Kishori Lal vs Ishwar Dass and Others

D.B. Lal J.

These are lour regular second appeals in which a common question of law arises which relates to their maintainability before the High Court under para 32(1)(b) of the Himachal Pradesh (Courts) Order, 1948 (hereinafter to be referred as the order of 1948). In two of the second appeals 1968 R.S.A. 152 and 1969 U.S.A. 45 , the decree of the Subordinate judge has been affirmed by the District Court and as such the question is to be determined with reference to Sub-clause (ii) of para 32(1)(b). In the other two second appeals 1968 R.S.A. 104 and 1969 R.S.A. 8 , the decree of the Subordinate Judge has been varied or reversed by the District Court and as such the said question is to be determined with reference to Sub-clause (1) of para 32(1)(b). While these four regular second appeals were set down for hearing before a learned single Judge of this Court, the objection regarding their maintainability was taken by the Respondents and as the question involved was of general importance the learned single Judge made the following reference order which he referred to a larger Bench:

Whether upon the facts and circumstances of the case, the appeal is competent in view of paragraph 32(1)(b)(ii) of the Himachal Pradesh (Courts) Order, 1948." For the two regular second appeals in which the decree of the Court of Subordinate Judge was varied or reversed, the reference order, however, indicated para 32(1)(b)(i). By some clerical mistake it seems the learned Judge has mentioned para 32(1)(b)(ii) for 1969 R.S.A. 8 . Since all the four suits are admittedly land suits as defined in the Order of 1948, the second appeals would be maintainable cither under Sub-clause (i) or Sub-clause (ii) of para 32(1)(b).

In all the four suits the valuation that has been put in the plaint is below the prescribed pecuniary limit contained in Sub-clauses (i) and (ii) and, therefore, affidavits have been given by the appellants that the value of the suit is really more and crosses the pecuniary limit prescribed under the two Sub-clauses. The vexed question that has been posed for our decision is, as to whether the value of the suit can be re-assessed for purpose of second appeal under para 32(1)(b) so as to bring it within the pecuniary limit prescribed therein. The question essentially relates to the interpretation of the words "value of the suit" used in para 32(1)(b) of the Order of 1948. In short, it is to be decided, as to whether the value of the suit would be the value put in the plaint while the original jurisdiction was exercised, or that value could be enhanced by giving evidence by affidavit etc. so as to bring it within the prescribed limit to maintain second appeal before the High Court under para 32(1)(b) of the Order of 1948.

The said para 32(1)(b) may now be set out and it is in the following terms:

(1) A second appeal shall lie to the Court of the Judicial Commissioner in any of the following" cases from an appellate decree of a District Court on any ground which would be a good ground of appeal if the decree had been passed in an original suit, namely:

(a) ....

(b) in a land suit.

(i) if the value of the suit is two hundred and fifty rupees or upwards, or the decree involves directly some claim to, or question respecting, property of like value, and the decree of the District Court varies or reverses otherwise than as to costs the decree of the Court below, or (ii) if the value of the suit is one thousand rupees or upwards, or the decree of the District Court involves directly some claim to, or question respecting, property of like value.

While dealing with the value of the suit, the two Sub-clauses (i) and (ii) also employ the language "the decree involves directly some claim to, or question respecting, property of like value". This language is in parimcteria similar to the language used in unamended Article 133(1)(a)(b) of the Constitution. While dealing with that article, the Supreme Court has held in two cases: Chhitarmal Vs. Shah Pannalal Chandulal, and Bombay Gas Co. Ltd. Vs. Jagan Nath Pandurang and Others, that under Clause (a) of Article 133(1) what is decisive is the amount or value of the subject-matter in the Court of the First Instance and still in dispute in appeal to the Supreme Court; while under Clause (b) it is the amount or value of the property respecting which a claim or question is involved in the judgment sought to be appealed from. lint the property respecting which such claim or question arises must be property in addition to or other than the subject-matter of dispute. If in a proposed appeal there is no claim or question raised respecting property other than the Subject-matter, Clause (a) will apply and not Clause (b). Therefore, it would be easy to hold that the similar language used in Sub-clauses (i) and (ii) of para 32(1)(b) of the Order of 1918 would convey the same meaning and second appeal filed before the High Court would also be maintainable under the second alternative if some claim to, or question respecting, property of like value in addition to or other than the subject-matter in dispute is directly involved. Since in the present four appeals such a claim to, or question respecting, property of like value in addition or other than the subject-matter of dispute is not directly involved, it would be a futile exercise to ascertain the question as to maintainability of the appeals under the alternative condition laid down in the two Sub-clauses.

