PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
FRIDAY, THE 9TH DAY OF MARCH 2012/19TH PHALGUNA 1933
RSA.No. 1421 of 2011 ( )
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AS.131/2010 of PRINCIPAL SUB COURT,ERNAKULAM
OS.318/2008 of PRL.MUNSIFF COURT,ERNAKULAM
APPELLANT(S)/SAPPELLANT/DEFENDANT:
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MERCY JOSEPH @ MARY JOSEPH AGED 63,W/O.LATE E.P.JOSEPH,PROPRIETRIX
CULCUTTA TRADING COMPANY, RESIDING AT ELAMKUNNAPUZHA HOUSE,T.D.ROAD ERNAKULAM
DISTRICT.
BY ADVS. SRI.T.KRISHNAN UNNI (SR.) SRI.VARGHESE C.KURIAKOSE
SRI.PRAVEEN K. JOY SRI.T.A.ABDUL RASHEED SMT.RENJINI RAJENDRAN
RESPONDENT(S)/RESPONDENT/PLAINTIFF:
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M.A.DEVASSY AGED 61,S/O.LATE
IYPE,MOONJELI HOUSE PUTHENPALLY,VARAPPUZHA PO,VARAPPUZHA VILLAGE PARAVOOR
TALUK,ERNAKULAM DISTRICT.
ADV. SRI.V.PHILIP MATHEW (CAVEATOR) BY ADV.
SRI.GIBI.C.GEORGE
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
09-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Heard. Admitted on the following substantial questions of law:
i. when
it is declared by the Apex Court through the decision reported in
Sathidevi v.
Prasanna and another (2010 (2) KLT 642)
that in a suit for cancellation of a
document falling under
Sec.40 of the Kerala Court Fees and Suits Valuation Act,
1959
(for short, "the Act") value shown in the document is the value
to be taken for the purpose of computing court fee, jurisdiction and suit
valuation, is the trial court and lower appellate court justified in accepting
the summary valuation of ₹15,000/- estimated by the respondent/plaintiff
through the market value principle of valuation as against the document value
of ₹4,55,000/- - rendering the findings on valuation illegal and incorrect? ii.
What will be the effect of a finding rendered by a court of law which had
apparently no pecuniary jurisdiction and which court notwithstanding challenge
to jurisdiction and valuation proceeded with the suit and passed positive
decree and what will be the effect of a concurring appellate decision when
prior to the appellate judgment, the Apex Court has declared the law on the
point correctly?
2. The above questions arise in an appeal brought from
concurrent finding and verdict in O.S.No.318 of 2008 of the court of learned
Principal Munsiff, Ernakulam and A.S.No.131 of 2010 of the court of learned
Principal Sub Judge, Ernakulam.
3.
Respondent/plaintiff filed that suit to set aside Ext.B7, sale deed No.2946 of
2005 (a copy of which is marked as Ext.A3) and for a decree for prohibitory injunction
against trespass into the suit property. Respondent claimed that he is the
owner in possession of 14.16 Ares in survey No.174/7-A2 and 4.21 Ares in survey
No.174/7-A1 as per sale deed No.2073 of 1978 ( Ext.A1). The suit property
excludes 3.88 Ares respondent had sold as per document No.2072 of 2000
(Ext.A2). Appellant is the sister of respondent. Respondent and the late
husband of appellant were engaged in joint business. The husband of appellant
was keeping the document of title of the respondent. Respondent learnt that
after the death of her husband, appellant fraudulently created document No.2946
of 2005 (its copy is Ext.A3 and the original is Ext.B7) as if respondent
transferred the suit property to the appellant. Respondent asserted that he has
not executed any such document in favour of the appellant, the document is the
result of forgery, that he continued to be in possession of the suit property
and hence prayed for the reliefs first above mentioned.
4. Appellant
contended that she purchased the suit property as per Ext.B7, assignment deed
No.2946 of 2005 executed by the respondent for consideration and is in
possession of the said property since the date of assignment. She denied the
allegation that the document was forged. She also raised a contention that
"further, the suit is not properly valued and sufficient court fee is not
paid. "
5. Trial court framed issue among others,
"Whether the suit
is properly valued?"
6. Though, a contention regarding valuation of the
suit was raised in the written statement as extracted above, it is not disputed
before me that the question was not raised at any time before the trial court
started recording of the evidence though the trial court had appointed an
Advocate Commissioner who inspected the property and submitted a report that
the suit property is agricultural land. Parties adduced evidence on the issues.
Issue regarding valuation of the suit was taken up along with other issues
while deciding the suit. Trial court observed that the respondent/plaintiff has
paid court fee under Sec.40 of the Act, that though the said provision does not
directly refer to Sec.7 of the said Act, the market value has to be assessed
under Sec.7(2) of the Act. Trial court was of the view that valuation made and
court fee paid by the respondent are correct. The issue was answered
accordingly. The issue whether assignment deed No.2946 of 2005 (Ext.B7) was
liable to be set aside was answered in favour of the respondent. Accordingly, a
decree was granted in favour of the respondent as prayed for.
