That apart the general proposition of law which has been laid
down by the judgments cited (supra) is that the Appellate forum is determined
on the basis of the valuation as originally set out in the plaint and not on the
basis of the contents of the decree.
In my view, the application of the said proposition of law results in
uniformity in so far as the Appellate forum is concerned, as otherwise it would
happen that the Plaintiffs may choose one Appellate forum and the Defendants
another. Hence though the valuation for the purposes of court fees would
change in a given case, for the purposes of jurisdiction it would remain the
same. Such a scenario cannot be said to be alien to the legal frame work which
is applicable to the valuation of the suit. The learned Senior Counsel Shri
Kumbhakoni is therefore right in submitting that the valuation a suit for the
purposes of payment of court fees and for the purposes of jurisdiction should
not be confused with each other.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.654 OF 2011
Sagar Dattatraya Sakhare ]
Versus
Shri Sanjay Waman Sathe ]
CORAM : R. M. SAVANT, J.
Pronounced on : 26th June 2014
Citation; 2015(3) ALLMR667
1 A short question which arises for consideration in the above
Petition is, whether the forum of Appeal is to be determined on the basis of the
value of the subject matter of the Suit as determined by the Trial Court in the
decree or on the basis of the valuation of the suit as originally set out in the
plaint.
FACTUAL MATRIX
2 The above Petition is directed against the order dated 13/10/2010
passed by the learned District Judge12,
Pune by which order the Applications
Exhibits 9 and 14 filed in Civil Appeal No.758 of 2008 by the Respondents
herein came to be allowed and the Memo of Appeal was directed to be
returned to the Petitioners herein for presentation before the appropriate
forum. The Petitioners herein are the original Plaintiffs and the Respondents
herein are the original Defendants. The parties would be referred to as per
their status in the Trial Court.
3 The Plaintiffs had filed the suit in question being Regular Civil Suit
No.1171 of 2006 against the Defendants for seeking a declaration that the Gift
Deed dated 10/11/2005 executed by the Defendant Nos.2 and 3 in favour of
the Defendant No.1 in respect of the suit properties be declared as illegal, null
and void, and not binding on the Plaintiffs, and the same be cancelled. The
Plaintiffs had also sought the relief of partition of the suit properties and
permanent injunction. It was the case of the Plaintiffs that the Defendant No.2
has two sons one Dattatraya who had expired, and the Defendant No.6. The
Plaintiffs claimed through the said Dattatraya being his son and widow. The
Defendant No.3 is the wife of Defendant No.2 and the Defendant No. 6 is the
father of Defendant Nos.4 and 5. The Defendant No.1 in whose favour the Gift
Deed has been executed by the Defendant Nos.2 and 3 is the grandson
of the
Defendant Nos.2 and 3 being the son of their daughter one Chandrabhaga
Waman Sathe. According to the Plaintiffs a registered deed of partition came
to be executed on 13/9/2002 with the consent of the sister of the Defendant
No.2. It was the case of the Plaintiffs that in terms of the Partition Deed, the
Defendant No.2 though having a share in the properties being Survey No.
5/10/, 79/2, 102/2 and 116/2, had agreed that he would not transfer the
same during his life time and after his demise 1/2 share will come to the
Plaintiffs and 1/2 will go to the Defendant Nos.4 and 5. It was the case of the
Plaintiffs that despite the said Partition Deed, the Defendant Nos.2 and 3
executed the registered Gift Deed in favour of the Defendant No.1 on
10/11/2005 not only in respect of the suit properties but also in respect of the
land bearing Survey No.133/5 in violation and breach of the Partition Deed
and therefore the suit has been filed by the Plaintiffs claiming partition of their
1/3rd share in Survey No.133/5, and seeking declaration that the Gift Deed
executed by the Defendant Nos.2 and 3 in favour of the Defendant No.1 is
illegal, null and void and not binding on the Plaintiffs.
