Sishu Meah and others vs Ali Aptab Khan and others

Brij Narain, J.C.

The proceeding which has given rise to the present application in revision was brought in the form of a suit No. 90 of 1954 in the Court of the Subordinate Judge, Tripura, and the petitioners filed an application there for obtaining a temporary injunction order but this application was rejected. The petitioners then brought civil appeal No. 2 of 1955 in the Court of the District Judge, Tripura, but this appeal was also rejected on 24-1-1955. The petitioners have, therefore, come to this Court in revision.

The suit purported to be for confirmation of the plaintiff''s possession in respect of the disputed lands on declaration of their title. It was further prayed that the sale deed executed by Aptabaddin Mahaldar in favour of defendant 14 & certain gift deeds executed by the deceased in favour defendants 15 to 19 and 21 to 23 were void, collusive and fraudulent. An injunction was also sought for restraining defendant 2 from transferring any property on the basis of the power of attorney executed in his favour by defendants 14 and 16 and from restraining the defendants from interfering with the plaintiff''s possession until the disposal of this suit.

An interim injunction was issued by the learned Sub-Judge but later on hearing the opposite parties this order was cancelled. It has been contended on behalf of the petitioners that the defendants 14 and 16 and certain other heirs of Aptabaddin Mahaldar could legally sell only their shares out they could not sell specific plots and as specific plots have been sold by them and the purchasers are attempting to forcibly take possession, an injunction is absolutely necessary.

According to the petitioners the opposite parties should have brought a suit for partition of their plots and when specific plots had been allotted by the Court they could sell these specific plots to strangers. In any case the stranger purchasers have got absolutely no right to dig tanks and ditches in the joint property to the detriment of the petitioners.

It has been contended by the learned Advocate for the opposite parties that no injunction order could legally be issued in the present proceedings for there was no validly constituted suit before the learned Sub-Judge. Reliance has been placed on O. 39, R. 1, C. P. C, which" runs as follows:

Cases in which temporary injunction may be granted - Where, "in any suit'' it is proved by affidavit or otherwise-

(a) that any property in dispute ''in a suit'' is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors, the Court may by order-grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition, of the property as the Court thinks fit, until the disposal of the suit or until further orders.

It has been urged that the first condition for issuing a temporary injunction is that there should be a suit before a Court and in this case there was no suit in the legal sense before the learned Sub-Judge.

It appears from the plaint that the suit was valued for the purposes of jurisdiction at Rs. 5.100/- and for declaration and consequential relief at Rs. 25/- only and court-fee was paid on Rs. 25/- only. It has been urged that under S. 8, Suits Valuation Act, the suit would be deemed to be-properly instituted only when full court-foes on Rs. 5100/- were paid up. Section 8, Suits Valuation Act, runs as follows:

Where in suits other than those referred to in the Court-fees Act, 1870, S. 7, paras V, VI and IX and Para X, Cl. (d), court-fees are payable ad valorem under the Court-fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same.

On behalf of the petitioners it has been, contended that the court-fee paid on Rs. 25/- is sufficient and reliance has been placed on - ''Bnnsilal Lalchand v. Bhikubai AIR 1948 Bom 8 (A) , in which it has been laid down that the value for purposes of jurisdiction shall, under S. 8, Suits Valuation Act, be the same as that for court-fees and under S. 8 the determination of the value for court-fees decide the value for jurisdiction and not vice versa.

In AIR 1949 116 (Lahore) , also it was held that the valuation for purposes of court-fees determines the value for purposes of jurisdiction. In view of these rulings it becomes clear that the plaintiffs could not be compelled to pay court-fees on Rs. 5100/- but the fact remains that the frame of the suit is defective inasmuch as if the suit is deemed to be valued at Rs. 25/- only it should; have been filed in the proper Court i. e., the munsiff of Agartala and not the Sub-Judge, Agartala, and so there is no properly constituted suit before the learned Sub-Judge in which an injunction order could be passed.

On behalf of the opposite parties reliance has been placed on S. 11, Suits Valuation Act, which is in the following terms:

(1) Notwithstanding anything in S. 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 of 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 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 over-valued or under-valued and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.

The argument advanced by the learned Advocate for the petitioners is that even in the injunction matter the opposite parties should not be allowed to raise any objection regarding the frame of the suit in view of S. 11. Rut the provisions of S. 11 make it quite clear that it relates to cases in which there has been disposal of the suit or appeal on its merits. In the present case, the opposite parties have not yet filed their written statements and no issues were framed and so I think S. 11 will have no application to the present case.

It has been laid down in - ''Shri Sidheshwar Pandit v. Shri Harihar Pandit'', 12 Bom 155 (C), that an objection to the jurisdiction, the validity of which is patent on the face of the proceedings, Scan be taken at any stage of the proceedings and so there can be no doubt that the question whether there is or is not a properly constituted suit before the learned Sub-Judge in which a valid injunction order would be passed ought to be gone into in the present revision when it is clear on the face of it that a suit valued at Rs. 25/- only could not be legally entertained by the learned Sub-Judge and it should have been filed in the Court of the munsiff, Agartala.

In this view of the matter I think no injunction order can be issued by the Courts below or by this Court in the present proceeding and the only order which can be passed is that the present application in revision should be filed and the record should be sent back to the trial Court with the direction that the plaintiffs should be asked to suitably amend their plaint and if necessary to take it back, to present it to the proper Court and then to pray for ad interim injunction there.

The revision is decided accordingly and the temporary injunction order passed by this Court is vacated. The parties will bear their own costs in this Court.