7. Appellant
challenged that judgment and decree in the first appellate court in A.S.No.131
of 2010. There also correctness of the finding regarding valuation of the suit
and payment of court fee was raised along with other questions. First appellate
court concurred with the finding of the trial court as regards valuation of the
suit and payment of court fee. First appellate court also concurred with the
finding of the trial court that Ext.B7, assignment deed is the result of
forgery. Judgment and decree of the trial court were confirmed. Hence the
Second Appeal where the above substantial questions of law are framed.
8. Learned Senior
Advocate for the appellant has contended that finding of the trial and first
appellate courts as to valuation of the suit and payment of court fee are not
correct. According to the learned Senior Advocate, since the main prayer is to
set aside Ext.B7, sale deed No.2946 of 2005, court fee is to be paid under
Sec.40 of the Act. It is contended that under Sec.40 of the Act what is
relevant is the value of subject matter of the suit and such value shall be
deemed to be, if the whole document is sought to be cancelled, the amount or
value of property for which the document was executed. According to the learned
Senior Advocate, in view of the decision in Sathidevi v. Prasanna and another
respondent was liable to value the suit based on the sale consideration
mentioned in Ext.B7 (₹4,50,000/-) and at any rate, assessment of market value
under Sec.7(2) of the Act is wrong in so far as what is required to be decided
is the value of subject matter referred above and not the market value as
referred to in Sec.7 of the Act. It is also pointed out by the learned Senior
Advocate that if the suit is valued in accordance with the direction in
Sathidevi v. Prasanna and another, it follows that court of learned Munsiff had
no pecuniary jurisdiction to entertain the suit since the sale consideration
mentioned in Ext.B7 exceeded its pecuniary limit of jurisdiction. It is
contended that the trial court therefore, lacked pecuniary jurisdiction to
entertain the suit itself.
9. Learned
counsel for the respondent contended that the bald plea raised in the written
statement as to improper valuation of the suit and payment of court fee did not
even require an issue to be raised in so far as material particulars which were
required to be stated are not pleaded. It is contended that even if an issue
regarding valuation of the suit was framed on the plea raised by the appellant,
it was obligatory for the appellant to alert the trial court of that 'question'
before recording of evidence commenced and that having not been done but, with
eyes wide open appellant participated in the trial and adduced evidence, it
must be taken that the plea regarding valuation of the suit and consequent
pecuniary limit of jurisdiction was waived by the appellant. It is also
contended by the learned counsel that after recording of evidence commenced the
trial court could not have entered a decision on the correctness of court fee
or valuation in view of Sec.12(2) of the Act. A further argument learned
counsel has advanced is that assuming that it was open to the trial court to
decide that issue along with other issues, appellant in the absence of any
consequent failure of justice was not entitled to challenge pecuniary
jurisdiction of the trial court in the appeal and hence the first appellate
court was not required to decide correctness of finding on issue No.(i) entered
by the trial court. It is contended with the aid of various authorities that in
the circumstances no substantial question of law as framed by this Court arises
for a decision and at any rate, it should yield to Sub-sec.(2) of Sec.21 of the
Code of Civil Procedure (for short, "the Code") since in the absence
of consequent failure of justice, the appellate court is not required to
entertain a plea regarding absence of pecuniary jurisdiction.
10. On the issue
whether assignment deed No.2946 of 2005 (Ext.A3 is the copy and Ext.B7 is the
original) is executed by the respondent or not, trial and appellate courts
found that it is not a document executed by the respondent. It is seen that
though respondent produced Ext.A3, being a copy of that assignment deed and
there was an application filed by the respondent to direct the appellant
produce the original and an order was passed on that application directing the
appellant to produce the original deed, neither was the original produced, nor
an affidavit filed at the appropriate time. Later, respondent filed application
to strike off the pleadings of appellant consequent to her failure to produce
the original of Ext.A3 as per order on I.A. No.2353 of 2008. Much later, on
06.11.2008 appellant produced Ext.B7, original of the impugned assignment deed.
11. That document
was sent to the expert for opinion along with the admitted signature of the
appellant. PW2, the expert who examined the disputed signature and thumb
impression in Ext.B7 with the admitted thumb impression and signature of the
respondent came to the conclusion that the disputed signature and thumb
impression in Ext.B7 are not that of the respondent. It also came out in
evidence that based on the allegation of forgery of Ext.B7, PW3, the Sub
Inspector registered a case against the appellant. Trial court observed that
while in Ext.B7, the impugned assignment deed, sale consideration is stated as ₹4,50,000/- allegedly passed on to the respondent at the time of execution of
the assignment deed (as Ext.B7 would say) appellant, when examined as DW1
stated in her proof affidavit that ₹6,00,000/- was paid as consideration. In
cross- examination she stated that ₹80,000/- was paid at the first instance (by
drawing self cheques) and about 1-1 = weeks later, a further sum of ₹5,20,000/- was paid. Though, appellant produced Ext.B8, pass book to show that she had
drawn such amount from her account, trial and first appellate courts found that Ext.B8 would not support that case of appellant. Thus, there was overwhelming
evidence before the trial and first appellate courts to conclude that Ext.B7 is
the result of forgery. So far as that finding is concerned, no substantial
question of law is involved and has not been framed as well in this Second
Appeal.
