Mt. Jagtaram Kuer vs Mt. Munder Kuer

Wort, J.—This appeal for its success would depend upon two considerations: one that in fact there had been no valuation placed on the suit the particulars of which I shall mention in a moment, and the other is that Section 11, Suits Valuation Act, does not apply. In my judgment there is no support in this case to either of those contentions. The facts shortly were these: It was a suit brought by a step-mother against her step daughter for maintenance. The plaint was framed claiming a declaration that the plaintiff was entitled to maintenance at the rate of Rs. 25 a month, also claiming Rs. 970 for arrears and Rs. 25 damages. The action succeeded.

There was an appeal which apparently was dismissed for want of prosecution, the reason being that the appellant, who was defendant in the trial Court, failed to pay the court-fee. The decree then came up for execution. The defendant rasied an objection u/s 47, Civil P.C., based on the contention that the Munsif passing the decree had no jurisdiction. This depended in turn upon a contention that the suit was beyond his pecuniary jurisdiction.

The suit as I have said was for maintenance, and it was contended that the suit Should have been valued u/s 7, Sub-section (2), as a suit for maintenance and therefore to be valued at ten times the amount claimed to be payable for one year.

One of the difficulties which arose in this case was that the suit in the first place was in forma pauperis and therefore no valuation, so we are informed, was stated in the plaint. The learned Munsif in dealing with this objection came to the conclusion that Section 11, Suits Valuation Act, did not apply. He came to the conclusion also that the valuation of the suit placed it beyond the jurisdiction of the Munsif who tried it and therefore he dismissed the execution proceedings. Section 11, Suits Valuation Act, provides that an objection as to the valuation of the suit or appeal shall not be entertained by any appellate 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 overvalued or undervalued, and that the overvaluation or undervaluation, thereof has prejudicially affected the disposal of the suit or appeal on its merits.

Now, it is contended that if Section 11 applies to this matter the appellant mast fail. It was the contention of the learned advocate on behalf of the appellant that Section 11 did not apply and for that proposition he relied upon a case which is reported in an unofficial report, being the case of Gunga Sahai v. Sheo Lal (1894) 132 PR 1894, which held that Section 11, was limited to those cases in which the valuation depended on the discretion of the parties or the Court, and is not applicable to cases in which the valuation is fixed by rules having the force of law. In other words, where on the face of the proceedings it would appear that the Court had no jurisdiction by reason of the valuation of the suit, then the provisions of Section 11 as to taking objection at the first possible moment do not apply.

In my judgment that distinction which would appear to be established by that case is not borne out by anything contained in Section 11, Suits Valuation Act, and indeed the very case upon which reliance is placed by the learned advocate appearing for the appellant was overruled by the decision of the Lahore High Court in Sardar Khan v. Mt. Aisha Bibi AIR 1925 Lah 290. The learned Chief Justice there deals with the matter in a sentence which seems to me to conclude the matter. He states during the course of his judgment:

The language of the section is comprehensive enough to include all cases of erroneous valuation and does not suggest any distinction between cases in which the valuation depends upon rules having the force of law and those in which the valuation is determined otherwise.

This, in my judgment, was a clear case of undervaluation.

The suit being in forma pauperis the preliminary proceedings relating to the presentation of plaint, were different from those which would obtain in cases in which the plaintiff paid the court-fee. When the plaint was presented to the Court, the Court, we must assume, in the proper exercise of its jurisdiction ascertained from the allegations contained in the plaint and the nature of the suit whether it had jurisdiction or not. In this case, in my judgment, having regard to the statements which appear in the judgment of the learned District Judge in the Court below it was quite clear that it was a suit for a declaration as to the plaintiff''s right to maintenance together with a claim for arrears and therefore it should have been valued under Sub-clause (ii), Section 7, Court-fees Act; and indeed in addition to that we must also assume that by inference at any rate that the plaintiff herself vauled the suit or placed value upon her suit by presenting it to the Court of the Munsif. It makes no difference, in my judgment, that no figure was set out in the plaint which in that sense affects the valuation.

To sum up this part of my observation it seems to me quite clearly a case in which there has been undervaluation within the meaning of Section 11, Suits Valuation Act. Now, as the objection was not taken at an early stage of the proceedings it seems to me that the objection u/s 47, Civil P.C., in execution proceedings should have failed. I wish particularly to point out that the opinion of the learned District Judge as to the character of the suit does not seem to be borne out by the statements which he has made with regard to the plaint. The case was clearly a case in which there was a claim for a declaration and therefore was a clear case of undervaluation, but the objection not having been taken in the trial Court should have failed when it came before the execution Court.