4 The Defendant Nos.1 to 3, 5 and 6 filed their Written Statement,
however, denied the case of the Plaintiffs and also denied any restriction on
their capacity to transfer the suit properties and it was their case that the
Defendant No.2 had become the absolute owner of the properties assigned to
his share and therefore the Plaintiff No.1 and the Defendant Nos.5 and 6
cannot have any claim.
5 The parties went to trial, the Trial Court by the judgment and
order dated 23/10/2008 partly decreed the suit and thereby declared the Gift
Deed executed by the Defendant Nos.2 and 3 in favour of the Defendant No.1
as illegal, null and void and not binding upon the Plaintiffs, and further
granted Temporary Injunction. Whilst decreeing the suit, the Trial Court also
recorded a finding that the suit was not properly valued and held that since the
Gift Deed was covering a property which was worth Rs.18,06,000/is
challenged, the suit had to be valued on the said basis and, accordingly
directed the Plaintiffs to pay the deficit court fees.
6 The Defendant Nos. 1 to 3, 5 and 6 filed a First Appeal in this
Court being First Appeal No.334 of 2010 against the decree passed by the Trial
Court dated 23/10/2008. The Petitioners herein i.e. the Plaintiffs filed Regular
Civil Appeal No.758 of 2008 in the District Court, Pune challenging the decree
in so far as the finding recorded on Issue No.6 against them, viz. whether the
suit is properly valued. The Assistant Superintendent of the District Court,
Pune on the basis of the finding recorded on Issue No.6 observed that it would
be necessary to ascertain whether the Appeal filed in the District Court was
maintainable. However, the learned District Judge6
by his order dated
10/12/2008 took a view that the court fees would have to be paid at the rate
of ½ of ad volorem fee leviable on the value of the property. The learned
District Judge further held that if the declaration is sought that a sale, contract
for sale or a termination of contract for sale of any movable or immovable
property is void, and if the same is in respect of the Gift Deed, the suit is
required to valued as per Section 6(iv)(j) of the Bombay Court Fees Act, and
therefore, the Appeal was maintainable. According to the learned District
Judge the valuation of the suit being less than Rs.2,00,000/.
The Appeal filed
in the District Court was maintainable.
7 After the said order dated 10/12/2008 was passed by the learned
District Judge6
Pune, the Respondent No.1 herein filed an Application Exhibit
9 in the said Civil Appeal No.758 of 2008. The Respondent Nos.2 and 3 herein
also filed a similar Application Exhibit 14 seeking direction that the Appeal
filed by the Petitioners herein be returned to the Petitioners for being presented
in the High Court and to further hold that the Appeal is not maintainable in the
District Court and to hold that the subject matter of the suit exceeded
Rs.2,00,000/and
therefore the District Court had no jurisdiction to entertain
the Civil Appeal. It seems that on 14/09/2010 the First Appeal filed by the
Respondents being First Appeal No334 of 2010 against the decree passed by
the Trial Court came up for hearing before a Division Bench of this Court. The
Division Bench of this Court, in view of the Applications Exhibit 9 and Exhibit
14 directed the Lower Appellate Court i.e. the learned District Judge to decide
the Applications Exhibit 9 and Exhibit 14 on their own merits and in
accordance with law within the time stipulated in the said order. The learned
District Judge12,
Pune accordingly took up the said Applications Exhibit 9 and
Exhibit 14 and held that in view of the finding recorded on Issue No.6 by the
Trial Court, the Appeal would have to be returned to the Petitioners for being
presented before the appropriate forum. The learned District Judge12
accordingly allowed the Applications Exhibit 9 and Exhibit 14 by his order
dated 13/10/2010.
8 The gist of the reasoning of the learned District Judge was that the
Appeal being a continuation of the suit, the Court had the powers to revise the
valuation under Section 8 of the Suits Valuation Act and hence though at the
time of the admission of the Appeal an order was passed that the valuation of
the suit is below Rs.2,00,000/and
therefore the District Court was the
Appellate forum, the said was liable to be corrected, if the question has been
wrongly decided to the detriment of the revenue and then the Court can call
upon the party to pay the additional court fee, the learned District Judge held
that having regard to subsection 2 of Section of Section 14 of the Suits
Valuation Act, the decision as regards the valuation has become final between
the parties and therefore for the purposes of determining of the forum of
Appeal, the valuation of the suit has to be held beyond Rs.2,00,000/.