12. I am to
answer the substantial questions of law framed above. That relates to the
proper valuation of the suit and pecuniary jurisdiction of the trial court to
entertain the suit. In the written statement, in paragraph 10, appellant made a
bald plea that valuation of the suit and payment of court fee are not correct
and for the said reason alone, suit is liable to be dismissed. In this
connection, reference can be made to Order VI, Rule 2 of the Code. The said provision
says that every pleading shall contain "a statement in a concise form of
the material facts on which the party pleading relies for his claim or
defence" as the case may be. Hence if appellant had a contention that
valuation of the suit is not correct, it was required of her to state the
material facts on which that defence is set up. Unfortunately, no such material
facts are pleaded by the appellant. In fact, on a bald plea as above stated it
was not necessary for the trial court to frame an issue whether valuation of
the suit is correct or not. But trial court has framed that issue and has
answered that question.
13. Rule 11 of
Order VII of the Code enables the court of the first instance to reject a
plaint if it is found on a reading in the averments in the plaint that the
plaint is under valued and in spite of direction plaintiff does not amend the
plaint suitably. That course was not adopted here. Under Sec.12(2) of the Act,
any defendant may by his written statement filed before the first hearing of
the suit or before the evidence is recorded on the merits of the claim but
subject to Sub-sec.(3), "not later, plead that the subject matter of the
suit has not been properly valued or that the fee paid not is not
sufficient." The said Sub-section further states that all
"questions" arising on such pleas shall be heard and decided before
the evidence is recorded affecting such defendant, on the merit of the claim.
If the court decides that the subject matter of the suit has not been properly
valued or that the fee paid is not sufficient, the court shall fix a date
before which the plaint shall be amended in accordance with the court's
decision and the deficit fee shall be paid. If the plaint is not amended or if
the deficit fee is not paid within the time allowed, the plaint shall be
rejected and the court shall pass such order as it deems just regarding costs
of the suit. Sub-sec.(3) deals with a defendant who is added after issues are
framed on the merits of the claim and says that "if the court so
permits" such defendant may plead that the subject matter of the suit has
not been properly valued or that the fee paid is not sufficient. Clause (a) of
Sub-sec.(4) of the said provision says that whenever a case comes up before a
court of appeal, "it shall be lawful for the court, either of its own
motion or on the application of any of the parties to consider the correctness
of the order passed by the lower court affecting the fee payable on the plaint
or in any other proceedings in the lower court and determine the proper fee
payable thereon." Clause (b) of Sub-sec.(4) says that it is within the
power of the appellate court if it decides that the fee paid in the lower court
is not sufficient, to direct the party liable to pay such deficit fee within
such time as may be fixed by it. Sub-sec.(5) of Sec.12 of the Act makes it
abundantly clear that "all questions as to value for the purpose of
determining the jurisdiction of courts arising on the written statement of a
defendant shall be heard and decided before evidence is recorded affecting such
defendant, on the merits of the claim".
14. Thus, as per
the scheme of Sec.12 of the Act, a defendant who proposes to challenge
correctness of court fee paid or valuation of the suit is required to plead in
his written statement before the first hearing of the suit or before evidence
is recorded on the merit of the claim and, he shall not later plead that the
subject matter of the suit has not been properly valued or that the fee paid is
not sufficient.
15. The
expression 'pleadings' is defined in Rule 1 of Order VI of the Code as meaning
'plaint or written statement'. But it is relevant to note that the phraseology
used in Sub-sec.(2) of Sec.12 of the Act is not "pleading" but
"plead". The expression "plead" is defined in Black's Law
Dictionary as meaning, "to make, deliver or file any pleadings; to conduct
the pleadings in a case. To interpose any pleading in a civil action. More
particularly to deliver in a formal manner the defendant's answer to the
plaintiff's declaration, complaint or to the indictment, as the case may
be". P.Ramanatha Aiyyar, in Advanced Law Lexicon gives the expression
"plead" the following meaning - "address court as advocate or
party; maintain a cause in court and allege as a plea in proceedings in
court".