For these reasons it seems to me that this appeal fails and must be dismissed, but without costs.

Mahomad Noor, J.

The question involved in this appeal is whether the decree under execution is a nullity having been passed by a Court which had no jurisdiction to do so. The suit was by the respondent for a declaration of her right to maintenance from a certain estate in possession of the appellant and also for arrears of maintenance for a certain period. The suit was brought in forma pauperis and it seems that by some inadvertence the value of the suit was not mentioned in the plaint. u/s 7, Sub-clause (2), Court-fees Act, the proper value for such a suit is ten times the amount of the annual maintenance claimed by the plaintiff.

As the plaintiff claimed a maintenance of Rs. 25 per month the value of the suit according to the express direction of law was Rupees 3,000. Then there was a prayer for a decree for maintenance at that rate which had fallen due up to the date of the suit. It is obvious that the suit was not entertainable by the Munsif, but nevertheless he proceeded with it. The plaintiff was duly declared a pauper and the suit went to trial. A decree declaring the plaintiff entitled to a maintenance of Rs. 15 per month and also to get maintenance at that rate from the date of the suit was passed.

This decree is now sought to be executed by the respondent. She was met by two objections raised on behalf of the appellant. One was that the Munsif, who passed the decree, had no jurisdiction to do so as the value of the suit under the express direction of law was more than his pecuniary jurisdiction, and the second objection was that the decree was a declaratory one and incapable of execution.

The plaintiff-respondent was bound to have recourse to a fresh suit for the realization of the amount declared payable to her by that decree. Both the objections were upheld by the learned Munsif. His attention was drawn to Section 11, Suits Valuation Act, but he held that that section did not help the decree-holder, as it was not a question of undervaluation or overvaluation, no valuation having been mentioned in the plaint itself. The decree-holder preferred an appeal to the District Judge who reversed the decision of the learned Munsif. He has held that the suit was not for a declaration of the plaintiff''s title to get a certain maintenance per month, but that it was only for arrears of maintenance for a certain period and the Munsif had jurisdiction to try the suit.

He did not discuss the application of Section 11, Suits Valuation Act. On the second point he seems to have left the question open, holding that the execution under consideration was for the amount of arrears of maintenance decreed by the Munsif. The judgment-debtor has preferred this second appeal.

As to the first point, I entirely agree with the judgment just delivered by my learned brother that the question is concluded by Section 11, Suits Valuation Act. No doubt it has been held that when the want of jurisdiction of the Court which passed a decree is apparent on the face of the record, the decree is a nullity and need not be set aside. But in my opinion, Section 11, Suits Valuation Act, is an exception to the general rule, that is to say, if there is undervaluation or overvaluation and in consequence of which a Court proceeded to try the suit without any objection being raised by the defendant, the matter is, except under certain circumstances concluded even for the purpose of appeal. Much less the question can be reopened in a collateral proceeding after the decree has been passed and has become final. The learned advocate however contended, and it seems to me to be the view taken by the learned Munsif, that in this case there was neither undervaluation nor over-valuation, but that it was a case of no valuation.

This contention cannot be upheld. When the plaintiff presented her plaint to the learned Munsif it must be taken that she put some valuation (though the exact figure cannot be said) which would make the suit cognizable by the Munsif, and we must take it that when the Munsif proceeded to try the suit he held that he had jurisdiction to proceed with the suit. He did so without any objection being raised by the defendant, the present appellant before us. In that view of the case it must be taken that the Munsif in effect decided that he had jurisdiction to try the suit. The matter cannot be reopened at this stage. The decree is not a nullity on account of want of jurisdiction and the appellant''s ground fails though for reasons other than those mentioned by the learned District Judge.

The second question, namely whether the decree as it stands is capable of execution, though decided by the learned Munsif in favour of the judgment-debtor, has not been finally decided by the learned District Judge. The decree is not before us, and it was not produced even before the learned District Judge. It cannot be laid down that a decree for further maintenance is always incapable of execution and a fresh suit is necessary. That would entirely depend upon the nature of the suit, the nature of the relief granted and the form of the decree.

The decree not being before us and the question apparently having been left open by the learned District Judge, the matter was not argued before us in detail and I do not wish to express any opinion on that part of the case. In the result I agree with the order which my learned brother has passed in this case.