In these four appeals if the value of the suit is considered to be within the prescribed limits, with reference to the subject-matter of suits, a second appeal would be maintainable, otherwise not. For this, the respondents claim on the basis of the language used in these two Sub-clauses that they can adduce evidence so as to enhance the value of the suits in order to bring them within the pecuniary limits to facilitate second appeals in this Court.

It is abundantly clear that these four land suits related to cultivated area and the plaintiffs wanted either possession or joint-possession from the defendants. For such a category of suits, the Himachal Pradesh Court Fees Act prescribed valuation which is decidedly not the real or market value of the property. The valuation given in the plaint for purpose of jurisdiction was decidedly clone with reference to the provisions of the Suits Valuation Act. For cases of possession over agricultural land a notional value is fixed for payment of court-fee and also for jurisdiction. The value so fixed is not the real or market value of the property. To this proposition there is no dispute between the parties. In those eases where ad valorem court-feet; are paid, or in which real or market value of the properly is determined for payment of court-fee and for jurisdiction, there would be no difficulty. It would be known at once as to what is the value of the suit for purpose of second appeal. While dealing with a case where ad valorem court-fee was paid, a Division Bench of this Court in 1967 R.F.A. 12 (Municipal Committee Simla v. Gurdial Singh and Ors.) decided on 3rd August, 1972, held that the original amount settled in the plaint in a suit for rendition of account would determine the value for jurisdiction of the District judge in the matter of first appeal u/s 39 of the Punjab Courts Act, 1918. Any order of the Subordinate Judge altering that valuc as a result to accounting, although valid for fresh assessment of court-fee, would not be valid for altering the original value fixed in the plaint so as to deprive the District Judge from hearing the first appeal. This decision, therefore, deals with a suit for rendition of account and the value of suit in such a case would be the value that has been put in the plaint and such a. value cannot be altered subsequently for conferring jurisdiction upon a higher Court. The four suits, with which we are dealing, do not belong to a category where; ad valorem court-fee has been paid. Similarly, it is undisputed that in these suits real or market value of the property has not been determined. In our view, if a plaintiff sets a lower value: on a claim which he is required to value according to (he real or market value, he cannot be permitted to change that value subscquently in order to facilitate a second appeal, as that would amount to approbation and reprobation. For this proposition, support can be sought from Kunju Kesavan v. M.M. Philip and Ors. AIR 1964 S.C. 161 . Therefore, in eases falling in para 32(1)(b) if determination of real or market value of the properly has been made and the value of the suit is fixed in the plaint according!)'', the said value cannot be altered subsequently as this would amount to approbation and reprobation. Otherwise the value of the suit can be altered and fresh determination can be made with reference to evidence which may be adduced. In T.D. Gopalan Vs. Commissioner of Hindu Religious and Charitable Endowments, Madras, the learned Judges of the Supreme Court were considering a case where certificate for leave to appeal was refused under the unamended Article 133(1)(a) and (b) as the suit related to a temple and according to the High Court, the valuation of the temple could not be determined. The Supreme Court observed that the High Court should have determined the value for purpose of appeal to Supreme Court, more so when the claim of the plaintiff was that the disputed property was not a temple but his private properly. From this decision, at any rate some support can be taken to hold that in a given situation, fresh determination of the value of suit can be resorted to in order to decide about the maintainability of second appeal.

The contention of the learned Counsel for the appellants has been, that upon the language used in para 32(1)(b), the value of the suit shall be the value in relation to the suit with reference to the real or market value of the land. In this connection, reference has to be made to the following definition of "value" given in para 2(vii) of the order of 1948:

(vii) "value" in relation to a suit means the amount or value of the subject-matter of the suit.

The value of the subject-matter of the suit, contends the learned Counsel, shall not be the notional value given in the plaint. It would be the real or market value of the property in dispute. It is manifest, in the definition of ''value'', no reference whatsoever has been made to the provisions of the Court-Fees Act or the Suits Valuation Act. Therefore, whatever determination of value has been made with reference to these two Acts would not necessarily be the value of the suit for purpose of para 32(1)(b). In another Division Bench case of this Court, in 1968 R.S.A. 14 decided on 5th November, 1971, which arose directly under para 32(1)(b) of the order of 1948, the learned the then Chief Justice M. H. Beg who spoke for the Bench, made the following observation:

Section 2(vii) lays down that "''value'' in relation to a suit means the amount or value of the subject-matter of the suit". This value is, of course, not a sentimental or subjective value. Presumably, it is the market value, in terms of money, of whatever is the subject-matter of the suit. It is significant that there is no reference here to the provisions of the Suits Valuation Act or the Court Fees Act. On the other hand, the object seemed to be to give a particular definition of "value in relation to a suit" for the purpose of the order itself.