16. When
Sub-sec.(2) of Sec.12 uses the expression "plead", what is referred
to is not merely pleading in the written statement but it includes the address
in court as advocate or party. Therefore, it is clear from Sec.12 of the Act
that it is not sufficient that a party raised a plea in the written statement
that the suit is not properly valued or that court fee paid is not proper but,
he has to alert the court before recording of evidence commences about the
question raised in the written statement and invite a decision on that
question. That provision is made consciously by the legislature in Sec.12(2) of
the Act so that, a contention regarding insufficiency of court fee or, under
valuation of the suit is not raised after recording of evidence commenced, the
consequence of which is that if the plea is accepted, trial court which has
commenced recording of evidence may have to hold that it has no pecuniary
jurisdiction to entertain the suit and order that the plaint be returned for
presentation in the proper court. Consequence of such return of plaint is to
wash off the evidence that has already been recorded. To prevent such a
situation Sec.12(2) of the Act provides that the defendant has to
"plead" before recording of evidence commences that court fee paid is
either not proper or that the suit is under valued, etc. The court also has the
duty to decide such questions before recording of evidence commences.
17. This question
was considered by various Benches of this Court. One of the those decisions is
Janaki Amma v. Krishnan (1978 KLT 463)
where learned Single Judge stated the
various stages at which the trial court could consider a plea regarding
insufficiency of court fee or under-valuation of the suit. It is stated that
the court can consider the question before ordering registration of the plaint
based on the plaint averments and if the defendant raises the question, under
Sec.12(2) of the Act. When a defendant is added after framing of the issues, he
can under Sub-sec.(3) of Sec.12 of the Act with the permission of the court
raise the question. When a party becomes liable to pay additional court fee
(under Sec.13 of the Act) the court can determine and levy additional court
fee. Lastly, the question can be considered under Sec.18(1) of the Act when the
Court Fee Examiner deputed by the High Court gives a report regarding
insufficiency of court fee. Learned Judge while deciding so, relied on the Full
Bench decision of the Andhra Pradesh High Court in
C.C.Reddy v. K.C.Reddy (ILR
1969 Andhra 1042).
There, it was held that where the question of valuation
affected jurisdiction of the court, it must be decided before the hearing of
the suit. The Andhra Pradesh High Court referred to Sec.11(4) of the Andhra
Pradesh Court Fees Act (corresponding to Sec.12(5) of the Act) and held that
all questions as to value for determining jurisdiction of courts arising from
the written statement of the defendant shall be heard and decided before
evidence is recorded affecting such defendant on the merit of the claim.
Referring to the said decision of the Full Bench of the Andhra Pradesh High
Court, it is held in paragraph 11 of the decision in
Sumitha v. Kamala Bair
& others (ILR 1979 (2) Kerala 124)
that it meant that the court has no
jurisdiction to take up the question of deficiency of court fee or improper
valuation after the case enters the stage of recording of evidence.
18. Janaki Amma
v. Krishnan and Sumitha v. Kamala Bair & others were followed in
Mathew v.
Cicily (1981 KLT 713).
Learned Judge considered whether the appellate court has
jurisdiction to decide sufficiency of court fee at any stage of the appeal.
Learned Judge held that the appellate court can consider sufficiency of court
fee under Sec.12(4) of the Act which states that the appellate court may either
of its own motion or on the application of either of the parties decide
"the correctness of any order passed by the trial court affecting the fee
payable on the plaint". Learned Judge was of the view that court of appeal
is to consider an order passed by the trial court (obviously under Sec.12(2) of
the Act). In that case there was no order passed by the trial court affecting
the fee payable on the plaint (under Sec.12(2) of the Act). Learned Judge held
that in that situation Sec.12(4) of the Act does not allow the appellate court
to consider question of sufficiency of court fee in the appeal.
19. The above
decisions were considered by a Division Bench in
We- Build Pvt. Ltd. v.
C.Kamaleswaran (1981 KLT 773).
That was a suit for settlement of accounts,
plaintiff estimating valuation of the suit at ₹1,25,000/- and paying court fee
accordingly. 1st defendant contended that the suit is not properly valued and
an issue was raised regarding proper court fee payable. But, that issue was not
decided under Sec.12(2) of the Act as neither party alerted the court about the
same. Trial court proceeded with the trial of the suit. Evidence was closed and
the case was posted for hearing. At that stage, defendants pointed out that the
issue regarding court fee was to be decided preliminarily. Plaintiff filed an
application to delete the issue regarding court fee contending that the said
question ought to have been decided before recording of evidence commenced.
Trial court allowed that application and deleted the issue regarding court fee.
That order was challenged in this Court. The Division Bench referred to the
decision of the Supreme Court in
Rathnavarmarajat v. Vimla (AIR 1961 SC 1299)
which concerned the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (where
similar provision as in Sec.12 of the Act is available). In paragraph 7, the
Division Bench referred to the decision of the Supreme Court and pointed out
that Sec.12(2) only enables the defendants to raise a contention as to the
proper court fee payable in a plaint and to assist the court in arriving at a
just decision on that question. The Division Bench pointed out that if
challenge is to insufficiency of court fee, it does not even require an issue
to be raised going by Order XIV, Rule1(2) of the Code. For, under Order XIV,
Rule 1(2) of the Code 'material propositions' are those propositions of law or
fact which a plaintiff must allege in order to show a right to sue or a
defendant must allege in order to constitute his defence. The Division Bench
observed, taking a que from the decision in Sri Rathnavarmarajat v. Smt. Vimla
that the question regarding court fee (unless it relates to improper valuation
affecting pecuniary jurisdiction of the court) is a matter between the
plaintiff and the State and not a matter which the defendant could set up in
defence in the suit and hence such a question is not to be raised as an issue.