The
learned District Judge has held that in terms of Section 26 of the Bombay Civil
Courts Act the Appeal would not lie before the District Court. As indicated
above, he learned District Judge accordingly allowed the Applications Exhibits
9 and 14 and directed that the memo of Appeal be returned to the appellant
for presentation before the appropriate forum. It is the said order dated
13/10/2010 passed on the Applications Exhibit 9 and Exhibit 14 which is taken
exception to by way of the above Writ Petition.
9 Heard the learned counsel for the parties. The principal
contention of the learned counsel appearing for the Petitioners original
Plaintiffs Shri Kulkarni was that the forum of Appeal has to be determined on
the basis of the valuation of the suit when originally filed and not on the basis
of the decree passed. The learned counsel would contend that the Lower
Appellate Court had therefore erred in holding that the valuation would be in
terms of the finding which has been recorded on Issue No.6 by the Trial Court
and therefore the Appellate forum would not be the District Court. The
learned counsel for the Petitioners placed reliance on the Full Bench Judgment
of this Court in the case of Kazi Sayed Saifudding v/s. Kasturichand
Abhayrajji Golchha1, the judgments of two learned Single Judges of this
Court in Nirmal Quality Products v/s. M/s. Contey Industries and another2
and in Teofilo Barreto v/s. Sadashiv G Nasnodkar and others.3 The learned
counsel for the Petitioners Shri Kulkarni would next contend that the
Petitioners i.e. the original Plaintiffs have filed an Appeal against the decree
passed by the Trial Court wherein the finding on Issue No.6 has been assailed
and therefore the said finding on issue No.6 is in question in the Appeal. The
learned counsel would contend that the reliance placed on behalf of the
Respondents herein i.e. the original Defendants on the judgment of a learned
Single Judge of Madras High Court in the case of Maddipati Ramanna alias
Tatabbayi and others v/s. Maddipati Subbarayudu and others 4 is misplaced
and the same would not aid the Respondents in support of their case that the
valuation has to be on the basis of the finding in respect of the valuation
1 1999(2) Mh.L.J.675
2 1995(1) Mh.J.J.189
3 2007(3) Mh.L.J.850
4 AIR (38) 1951 Madras 886(2)
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recorded by the Trial Court in the decree.
10 Per contra, the learned counsel appearing on behalf of the
Respondent Nos.1 to 3 i.e. the original Defendants Shri T D Deshmukh would
submit that since the suit was erroneously valued, at the instance of the
Defendants that the issue regarding valuation was framed and since same has
been answered against the Plaintiffs, the Plaintiffs have accordingly been
directed to pay court fee on Rs.18,06,000/,
the said valuation would relate
back to the filing of the suit and therefore the Appellate forum would have to
be decided on the said basis. The learned counsel would contend that in a
somewhat identical situation, a learned Single Judge of the Madras High Court
in the judgment in the case of Maddipati Ramanna (supra) has held that
where the Plaintiff revises in obedience to an order of the Court directing him
to pay the court fees, the valuation as finally adopted in the plaint and not the
one originally mentioned will determine the forum of Appeal. The learned
counsel would submit that in the instant case Court has come to a conclusion
that the suit has been wrongly valued and accordingly directed the Plaintiffs to
pay the court fee on the amount of Rs.18,06,000/which
was the subject
matter of the suit, the suit would have to be valued accordingly which would
accordingly determine the Appellate forum. The learned counsel would
contend that though the Lower Appellate Court had initially at the time of
admission of the Appeal had held that the valuation is under Rs.2,00,000/,
the
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same was liable to be corrected as the Court has ample powers under Section
14 of the Bombay Court Fees Act to do so. The learned counsel would contend
that the Lower Appellate Court has accordingly rightly held that the valuation
would have to be in terms of the finding which has been recorded by the Trial
Court on Issue No.6, and therefore, directed that the Appeal be returned to the
appellant for being presented in the appropriate forum.