We have no hesitation to adopt this observation of the learned Chief justice and, in our opinion, the value of the suit may not merely be the value that has been given in the plaint for purpose of jurisdiction with reference to the provisions of the Suits Valuation Act or the Court Fees Act. It can also be the real or market value of the property. Their Lordships in the aforesaid Division Bench ease accepted the affidavit filed by the appellant, and held that the value of the suit was within the pecuniary limits and the second appeal lay before the High Court. In our opinion also the artificial value permitted by the Court Fees Act and the Suits Valuation Act would not govern the method of valuation to be adopted in the order set out above governing second appeals in this Court. If that was the intention, it would have been easier to mention those two Acts in the difinition of ''value'', which has not been done.

The stock argument of the learned Counsel representing the Respondents has been that the value of the suit could not be assessed in a different manner for a case of first appeal under para 31 of the order of 1948. In other words, the learned Counsel submits that the assessment to be made for the value of the suit should besimilar for para 31 and para 32 Firstly, the question that has been posed for determination before us does not relate to first appeal under para 31 and hence we are not called upon to decide as to whether the value of the suit for purpose of first appeal under para 31, would be the value put in the plaint while original jurisdiction was exercised, or would it be a re-assessed value as a result to evidence given at a subsequent stage. Secondly, there is decidedly a difference in the language used in para 31 as compared to the language used in para 32. In para 31, the language used is "suit of value", while in para 32 the language used is "value of the suit". Therefore, in para 31 the emphasis is on suit, while in para 32 the emphasis is on value. This would afford a marked difference for purpose of interpretation of the two paras. In para 31, the suit as valued before the Subordinate judge has to be reckoned for purpose of first appeal. This is so because the first appeal arises from the Court of Subordinate Judge exercising original jurisdiction. The suit of a particular value which is decidedly the value put in the plaint, determines the jurisdiction for first appeal. While dealing with a case of first appeal in a pre-emption suit, a full Bench of Punjab High Court in Gajja Singh and Others Vs. Gurdial Singh and Others, held that the value fixed in the plaint under the provisions of the Suits Valuation Act would determine the forum of first appeal before the High Court. According to their Lordships, such a value fixed in the plaint cannot be altered subsequently. Therefore, para 31 which is analogous to Section 39 of the Punjab Courts Act, 1918, refers to the value put in the plaint and this value shall determine the suit which is cognizable either by a District Judge or by the High Court. The definition of the value as given in para 2(vii) may, therefore, be construed as eliminating the real or market value for purpose of first appeal under para 31. There is a great relevancy in the argument of the learned Counsel, that para 31 refers to the question of forum of first appeal, while para 32 essentially refers to the question of right to second appeal.

In the present cases, the jurisdiction of the District Judge in first appeal has not been questioned. It would be too late in the day to question that jurisdiction now. Nor can it be stated that once the jurisdiction in first appeal has been exercised any objection can be taken as to that, as a consequence to fresh determination of valuation. Apart from this, the question is of more or less academic interest. As we have stated before, we are not dealing with a case of first appeal under para 31. For the reasons stated above, we are however confident that for second appeal under para 32(1)(b), the value of suit refers to the real or market value of the property. Such a value can be determined by production of evidence. In the present cases, affidavits have been filed. These affidavits are not controverted. As such the value now-fixed by the Court with the assistance of such affidavits would determine the jurisdiction of the High Court.

In para 32, it is to be noted that the restrictions imposed u/s 100 of the Civil P. Code for preferring a second appeal have not been provided. It is rather indicated that all those grounds can be taken in second appeal which are good grounds for the first appeal. Therefore, the legislature wanted to impose the other [restriction of the valuation of the suit. If in the opinion of the High Court the value of the suit is much more than what has been put in the plaint, the case assumes some importance and such value of the suit can be determined afresh for purpose of second appeal.

In this view of the matter, we have no hesitation in holding that in these four appeals, the value of the suit for purpose of second appeal under Sub-clause (i) or (ii) of para 32(1)(b) shall be the value given in the affidavits submitted by the appellants. As this value crosses the prescribed limit, the second appeals are entertainable and we would, therefore, answer the question referred to us in the affirmative.

We, however, leave the parties to bear their own costs in these references.

This judgment is being given in R.S.A. No. 104 of 1968 and shall govern the decision in the other R.S. As. No. 152 of 1968, 8 of 1969 and 45 of 1969. A copy of this judgment shall be kept on the record of the other connected second appeals.

Chet Ram Thakur, J.

I agree.