It is relevant to note that Sec.12(2) of the Act does not refer to any
"issue" but only says that all "questions" regarding court
fee and suit valuation are to be decided in the manner stated therein. May be,
the decision of the Division Bench referred to above will not be an answer to
the question whether, when a plea of undervaluation and consequent lack of
pecuniary jurisdiction is raised, an issue is to be framed. May be, it could be
contended that such a plea is a defence available to the defendant to the
action of the plaintiff and hence it is a material proposition of fact arising
for decision in the suit and hence an issue, if it relates to under valuation
and pecuniary jurisdiction is required to be raised. In paragraph 8, the
Division Bench held that the provision (of Sec.12 of the Act) make it clear
that it is peremptory that the court hears and decides the question of improper
valuation of the suit and/or of insufficiency of court fee paid on the plaint
before recording of evidence affecting the defendant on the merits of the claim
and that after the suit has entered into the stage of recording of evidence
affecting the defendant on the merit of the claim the court cannot take up the
said question.
20. A latter
Division Bench of this Court in
P.P.S.Pillai v. Catholic Syrian Bank (2000 (3)
KLT 629)
referred to the decisions in Sumithra v. Kamala Bair & others and
Mathew v. Cicily and the Division Bench decision in We-Build Pvt. Ltd.
v.C.Kamaleswaran and held that the decision of the Division Bench in We-Build
Pvt. Ltd. v.C.Kamaleswaran is no authority for the proposition that if under
valuation of the suit by a plaintiff has escaped notice of the court at the
stage referred to in Sec.12(2) of the Act, the court is helpless and it is
beyond its jurisdiction to decide that question even after recording of the
evidence has commenced. The Division Bench held that the decision in We- Build
Pvt. Ltd. v.C.Kamaleswaran is not an authority for the proposition that after
the stage referred in Sec.12(2) of the Act is over, the court and at any rate,
the appellate court is powerless to decide the question.
21. But, it is
relevant to note that certain findings entered by learned Single Judge in
Sumithra v. Kamala Bair & others and the Division Bench in We-Build Pvt. Ltd.
v.C.Kamaleswaran were not brought to the notice of the Division Bench while
deciding P.P.S.Pillai v. Catholic Syrian Bank. I may extract the above findings
in the above said two decisions as under: Sumithra v. Kamala Bair & others
- paragraph 11 -
".......... That means that the court has no jurisdiction
to take up the question after the case enters the stage of recording evidence.
The position is the same under the Kerala Act also and that is so in view of
section 12(5) of the Act. As stated in the beginning of this judgment, the case
has not only entered the stage of recording evidence; but evidence has been
closed and arguments are over. At this stage the lower court is not competent
and has no jurisdiction to reassess the market value of properties for the
purpose of either levy of additional court fee or determining the question
whether the suit is outside its pecuniary jurisdiction."
".......... These provisions make it
clear that it is peremptory that the court hears and decides the questions of
improper valuation of the suit and/or insufficiency of the court fee paid on
the plaint before recording of evidence affecting the defendant on the merits
of the claim, and that after the suit has entered the stage of recording of
evidence affecting the defendant on the merits of the claim, the court cannot
take up the said questions."
22. As against the above, in P.P.S.Pillai v.
Catholic Syrian Bank the Division Bench, while referring to the above decisions
held in paragraph 6
"......... With respect, we do not consider
We-Build
Pvt. Ltd. v. C.Kamaleswaran (1981 K.L.T. 773)
as authority for the position
that once the issue relating to the valuation of the suit is not answered by
the trial court preliminarily, it is bound to ignore that issue or not to
answer that issue at all. The right given to the defendant under S.12(5) of the
Act to insist on the issue being heard before evidence is recorded affecting
him does not enable a plaintiff who has under valued his suit to contend that
once the under valuation has escaped the notice of the court initially, the
court cannot thereafter find that the suit is under valued".
23. I do find a
direct conflict in the two Division Bench decisions as to the jurisdiction of
the court of first instance to decide question of sufficiency of court fee or
proper valuation of suit after recording of the evidence has commenced. On this
question, I sought the assistance of learned Senior Advocate, Sri
S.V.Balakrishna Iyer. Learned Senior Advocate pointed out the following
decisions.
