarding management of the school sought to be partitioned in the suit etc. till the filing of the appeal against the decree and judgment passed by the trial court, which was allowed. Accordingly, the petitioner filed A.S.76/99 before the District Court, Kozhikode challenging the decree and judgment passed by the trial court.

The lower appellate court passed conditional order staying the execution of the decree. The petitioner challenged that order before this court in revision and this court made the stay order passed by the lower appellate court absolute in the revision petition. Therefore, the counsel for respondents 1 and 2 submitted that even if the trial court lacked pecuniary jurisdiction in the suit, the petitioner has waived her contention with regard to the pecuniary jurisdiction of the trial court and participated in the trial and all the proceedings arising out of the suit and therefore, the petitioner is precluded from challenging the pecuniary jurisdiction of the trial court subsequently.

In the decision in The Bahrein Petroleum Co. Ltd. Vs. P.J. Pappu and Another, the Supreme Court considered the territorial jurisdiction of the court under Sees. 20 and 21 of the C.P.C., 1908 and held that the defendant may waive the objection also the place of suing. In that judgment a three Judges Bench of the Supreme Court has observed as follows:

(2) The defendants neither resided nor carried on business, nor did any part of the cause of action arise within the local limits of the jurisdiction of the Cochin Court. The Cochin Court had, therefore, no territorial jurisdiction to try the suit under Sec.20 of the Code of Civil Procedure, 1908.

(3) Counsel for the plaintiff-respondent submitted that it was open to the defendants to waive this objection, and if they did so, they could not subsequently take the objection. This submission is well founded. As a general rule, neither consent nor waiver nor acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit. But Sec.21 of the Code provides an exception, and a defect as to the place of suing, that is to say, the local venue for suits cognisable by the courts under the Code may be waived under this section. The waiver under Sec.21 is limited to objections in the appellate and revisional courts. But Sec.21 is a statutory recognition of the principle that the defect as to the place of suing under Secs.15 to 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it.

The Supreme Court has further observed as follows:

If the defendant allows the trial court to proceed to judgment without raising the objection as to the place of suing and takes the chance of a verdict in his favor, he clearly waives the objection, and will not be subsequently permitted to raise it. It is even possible to say that long and continued participation by the defendant in the proceedings without any protest may, in an appropriate case, amount to a waiver of the objection.

Though the above decision is rendered considering Sec.21 of the C.P.C. as it stood in the Code of 1908 before amendment in 1976 and considered only territorial jurisdiction of the court, since before amendment in 1976 Sec.21 of the C.P;C. was concerned with the objection with regard to the territorial jurisdiction of the court alone, subsequent to the amendment in 1976, Sec.21 takes in territorial as well as pecuniary jurisdiction. Therefore, the principle laid down in the above judgment by the Supreme Court will apply to the objection regarding pecuniary jurisdiction of the courts also.

The argument advanced by the counsel for the petitioner that there is no question of waiver in this case since the petitioner was not aware of the right since the question of pecuniary jurisdiction escaped the notice of the petitioner, the respondents and the court, cannot be accepted since the valuation of the suit at Rs.1,01,500/- is clearly shown in the plaint by the respondents.

In this case apart from the contention that the trial court has no pecuniary jurisdiction to entertain and try the suit, the petitioner has no case that any prejudice is caused to her by the decree passed against her in the above suit. Therefore, the respondents have contended that the decree passed by the trial court cannot be assailed under Sec.11 of the Suits Valuation Act or under Sec.21 of the C.P.C. In support of this contention the counsel for the respondents relied upon the decision in Kiran Singh and Others Vs. Chaman Paswan and Others, wherein the Supreme Court has observed as follows:

It is that a decree passed by a court, which would have had no jurisdiction to hear a suit or appeal but for over-valuation 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 under-valuation, should be dealt with under that section and not otherwise.

The policy underlying sections 21 and 99 C.P.C. 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. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Sec 11 of the Suits Valuation Act.

Therefore, the contention of the petitioner in this case that the decree passed by the trial court which had no pecuniary jurisdiction is a nullity cannot be entertained since the petitioner has no case that any prejudice is caused to her on merits or there is any failure of justice in this case.

In the decision in Mathew v. Cicily (1981 KLT 713) a single Judge of this court has observed that the objection about the pecuniary jurisdiction should have been raised before the trial court at the appropriate stage. Not having raised it then, it is not permissible to the respondents to raise the same before the appellate court at the stage at which it is raised.

The counsel for the petitioner submitted that the bar under Sec,21 (2) of the C.P.C. against raising the question of pecuniary jurisdiction in appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity, is not applicable to the facts of this case since the review application is filed before the trial court itself and no question of pecuniary jurisdiction is raised before the appellate or revisional court as contemplated under Sec.21 (2) of the C.P.C.

The counsel for the respondents submitted that the petitioner has clearly stated in the affidavit filed in support of I.A.Nos.537/99 & 678/99 before the trial court that the petitioner is preferring an appeal against the decree and judgment passed by the court and in fact, appeal is preferred before the appellate court. Therefore, review under Order 47 Rule 1 of the C.P.C. is competent, since under Order 47 Rule 1 of C.P.C. review application can be filed only against the decree and order from which an appeal is allowed but from which no appeal has been preferred. Therefore, the above revision is not sustainable on that ground also.

The contention of the petitioner that the defect regarding pecuniary jurisdiction was noticed only when the petitioner was taking steps to prefer appeal after the passing of the decree and the review application was filed before filing the appeal and therefore, the review application is sustainable, cannot be accepted since if appeal is preferred against the order or the decree, the jurisdiction of the trial court to review under Order 47 Rule 1 of the C.P.C. cannot be invoked. Therefore, it is clear that the above review application filed by the petitioner to review the decree and judgment passed by the lower court is not sustainable under law and the lower court is perfectly justified in dismissing the application.

Hence the impugned order passed by the lower court is confirmed and this revision petition is dismissed.