The learned counsel Shri Paranjape for the Respondent Nos. 4 to 6
adopted the submissions of the learned counsel for the Petitioner.
11 The learned Senior Counsel Shri A.A.Kumbhakoni was requested
to assist this Court in adjudicating the above issue. He willingly consented to
the same and made the following submissions :The
learned Senior Counsel would contend that the valuation of
the suit for the purposes of the payment of court fees and for the purposes of
jurisdiction ought not to be confused with each other. This more particularly
for deciding the issue of jurisdiction of appellate court to try and decide the
Appeal. The learned Senior Counsel would contend that though Section 8 of
the Suits Valuation Act specifically lays down that valuation of a suit for court
fees and valuation for jurisdiction must generally be the same, the said
provision itself carves out the exceptions where the valuation between the two
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may differ, thus in exceptional cases, value for court fee and value for
jurisdiction of the suit may differ. The learned Senior Counsel would contend
that the same is exemplified by the fact that the parties to a suit may file
Appeals aggrieved by different parts of the decree. If the suit is partly decreed,
the Plaintiff would file an Appeal against that part of the decree which has
been refused whereas the Defendant may file an Appeal against the part of the
decree which has been allowed. Hence in so far as the valuation of the Appeals
for the purposes of court fees is concerned they would differ however in so far
as the valuation for the purposes of jurisdiction, it would be the same and
identical to the manner in which the suit is valued. The learned Senior
Counsel would contend that in the instant case, the finding rendered on Issue
No.6 seems to be more aimed at the valuation of the suit for the purposes of
court fees rather than the valuation of the suit for the purposes of jurisdiction.
The learned Senior Counsel would contend that in the instant case the Court
may not have adjudicated the issue from the point of jurisdiction since it was
the court of learned Civil Judge, Senior Division who had unlimited jurisdiction
in terms of the value of the suit. The learned Senior Counsel would contend
that the end result is that in spite of the aforesaid finding of the Trial Court in
respect of the improper valuation of the suit, the suit continues to be valued for
the purposes of jurisdiction in the way it was since the beginning i.e. for an
amount of Rs.1,000/plus
Rs.4/as
is clear from the plaint. The learned Senior
Counsel would contend that the instant case stands on a different footing than
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the case before the learned Single Judge of the Madras High Court in
Maddipati Ramanna's case, as in the instant case the Plaintiffs have
questioned the finding recorded by the Trial Court on the said Issue No.6
whereas in the case before the Madras High Court the Plaintiffs had accepted
and corrected the valuation in terms of the order passed by the Trial Court and
it is thereafter at the appellate stage that the Plaintiffs had sought to question
the revised valuation. The learned Senior Counsel would contend that the fact
that the Plaintiff is unable to value the suit properly when it is filed or whether
the Plaintiff has deliberately undervalued/overvalued the suit at the time of
filing of the suit, the same would not change the position of law inasmuch as
the jurisdiction of the appellate court is concerned. The jurisdiction of the
Appellate forum would be continued to be governed by the valuation of the
suit for the purposes of jurisdiction, as made by the Plaintiff, at the stage of
filing of an Appeal. It is only if the valuation of the suit for the purposes of
jurisdiction is either enhanced or reduced, such an amended valuation of the
suit would decide the jurisdiction of the Appellate forum, as in such a case an
amendment relates back to the date of filing of the suit. The learned Senior
Counsel would contend that the common thread in all the judgments cited
(supra) on behalf of the parties is that the valuation of the suit determines the
forum of the Appeal and not the valuation of the decree, and that the forum of
Appeal is to be determined upon the value as found by the Court has not been
accepted by all the High Courts.