24. The Supreme
Court in
Central Board D.B.Community v. State of Maharashtra (2005 (1) T 486)
has held that if a Single Bench doubts the decision of a Larger Bench, normally
it has to follow that decision or if it doubts the decision of the Larger
Bench, the course open to the Single Bench is to request the Chief Justice to
refer the case to a Larger Bench. In
Siddharam Satlingappa Mhetre v. State of
Maharashtra and others ((2011) 1 SCC 694)
the Supreme Court says (this position
is stated by the Full Bench of this Court also in
Raman Gopi v. Kunju Raman
Uthaman (2011 (4) KLT 458))
that if a Bench of co-equal strength doubts
correctness of a decision of a earlier Bench of the same strength the proper
course is to request the Chief Justice to refer the dispute to a Larger Bench.
Learned Senior Advocate is of the opinion that if this Court finds a conflict
of the decisions in We-Build Pvt. Ltd. v.C.Kamaleswaran and P.P.S.Pillai v.
Catholic Syrian Bank, proper course is to request the Chief Justice to refer
the matter to a Larger Bench if that question is necessary to be resolved to
decide this appeal.
25. But on the
facts and circumstances of this case I do not think it necessary for me to
adopt the above course since the questions raised in this Second Appeal could
be decided de hors the above said question.
26. I proceed,
for the time being that it is within the power of trial court to decide the
sufficiency of court fee or correctness of the valuation of suit even if the
stage referred to in Sec.12(2) of the Act and at any rate, it is within the
power of the appellate court to consider the correctness of that finding
notwithstanding that the trial court did not decide the question before
recording of evidence commenced. Though going by Sec.12(4) of the Act power of
the appellate court is to decide correctness of an order passed by the trial
court (obviously under Sec.12(2) of the Act before recording of the evidence
commenced) and that too, limited to directing the party liable to pay deficit
court fee to pay such court fee (and not regarding correctness of decision of
trial court regarding valuation of the suit which may affect the pecuniary
jurisdiction of the trial court). Learned Senior Advocate for appellant has
contended that if not under Sec.12(4) of the Act it is within the right of
appellant to challenge correctness of the finding of trial court on issue
No.(i) under Sec.105 of the Code and Sec.21(2) of the Code also enables the
appellant to raise the question.
27. Assuming so,
question is whether this Court can now find that trial court did not have
pecuniary jurisdiction to entertain the suit in view of Sec.21(2) of the Code?
28. The entire thrust of argument of appellant as to improper valuation of the
suit is based on the decision in Sathidevi v. Prasanna and another where, it is
held that while seeking to set aside a document, court fee is payable on the
value of property referred to in the document as sale consideration. Trial
court pronounced judgment in the case including its finding on issue No.(i)
regarding valuation of the suit on 28.02.2009 while the first appellate court
pronounced its judgment on 16.11.2010. Courts below referred to the decision of
this Court in
Pachayammal v. Dwaraswamy Pillai (2006 (3) KLT 527)
to say that
the value mentioned in the impugned document is not the criteria for deciding
valuation of the suit but it is the market value of property. The Supreme Court
decided Sathidevi v. Prasanna and another on 07.05.2010 (ie. before the first
appellate court pronounced the judgment on 16.11.2010). The question as to
valuation has to be decided as on the date of institution of the suit. As on
the day the suit was instituted and trial court pronounced judgment on
28.02.2009, courts below were bound to follow the decision of this Court in
Pachayammal v. Dwaraswamy Pillai. I stated that based on the report of the
Advocate Commissioner trial court found that the suit property is agricultural
land and that market value of the property is to be assessed under Sec.7(2) of
the Act. It is also relevant to note that though respondent prayed that Ext.B7,
assignment deed No.2946 of 2005 be set aside and he be granted a decree for
prohibitory injunction, respondent had no case that he is a party to that
document. He pleaded that the document is the result of forgery. Courts below
on evidence accepted that plea. As respondent is not a party to Ext.B7, assignment
deed and it is the result of forgery, it was not even necessary for the
respondent to get Ext.B7, assignment deed set aside. He could have asked for a
declaration that Ext.B7, assignment deed is not executed by him, it is the
result of forgery and hence not binding on him or the suit property. In that
case court fee was payable on the market value of the property under Sec.25(d)
of the Act. Then, market value had to be assessed under Sec.7 of the Act.
29. Now the
question is whether appellant could be permitted to urge that question in this
appeal.
Sec.21(2) of the Code says:
"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."
30. Even if appellant has raised
a plea in the written statement at the appropriate stage regarding the proper
valuation of the suit and trial court was competent and entitled to decide that
question even after the stage referred to in Sec.12(2) of the Act, the
appellate court could entertain that plea affecting the pecuniary jurisdiction
of the trial court if there is a consequent failure of justice from the
decision of the trial court as to its pecuniary jurisdiction based on the
valuation of suit. One of the earliest of the decisions on the point (even
before the 1976 amendment came to the Code) is
Kumaran Nambiar v. Ramunni
((1938) 1 MLJ 193).
