HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO SECOND APPEAL No. 136 of 2014
Dated: 21.04.2014
Between:
Shaik Madar Bee …..Appellant/Plaintiff And Shaik Saidulu and another ....Respondents/Defendants The Court made the following:
HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO SECOND APPEAL No. 136 of 2014
JUDGMENT :
This appeal is filed challenging the judgment and decree dated 29.06.2013 in A.S.No.16 of 2009 of the II Additional District Judge, Nalgonda at Suryapet, confirming the judgment and decree dated 01.06.2009 in O.S.No.218 of 1999 of the Junior Civil Judge, Kodad.
2. Heard Sri K.Narasimha Chary, learned counsel for the appellant/plaintiff and Sri V.Raghu, learned counsel for the respondents.
3. The appellant is the plaintiff in the above suit. She filed the suit for declaration of her title to the plaint schedule property and for consequential permanent injunction restraining the respondents from interfering with her peaceful possession and enjoyment of the same. The husband of plaintiff Pakeer Saheb had died on 09.05.1996. The 1st respondent is the younger brother and the 2nd respondent is the sister of the husband of the appellant.
4. The appellant contended that the plaint schedule property originally belonged to one Sk. Peda Kasim and Sk. China Kasim, of whom Sk. China Kasim was her father-in-
law; that Sk. Peda Kasim died issueless in December 1998; that the entire plaint schedule property was given to her husband by Sk. Peda Kasim, he gave a different extent of Ac.2.00 to 2nd defendant and another extent of Ac.5.16 guntas to 1st defendant. She alleged that the defendants tried to interfere with her peaceful possession and enjoyment over the plaint schedule property and therefore, she had to file the suit.
5. The defendants filed written statement admitting the relationship between the parties. They contended that Sk.Peda Kasim had executed registered Will on 06.05.1998 bequeathing the plaint schedule property in favour of the defendants and after the death of Sk. Peda Kasim, they have inherited the property under the said Will. An additional written statement was also filed by defendants, contending that the valuation of the suit schedule property is in-correct and if the property is valued properly, the trial Court would not have pecuniary jurisdiction to entertain the suit. It was also alleged that plaintiff was not in possession and enjoyment of plaint schedule property and she is not entitled to the relief of declaration of title and permanent injunction.
6. The trial Court framed the following issues:
1. Whether the plaintiff is entitled for the decree of perpetual injunction as prayed for?
2. To what relief?
3 . Whether the plaintiff is entitled for declaration of title as prayed for?
4. Whether the Court has jurisdiction to try the suit?
7. By judgment and decree dated 01.06.2009, the trial Court dismissed the suit. It held that plaintiff failed to establish that oral gift was made by Sk. Peda Kasim in favour of her husband and therefore she is not entitled to the relief of declaration of title. It also rejected the plea of the plaintiff that she is in possession and enjoyment of the plaint schedule property and held that the plaintiff is not entitled to the relief of permanent injunction. It upheld the plea of defendants that it had no pecuniary jurisdiction to entertain the suit.
8. Challenging the same, the plaintiff filed A.S.No.16 of 2009 before the II Additional District Judge, Nalgonda at Suryapet. The said appeal was also dismissed on 29.06.2013 confirming the findings of the trial Court on merits. It also held that although the trial Court had no pecuniary jurisdiction to entertain the suit insofar as the grant of relief of declaration of title and perpetual injunction is concerned, still the contention of the appellant that when the trial Court had no jurisdiction, it ought to have returned the plaint instead of deciding the suit on merits, is not tenable. It held that under Section 21(2) of the C.P.C. the appellate Court will not permit an objection as to the pecuniary limits of jurisdiction of the trial Court to be raised 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 consequential failure of justice; It also relied upon a decision reported in Kiran Singh and others v.
[1]
Chaman Paswan and others and held that if there is no proof of failure of justice or prejudice on the merits to a party, the judgment rendered by a Court is not liable to be reversed purely on technical grounds; that the objections as to the jurisdiction, both territorial and pecuniary, are treated as technical; and the decree of the trial Court cannot be set aside on that ground. It specifically held that the plaintiff failed to show that there is a consequent failure of justice in the case; that the plaintiff went on with trial in spite of the objection being taken by the other side that the trial Court had no pecuniary jurisdiction; that she proceeded with the trial and invited decision on merits; and when the decision went against her on merits, now she is raising the plea that the trial Court ought to have returned the plaint instead of deciding the case on merits.
9. Challenging the same, this Second Appeal is filed.
10. Sri K.Narasimha Chari, learned counsel for the appellant contended that since both the trial Court and the appellate Court have held that the trial Court had no pecuniary jurisdiction to entertain the suit, they ought not to have gone into merits of the case of the plaintiff and they should have simply returned the plaint for presentation to the proper Court as per Order VII Rule 10 of the C.P.C. He contended that the judgment of both the trial Court and the appellate Court have to be treated as null and void and on the said ground, the judgements need to be set aside. He relied upon the decisions of this Court in Chillakuru
[2]
Chenchurami Reddy v. Kanupuru Chenchuram Reddy
[3]
and ONGC Ltd. V. M/s.Modern Construction and Co.
11. Learned counsel for the respondents on the other hand contended that the judgment of the Courts below are correct; in view of the law declared by the Supreme Court in Kiran Singh’s case (1 supra), since the appellant has no evidence to show that there was consequent failure of justice or any prejudice caused to the appellant on the ground that the trial Court deciding the suit without having pecuniary jurisdiction, the appeal is without any merit and is liable to be dismissed.