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12 Having heard the learned counsel for the parties, I have
considered the rival contentions. As indicated above the issue which arises for
consideration whether the finding recorded by the Trial Court in respect of the
valuation of the suit would determine the Appellate forum in the instant case.
In the instant case the Plaintiffs had valued the suit at Rs.1004/for
the
purposes of court fees and jurisdiction. The said valuation was objected to on
behalf of the Defendant Nos. 1 to 3. In view thereof, the Trial Court had
framed Issue No.6 which was to the following effect :“
Whether the Plaintiffs
have properly valued the suit?”, and the answered the same in the negative.
The said finding of the Trial Court is recorded in Paragraph No.20 of its
judgment dated 23/10/2008 which for the sake of convenience is reproduced
herein under :“
Admittedly, the Plaintiffs have challenged the gift deed
dated 10.11.2005 executed by Defendants No.2 and 3
in favour of the Defendant No.1, but, it is a fact that,
Plaintiffs have not shown the market value of the suit
properties, for the better reasons known to them.
According to the Defendants, the market value as
shown in the said Gift Deed is Rs.18,06,000/and
therefore the suit falls under Section 6(iv)(ha) of the
Bombay Court Fees Act and thus, further concluded
that the calculation of the Court fees by the Plaintiffs
under Section 6(iv)(j) is not just and proper. I do not
find substance in the submission of the Defendants and
therefore I hold that the Plaintiffs ought to have paid
the Court fees, considering the market value shown in
the Gift Deed as Rs.18,06,000/under
section 6(iv)(ha)
of the Bombay Court Fees Act, 1959. Therefore, they
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should deposit deficit court fees accordingly. With this
observation, I have no hesitation to answer this issue in
the negative.”
The Plaintiffs were accordingly directed to pay the deficit court fees. In so far
as the Plaintiffs are concerned, they have taken exception to the said decree by
filing an Appeal in the District Court whereas the Defendants have taken
exception to the decreeing of the suit for specific performance against them by
filing a First Appeal in this Court. It is in the said First Appeal that a direction
came to be issued to the learned District Judge before whom the Appeal filed
by the Plaintiffs is pending directing the learned District Judge to decide the
applications Exhibits 9 and 14 which have accordingly be decided by the order
impugned in the present Petition.
A reference is required to be made to Section 8 of the Suits
Valuation Act, 1887.
“Section 8: Court fee value and jurisdictional
value to be the same in certain suitsWhere
in
suits other than those referred to in the Courtfees
Act, 1870 (7 of 1870) Section 7, paragraph
v, vi and ix, and paragraph x, clause (d) court
fees are payable ad valorem under the Courtfees
Act, 1870 (7 of 1870), the value as determinable
for the computation of Courtfees
and the value
for purposes of jurisdiction shall be the same.”
13 At this stage, it is required to be noted that though Section 8
postulates that valuation for the purposes of Court fees and jurisdiction must
generally be the same. The said provision itself carves out the exceptions to
the said Rule. Thus in some type of cases which have been mentioned in the
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said provision the valuation for the purposes of court fees and jurisdiction may
differ. The reference to the said provision is required to be made as the Trial
Court in its finding recorded in Paragraph 20 or in the operative part of its
judgment has not directed the Plaintiffs to correct the valuation for the
purposes of jurisdiction but has only directed the Plaintiffs to pay the deficit
court fees as per the valuation which has been arrived at by the Trial Court.
This may probably have been done by the Trial Court as the Trial Court was the
Court of the Civil Judge Senior Division which has unlimited jurisdiction.