The Madras High Court held:
"To treat want of
territorial or pecuniary jurisdiction as amounting to incompetency, seems incompatible
with the idea underlying the two statutory provisions mentioned above (S.11,
Suits Valuation Act and S.21, Civil PC). These Sections provide that even had
the objection not been waived, that is to say, had been taken in the court of
first instance, the presence of a further element is essential, viz., that
there has been consequent failure of justice. The principle that they appear to
embody is that these defects of jurisdiction are not fundamental in character
and are no more than irregularities in the exercise of jurisdiction." 31.
Following that decision the Madras High Court in
Appat Krishna Poduval v.
Lakshmi Nathiar (AIR (37) 1950 Madras 751)
held, referring to Sec.11 of the
Madras Suits Valuation Act, 1887 and Sec.21 of the Code (before it stood by
amendment in 1976) that want of pecuniary jurisdiction in court is only
irregularity of exercise of jurisdiction and even if taken in the court of
first instance, is not sufficient to render a decree a nullity "unless
there has been consequential failure of justice".
32. Another
authoritative pronouncement on the question is
Kiran Singh v. Chaman Paswan
(AIR 1954 SC 340).
There, reference was made to Sec.11 of the (Central) Suits
Valuation Act, 1887 and Sec.21 of the Code. It was held in paragraph 7:
"It provides that objections to the jurisdiction of a Court based on
over-valuation or under-valuation shall not be entertained by an appellate
Court except in the manner and to the extent mentioned in the section. It is a
self-contained provision complete in itself, and no objection to jurisdiction
based on over- valuation or under-valuation can be raised otherwise than in
accordance with it. With reference to objections relating to territorial
jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection
to the place of suing should be allowed by an appellate or revisional Court,
unless there was a consequent failure of justice. It is the same principle that
has been adopted in Section 11 of the Suits Valuation Act with reference to
pecuniary jurisdiction. The policy underlying Sections 21 and 99 of the Civil
Procedure Code 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."
33. The Supreme Court held that the principle
that underlines Sec.11 of the (Central) Suits Valuation Act referred above and
Sec.21 of the Code is that a decree passed by a court which would have had no
jurisdiction to hear a suit or appeal but for over/under valuation is not to be
treated as what it would be but for the Section null and void. It is also held
that the 'prejudice' contemplated by Section is something different from the
fact of appeal having been heard in a forum which would not have been competent
to hear on a correct valuation of the suit.
34. A Full Bench
of this Court in
George v. Thekkekkara Vareed (AIR 1979 Kerala 1),
referring to
Secs.21 and 99 of the Code held that whether it was a jurisdictional defect or
a procedural illegality or irregularity, in either case, correction by an
appellate court was open, it is generally - especially in the latter case -
only where the defect complained of has occasioned a failure of justice.
35. In
Pathumma
v. Kuntalan Kutty (AIR 1981 SC 1683),
it is held that under Sec.21 of the Code,
any objection as to territorial jurisdiction of a court before a court of
appeal cannot be entertained in the absence of evidence of failure of justice
in consequence of trial in a wrong court. In that case, the High Court had
upheld objection of the defendant in appeal as to territorial jurisdiction of
the trial court. The Supreme Court held that the order of the High Court would be
liable to be set aside even if the objection was raised at a proper time when
the objector was unable to show that trial in a wrong court led to failure of
justice.
36. A Division
Bench of this Court in
C.M.Muhammed Ismayil v. M/s.Malabar Engineering Co.(AIR
2005 Kerala 295)
referring to Sec.21 of the Code said that objection as to
territorial jurisdiction even if raised by the defendant in the written
statement but, he did not press that question till the case was posted for
trial, it was not proper for the defendant to raise that question after
recording of evidence has commenced. In
the Supreme Court held that under Sec.21 of
the Code, objections as to territorial and pecuniary jurisdiction have to be
taken at the earliest possible opportunity and in any case before settlement of
issues and cannot be allowed to be taken at a later stage."
37. The last
decision referred to me on the question is
(where the decision in Kiran Singh v.
Chaman Paswan has been followed). In paragraph 24 it is held:
"............
The Code of Civil Procedure has made a distinction between
lack of inherent jurisdiction and objection to territorial jurisdiction and
pecuniary jurisdiction. Whereas, an inherent lack of jurisdiction may make a
decree passed by that court one without jurisdiction or void in law, a decree
passed by a court lacking territorial jurisdiction or pecuniary jurisdiction
does not automatically become void. At best it is voidable in the sense that it
could be challenged in appeal therefrom provided the conditions of section 21
of the Code of Civil Procedure are satisfied. It may be noted that Section 21
provided that no objection as to place the suing can be allowed by even an
appellate or revisional court unless such objection was taken in the Court of
first instance at the earliest possible opportunity and unless there has been a
consequent failure of justice.
...................."
