9911796707
TMI Blog1954 (4) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... laid for ejecting defendants Nos. I to II and for mesne profits, past and future, and it was valued at ₹ 2,950, made up of ₹ 1,950 being the value of the relief for possession and ₹ 1,000, being the past mesne profits claimed. Defendants Nos.- I to II contested the suit. They pleaded that they had been in possession of the lands as tenants on batai system, sharing the produce with the landlord., from fasli 1336 and had acquired occupancy rights in the tenements, that the second party had no right to settle them on the plaintiffs, and that the latter acquired no rights under the settlement dated 12th April, 1943. Defendants Nos. 12 and 13 remained ex-parte. The Subordinate Judge held, relying on certain receipts marked as Exhibits A to A-114 which were in the handwriting of the patwaris of the second party and which ranged over the period from fasli 1336 to 1347, that defendants Nos. I to II had been in possession for over 12 years as cultivating tenants and had acquired occupancy rights, and that the settlement dated 12th April, 1943, conferred no rights on the plaintiffs. He accordingly dismissed the suit. The plaintiffs preferred an appeal against this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal against the judgment and decree of the Subordinate Judge, Monghyr, and that the appellants were entitled to a full heating as well on questions of fact as of law. And alternatively, it is contended that even if the decree and judgment of the District Court on appeal are not to be treated as a nullity and the matter is to be dealt with under section 11 of the Suits Valuation Act, the appellants had suffered Prejudice within the meaning of that section, in that their appeal against the judgment of the Subordinate Judge was heard not by the High Court but by a Court of inferior jurisdiction, viz., the District Court of Monghyr, and that its decree was therefore liable to be set aside, and the appeal heard by the High Court on the merits, as a first appeal. The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of section II of the Suits Valuation Act is on that position. It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1 1 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decree, he can obviously ask for a declaration that the decree is a nullity, because made by a Court which had no jurisdiction over the subject-matter of the litigation On the facts, the question of the effect of section 11 of the Suits Valuation Act did not arise for determination, and was not considered. In Shidappa Venkatrao v. Rachappa Subrao(I.L.R. 36 Bom. 628.) the plaintiffs instituted a suit in the Court of the Subordinate Judge, First Class, for a declaration that he was the adopted son of one Venkatrao and for an injunction restraining the defendant from interfering with his possession of a house. The plaint valued the declaration at ₹ 130 and the injunction at ₹ 5, and the suit was valued for purposes of pleader s fee at ₹ 69,016-9-0 being the value of the estate. The suit was decreed by the Subordinate Judge, and against his decree the defendant preferred an appeal to the District Court, which allowed the appeal and dismissed the suit. The plaintiff took up the matter in second appeal to the High Court, and contended that on the valuation in the plaint the appeal against the decree of the Subordinate Judge lay to the High Court, and that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overned by section 11 of the Suits Valuation Act, there was prejudice to the appellants, in that by reason of the undervaluation, their appeal was heard by a Court of inferior jurisdiction, while they were entitled to a bearing by the High Court on the facts. It was argued that the right of appeal was a valuable one, and that deprivation of the right of the appellants to appeal to the High Court on facts must therefore be held, without more, to constitute prejudice. This argument proceeds on a misconception. The right of appeal is no doubt a substantive right, and its deprivation is a serious prejudice; but the appellants have not been deprived of the right of appeal against the judgment of the Subordinate Court. The law does provide an appeal against that judgment to the District Court, and the plaintiffs have exercised that right. Indeed, the undervaluation has enlarged the appellants right of appeal, because while they would have had only a right of one appeal and that to the High Court if the suit had been correctly valued, by reason of the under-valuation they obtained right to two appeals, one to the District Court and another to the High Court. The complaint of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e section is something different from the fact of the appeal having been heard in a forum which would not-have been competent to hear it on a correct valuation of the suit as ultimately determined. It is next argued that in the view that the decree of the lower appellate Court is liable to be reversed only on proof of prejudice on the merits, the second appellate Court must, for the purpose of ascertaining whether there was prejudice, hear the appeal fully on the facts, and that, in effect, it should be Heard as a first appeal. Reliance is placed in support of this contention on the observations of two of the learned Judges in Ramdeo Singh v. Rai Narain (I.L.R. 27 Patna tog; A.I. R, 1949 Patna 278.). There, Sinha J. observed that though the second appeal could not be treated as a first appeal, prejudice could be established by going into the merits of the decision both on questions of fact and of law,, and that that could be done under section 103 of the Civil Procedure Code. Meredith J. agreed that for determining whether there was prejudice or not, there must be an enquiry on the merits of the decisions on questions of fact but he was of opinion that that could be done under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If they do not exist, there is no other power under the Civil Procedure Code authorising the Court of second appeal to set aside findings of fact and to re-hear the appeal itself on those questions. We must accordingly hold that an appellate Court has no power under section 1 1 of the Suits Valuation Act to consider whether the findings of fact recorded by the lower appellate Court are correct, and that error in those findings cannot be held to be prejudice within the meaning of that section. So far, the definition of prejudice has been negative in terms-that it cannot be mere change of forum Dr mere error in the decision on the merits. What then is Positively prejudice for the purpose of section 11 ? That is a question which has agitated Courts in India ever. since the enactment of the section. It has been suggested that if there was no proper hearing of the suit or appeal and that had resulted in injustice, that would be prejudice within section 11 of the Suits Valuation Act. Another instance of prejudice is when a suit which ought to have been filed as an original suit -is filed as a result of under-valuation on the small cause side. - The procedure for trial of suits in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n valuation which was their own. If the law were that the decree of a Court which would have had no jurisdiction over the suit or appeal but for the over-valuation or undervaluation should be treated as a nullity, then of course, they would not be estopped from setting up want of jurisdiction in the Court by the fact of their having themselves invoked it. That, however, is not the position under section 1 1 of the Suits Valuation Act. Why then should the plaintiffs be allowed to resile from the position taken up by them to. the prejudice of their opponents, who had acquiesced therein ? There is considerable authority in the Indian Courts that clausts (a) and (b) of section I 1 of the Suits Valuation Act should be read conjunctively, notwithstanding the use of the word or. If that is the correct interpretation, the plaintiffs would be precluded from raising the objection about jurisdiction in an appellate Court. But even if the two provisions are to be construed disjunctively, and the parties held entitled under section 1 1 (1) (b) to raise the objection for the first time in the appellate Court, even then, the recuirement as to prejudice has to be satisfied, and the party who ..... X X X X Extracts X X X X X X X X Extracts X X X X
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