However, the question still remains is, whether the Appellate forum would
have to be decided on the basis of the finding recorded by the Trial Court on
the aspect of valuation or in terms of the valuation as it originally exist in the
suit. It is required to be noted that in the judgments (supra) cited on behalf of
the parties i.e. by the learned counsel for the Petitioners and the learned Senior
Counsel Shri Kumbhakoni, the common thread running in all the said
judgments is that the forum of Appeal is to be determined on the basis of the
valuation in the plaint and not on the basis of the decree passed. The said view
therefore seems to be a consistent view on the said aspect. It would therefore
be apposite to consider the said judgments at this stage. In the case before the
Full Bench of this Court in Kazi Syed Saifuddin (supra) the issue was whether
the forum of Appeal would be determined on the quantum of mesne profits as
decreed. The Full Bench answered the said issue by holding that the forum of
Appeal for challenging the decree of eviction that has been based would not be
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determined on the basis of the mesne profits which have been determined
pursuant to an enquiry under Order 20 Rule 12(1)(c) of the Code of Civil
Procedure but would be determine on the valuation in the plaint as originally
filed. Paragraph Nos.21 to 23 of the said Report are material and are
reproduced herein under :21.
The argument of the learned Counsel for the
appellant, if accepted, is likely to give rise to certain
anomalous position. In a suit for accounts filed by a
sleeping partner he may not be aware at all of the
nature of profits and his possible share. Even if aware,
the law permits him to notionally value the claim in the
plaint. If such a suit is dismissed, then against the
decree on the basis of notional valuation in the plaint,
the appeal by defendant would definitely go to the
District Court. If the District Court reverses the decree
of dismissal and passes a decree for a sum which is
more than the limits of pecuniary jurisdiction of the
trial Court (Civil Judge, Jr. Dn.) then it may be
contended even at the appellate stage that the trial
Court had no jurisdiction to entertain the suit. Thus
after coming to the conclusion regarding the quantum
to be awarded finally to the plaintiff, the Appellate
Court will have to return the plaint for presentation to
the proper Court. Similar is the case of claim in respect
of future mesne profits. Further mesne profits are by
their very nature profits or the income derived by the
defendant during the pendency of the suit. The cause of
action for the same does not accrue when the plaint is
presented and in order to enable the plaintiff, a proviso
is introduced to make a request to the Court for
direction regarding the inquiry into future mesne
profits, the quantum of which is not known to anybody
at that stage. If after inquiry into future mesne profits
the Court comes to a conclusion that the quantum to be
awarded is beyond the pecuniary limits of the
jurisdiction then it may be contended successfully that
the Court had no jurisdiction to pass the preliminary
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decree as one of the claims made in the paint was
beyond the pecuniary jurisdiction of that Court.
However, in the same case, an appeal against the
dismissal of the suit would nevertheless lie to the
District Court. Similarly, in a suit for accounts, the law
permits the plaintiff to make a notional valuation and,
as already discussed, the valuation for the purpose of
jurisdiction is the same which is the valuation for the
purpose of Court Fees as it permitted by law. If the
contention that the forum of appeal is dependent on
the final adjudication of the matter regarding the
quantum of accounts or on the final decree then the
preliminary decree may be challenged as one without
jurisdiction and non est. In fact, in order to avoid such
eventualities, provision has been made permitting the
plaintiff to have a notional valuation and to pay the
fixed Court Fees and the valuation for the purpose of
jurisdiction is also to be the same. It is for these simple
reasons, in the decision in Ambadas v. Vishnu Govind ,
the Division Bench of this Court has held that the mere
fact that the decree is for an amount exceeding the
pecuniary jurisdiction of the Court which passed the
decree, is not ipso facto proof that it was beyond
jurisdiction and a nullity and the Court is wrong in
questioning in execution the validity of such a decree.
This judgement is followed in the case of Bindraban
Kanhaiyalal Agarwal v. Kasturilal Nyahalchand Sodi
and others, 1978 Mh.L.J. 561 by emphasising that it is
the value of the claim in the plaint which determines
pecuniary jurisdiction of a Court and if a suit is
properly filed in competent Court there is no bar to
prevent the Court from passing a decree for an amount
in excess of its pecuniary jurisdiction. Jurisdiction is
determined by valuation in plaint and not by result of
the suit.
22. The Full Bench of Calcutta High Court has clearly
laid down in the case of Bidyadhar Bachar and others v.