In paragraph 27, it
is held:
"In the light of the above, it is clear that no objection to the
pecuniary jurisdiction of the court which tried O.S.No.61 of 1971 could be
raised successfully even in an appeal against that very decree unless it had
been raised at the earliest opportunity and a failure of justice or prejudice
was shown.
................"
38. The above binding authorities backed by
Sec.21(2) of the Code tells me that any objection as to the competence of trial
court with reference to pecuniary limit of its jurisdiction (be it on the
allegation of undervaluation of the suit) cannot be allowed by the appellate or
revisional court unless such objection was taken in the court of first instance
and "unless there has been a consequent failure of justice."
39. What
then is a consequent "failure of justice"? P.Ramanatha Iyer, in Law
Lexicon states that the term "failure of justice" is a colloquially
applied to the miscarriage of justice which occurs when the result of a trial
is so palpably wrong as to shock the moral sense. In Black's Law Dictionary the
expression "failure of justice" is understood as the defeat of a
particular right, or the failure of reparation for a particular wrong, from the
lack or inadequacy of a legal remedy for the enforcement of the one or the
redress of the other. The term is also colloquially applied to the miscarriage
of justice which occurs when the result of a trial is so palpably wrong as to
shock the moral sense.
40. The Supreme
Court in Kiran Singh v. Chaman Paswan also referred to what is understood by
the expression "failure of justice". It is held that
"prejudice" contemplated by the Section is something different from
the fact of appeal having been heard in a forum which would not have been
competent to hear on a correct valuation. To quote from paragraph 14, the
finding is under:
"........... The prejudice on the merits must be
directly attributable to over-valuation or under- valuation and an error in a
finding of fact reached on a consideration of the evidence cannot possibly be
said to have been caused by over-valuation or under- valuation. Mere errors in
the conclusions on the points for determination would therefore be clearly
precluded by the language of the section."
41. In this case, I fail to
understand, assuming that there was undervaluation (I am not holding so) and
therefore the court of learned Munsiff did not have pecuniary jurisdiction
(again, that is not an inherent lack of jurisdiction), in what way appellant is
prejudiced and there is a "failure of justice" consequent to the
finding of the trial court that it has jurisdiction. I stated that apart from
raising a bald contention in the written statement, appellant did not alert the
trial court at the appropriate stage as prescribed under Sec.12(2) of the Act
as to the necessity for a decision on the question raised (or the issue as the
case may be). Instead, appellant without any objection whatsoever participated
in the trial, cross examined witnesses of the respondent and adduced evidence.
She submitted to the jurisdiction (pecuniary) of the trial court and invited an
adverse decision. There is no case that on account of the trial court not
deciding the question under Sec.12(2) of the Act at the appropriate stage or on
account of incorrect finding trial court has entered on issue No.(i) any
failure of justice has occasioned to the appellant except that had the
objection of appellant been accepted, the forum of trial would have been
changed from the court of learned Munsiff to the court of learned Sub Judge.
There is no case that appellant was precluded from adducing any evidence or was
prevented, due to the issue of jurisdiction in taking up any plea. Above all,
it is relevant to note that appellant preferred the first appeal before the
court of learned District Judge which, had the objection of the appellant as to
undervaluation and the necessity to value the suit in accordance with the
consideration stated in Ext.A3 (Ext.B7), ie. ₹4,50,000/- been accepted, would
not have had pecuniary jurisdiction to entertain the first appeal and the forum
of that appeal would have been the High Court. There also, appellant invited a
decision on all issues including issue No.(i). I am inclined to think that not
only that appellant failed to prove any "failure of justice", but to
hold that there is no such "failure of justice".
42. I am inclined
to think that if the contention of appellant were to be accepted at this stage,
failure of justice would be on the part of respondent. Trial and first
appellate courts found that in respect of the property belonging to the
respondent, appellant created a forged document in an attempt to whisk away the
property of respondent and failed in that attempt. If I were to find at this
stage that the trial court has no pecuniary jurisdiction to decide the case the
consequence will be to set aside findings of the trial court and first
appellate court on the merit of the claim made by the parties and direct the
plaint to be returned to be presented before the appropriate forum washing away
the entire evidence which parties have adduced. That would enable the appellant
who is found to have committed forgery to cling on to her claim over the
property as per the forged document. I am not inclined to think that to enable
the appellant to do so, I should at this stage find that the valuation of suit
was not proper and consequently that the trial court had no pecuniary
jurisdiction to entertain the suit. I am to hold that the appellant is not
entitled to raise a plea of lack of pecuniary jurisdiction of the trial court,
be it based on the plea of undervaluation, in the first appellate court and in
this Court. Substantial questions of law are answered accordingly.
43. I place on
record my appreciation for the assistance rendered by Senior Advocate, Sri
S.V.Balakrishna Iyer.
44. The result of
my discussion is that the Second Appeal is liable to be dismissed. The Second
Appeal fails. It is dismissed without any order as to costs. All pending
interlocutory applications will stand dismissed.