12. Therefore, the only question for consideration is in the facts and circumstances of the case whether the judgments of the trial Court and 1st appellate Court on merits of the claim of the appellant are null and void when they have taken a view that valuation of the suit was not proper and that the trial Court had no pecuniary jurisdiction to entertain the suit for the relief of declaration of title and for grant of permanent injunction.
13. For consideration of this point, it is necessary to have a look at Section 21 of the C.P.C.
21. Objections to jurisdiction:(1) No objection as to the place of suing 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.
(2) No objection as to 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.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.
14. In Kiran Singh’s case (1 supra), the Supreme Court considered Section 11 of the Suits Valuation Act, 1887 (for short, ‘the Act’), which is in parimeteria with Section 21 of the C.P.C. Section 11 had provided for objections to the jurisdiction of the Court based on over valuation or under- valuation shall not be entertained except in the manner and to the extent mentioned in the said section i.e, unless there was a consequent failure of justice. In fact, the Supreme Court stated that the principle laid down in Section 21 of the C.P.C. is what was adopted in Section 11 of the Act, which speaks with reference to the pecuniary jurisdiction. It observed that the policy underlying Sections 21 and 99 of the C.P.C. and Section 11 of the Act is the same, namely, that when a case had been tried 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. In para 12 of the said judgment, the Supreme Court observed as follows:
“The question, therefore, is, can a decree passed on appeal by a Court which had jurisdiction to entertain it only by reason of under-valuation, be set aside on the ground that on a true valuation that Court was not competent to entertain the appeal? Three High Courts have considered the matter in Full Benches, and have come to the conclusion that mere change of forum is not a prejudice within the meaning of Section 11 of the Suits Valuation Act. Vide ‘Kelu Achan v. Cheriya Parvathi Nethiar’, AIR 1924 Mad 6 (FB) (E): ‘Mool Chand v. Ram Kishan’, AIR 1933 All 249 )FB)(F) and AIR 1949 Pat 278 (FB) (A). In our judgment, the opinion expressed in these decisions is correct.
In deed, it is impossible on the language of the section to come to a different conclusion. If the fact of an appeal being heard by a Subordinate Court or District Court where the appeal would have lain to the High Court if the correct valuation had been given, is itself a matter of prejudice, then the decree passed by the Subordinate Court or the District Court must, without more, be liable to be set aside, and the words “unless the over- valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits’ would become wholly useless. These words clearly show that the decrees passed in such cases are liable to be interfered with in an appellate Court, not in all cases and as a matter of course, but only if prejudice such as is mentioned in the section
results. And the prejudice envisaged by that Section therefore must be something other than the appeal being heard in a different forum.
A contrary conclusion will lead to the surprising result that the section was enacted with the object of curing defects of jurisdiction arising by reason of over-valuation or under-valuation, but that, in fact, this object has not been achieved. We are therefore clearly of opinion that the prejudice contemplated by the 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.”
15. This principle has been reiterated by the Supreme Court in Subhash Mahadevasa Habib v. Nemasa Ambasa
[4]
Dharmadas & Ors. The said principle has not been deviated by the Supreme Court in any later case.
16. In Chillakuru Chenchurami Reddy’s case (2 supra) relied upon by the learned counsel for the appellant, this Court has taken the view that if the amended valuation exceeds the pecuniary jurisdiction of the Court, the plaint must be returned for presentation to proper Court in view of Order VII Rule 10 of the C.P.C. But this Court did not consider the situation where the trial Court having taken the view that it had no pecuniary jurisdiction proceeds to decide the case on merits also and the affect of such a judgment on the parties to it. Therefore, the said decision has no application.
17. I n ONGC Ltd.’s Case (3 supra) relied upon by the learned counsel for the appellant, the plaint was returned for presentation to the Court of competent jurisdiction on the ground that the Court in which it was presented had no territorial jurisdiction to entertain the suit. The Supreme Court held that when the plaint is represented in the Court of competent jurisdiction, it shall be treated as new plaint and the trial even if concluded in the Court having no jurisdiction, has to be conducted de novo. This principle also has no application to the present case since in the present case, the plaint was not returned for presentation to proper Court on the ground that the trial Court had no pecuniary jurisdiction to entertain it.
18. In my opinion, the decision in Kiran Singh (1 supra) covers the present case on all fours and on the failure of the appellant to prove prejudice/failure of justice other than any prejudice caused because of the trial Court entertaining the suit, the judgments of trial Court and the 1st appellate Court cannot be disturbed. I also agree with the lower appellate Court that the appellant went on with the trial in spite of objection that the trail Court had no pecuniary jurisdiction; and invited a decision on merits and when the said decision went against her, she is now turning around and contending that the plaint ought to have been returned. The appellant cannot take advantage of her own mistake.
19. In Bhartiya Sevan Samaj Trust Tr. Pres. & Anr. V.
[5]
Yogeshbhai Ambalal Patel & Anr., , while dealing with the issue held:
“A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim ‘allegans suam turpitudinem non est audiendus’. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong….
This concept is also explained by the legal maxims ‘Commodum ex injuria sua non habere debet’; and ‘nullus commodum capere potest de injria sua propria’.”
20. The said principle has also been noted in ONGC Ltd.’s case (3 supra). I, therefore, find no merit in the appeal, the same is accordingly dismissed. No order as to costs.
21. As a sequel, Miscellaneous Petitions, if any, pending in this second appeal shall stand closed.
M.S. RAMACHANDRA RAO, J 21st April 2014. mar
[1] AIR 1954 SC 340
[2] 1968 Andhra Weekly Reporter 616
[3] AIR 2014 SC 83
[4] 2007 (13) SCC 650 paras 33 and 34
[5] AIR 2012 SC 3285 (2012 AIR SCW 5125)