Manindra Nath Das and others that where a Judge has
in the proper exercise of his jurisdiction passed a
decree for possession and also a preliminary decree for
mesne profits, he must be held to have jurisdiction to
make a final decree in accordance with his decision.
This jurisdiction is not limited. If, as a result of the
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inquiry directed by him, the mesne profits are found to
exceed the amount of his pecuniary jurisdiction as
regards the value of the suit, the suit is rightly
entertained as within the jurisdiction of the Judge and
a decree is passed, his power to grant the proper and
adequate relief is not affected by any event which
increases the value of the relief during the pendency of
the suit.
23. In other words, it can be stated that to hold that
jurisdiction should depend on the amount for which the
final decree is passed, would have the effect and the
after the Judge passes a preliminary decree it is found
after accounts are taken that the final decree must be
for an amount exceeding the pecuniary limit of
jurisdiction the entire proceedings before him including
the decree passed should be considered as being
without jurisdiction. The forum of appeal is determined
with reference to the value of the suit and not the
amount decreed. The plaintiff is neither required nor
bound to state any amount in his application.
(Emphasis supplied)
14 In the case of Nirmal Quality Products (supra) the facts were that
the suit in question was filed for recovery of Rs.55,596.01 it was partly decreed
for Rs.41,266.38 with future interest on principal amount. In view of the part
decreeing of the suit, the Defendants preferred an Appeal to the District Court
as at the relevant time the District Court had the jurisdiction for trying a suit
up to Rs.50,000/.
The suit was originally valued at Rs.55,596.01. The decree
passed by the District Court was set aside by a Learned Single Judge of this
Court in the Second Appeal as being a nullity and the learned District Judge
was directed to return the Memorandum of Appeal to the appellants for
presentation before the appropriate court. In the case of Teofilo Barreto
(supra) it was held that it is the Plaintiffs valuation in the plaint which controls
and governs the jurisdiction not only of the Trial Court but also that of the
Appellate Court. The learned Single Judge in Teofilo Barreto's case placed
reliance on the judgment of the Full Bench of this Court in Kazi Syed
Saifuddin's cases which he has referred to in Paragraph No.46 of his judgment.
15 The learned Senior Counsel Shri Kumbhakoni also cited judgments
which were also upholding the same proposition that it is the valuation in the
plaint that would determine the Appellate forum and not the decree that is
passed. The said judgments are :in
the case of Ahmedbhai Kadubhai v/s.
Badruddin1 The said concerns a administration suit which is a suit for
accounts governed by Section 7(iv)(f) of the Bombay Courts Fees Act. The said
administration suit for the purposes of court fees was valued at Rs.130 but by
mistake valued at Rs.5500 for the purposes of jurisdiction and the decree was
passed for Rs.25,000 odd. The learned Single Judge held that it is value of the
subject matter of the suit that must decide the Court to which an Appeal would
lie. The learned Single Judge further went on to observe that if the Court to
which an Appeal lies was to be decided by the amount for which a decree has
been passed numerous complications are likely to arise. The second judgment
cited by the learned Senior Counsel was in the case of Kiran Singh and others
v/s. Chaman Paswan and others 2 , wherein the suit for ejecting the
1 A.I.R. (33) 1946 Bombay 356
2 (1955) 1 SCR 117
Defendants and for mesne profits was valued at Rs.2950, made up of
Rs.2950/being
the value of the suit for possession and Rs.1000 being the past
mesne profits claimed. The suit came to be dismissed. The District Court also
dismissed the Appeal. The matter was carried by way of Second Appeal to the
High Court. In the High Court for the first time, an objection was taken to the
valuation in the plaint and after inquiry the Court determined that the correct
value of the suit was Rs.9980/The
Plaintiff according paid the additional
court fees required of them and raised the contention that on the revised
valuation, the Appeal from the decree of the subordinate Judge would like not
the District Court but to the High Court and that accordingly the Second
Appeal should be heard as a First Appeal, ignoring the judgment of the District
Court. The High Court held that the Appeal to the District Court was
competent and that its decision could be reversed only if the appellants could
establish prejudice on the merits and holding that on a consideration of the
evidence no such prejudice had been shown. The Second Appeal was
dismissed by the High Court. The Apex court confirmed the judgment of the
High Court.
16 Applying the said principle laid down for determining the
Appellate forum, by the judgments (supra), to the instant case, since in the
instant case the suit was valued for the purposes of jurisdiction at Rs.1004/,
it
would be the District Court that would be the Appellate forum for challenging
the decree passed by the Trial Court.
17 In so far as the judgment of the learned Single Judge of the
Madras High Court is concerned, in the said case an objection was taken to the
valuation of the suit at the inception and an order came to be accordingly
passed at the interim stage directing the Plaintiffs to correct the valuation. The
Plaintiffs had accordingly raised the valuation and had also paid the court fees
on it. Aggrieved by the decree passed in the suit, the Plaintiffs sought to
amend the plaint in so far as the valuation is concerned and thereby choose the
appellate form on the basis of the suit as originally valued i.e. prior to its
revision. This was found fault with by the learned Single Judge of the High
Court by holding that the challenge to the valuation would not determine the
Appellate forum and that the Appellate forum in the said case would be as per
the valuation of the suit which in the said case was the revised valuation of the
suit. In my view, therefore, the facts of the said case stand apart from the facts
of the instant case as in the instant case the Plaintiffs have challenged the
decree passed in so far as Issue No.6 is concerned before the Appellate Court
and has thereby not accepted the finding recorded by the Trial Court in respect
of the valuation. That apart the general proposition of law which has been laid
down by the judgments cited (supra) is that the Appellate forum is determined
on the basis of the valuation as originally set out in the plaint and not on the
basis of the contents of the decree. It is therefore not possible to accept the
contention of the learned counsel for the Petitioner that the valuation corrected
by the Trial Court would relate back to the date of the filing of the Suit and
therefore the Appellate forum would have to be decided on the said basis. It
would be another matter if the Plaintiffs accept the finding as regards the
valuation recorded by the Trial Court and file an Appeal based on the said
valuation. However, such being not the instant case, it is therefore not
necessary to consider such a situation.
18 In my view, the application of the said proposition of law results in
uniformity in so far as the Appellate forum is concerned, as otherwise it would
happen that the Plaintiffs may choose one Appellate forum and the Defendants
another. Hence though the valuation for the purposes of court fees would
change in a given case, for the purposes of jurisdiction it would remain the
same. Such a scenario cannot be said to be alien to the legal frame work which
is applicable to the valuation of the suit. The learned Senior Counsel Shri
Kumbhakoni is therefore right in submitting that the valuation a suit for the
purposes of payment of court fees and for the purposes of jurisdiction should
not be confused with each other.
19 In the light of the aforesaid, the impugned order passed by the
Lower Appellate Court allowing the said Applications Exhibits 9 and 14 would
have to be quashed and set aside and is accordingly quashed and set aside.
The result would be that in so far as the Appeal filed against the decree dated
23/10/2008 passed by the Trial Court is concerned, the District Court, Pune
would be the Appellate forum. The above Petition is allowed. Rule is
accordingly made absolute in the aforesaid terms with parties to bear their
respective costs.
20 Finally a word of appreciation for the assistance rendered by
learned Senior Counsel Shri A A Kumbhakoni would not be out of place, who
did so most willingly and at short notice.
[R.M.SAVANT, J]
down by the judgments cited (supra) is that the Appellate forum is determined
on the basis of the valuation as originally set out in the plaint and not on the
basis of the contents of the decree.
In my view, the application of the said proposition of law results in
uniformity in so far as the Appellate forum is concerned, as otherwise it would
happen that the Plaintiffs may choose one Appellate forum and the Defendants
another. Hence though the valuation for the purposes of court fees would
change in a given case, for the purposes of jurisdiction it would remain the
same. Such a scenario cannot be said to be alien to the legal frame work which
is applicable to the valuation of the suit. The learned Senior Counsel Shri
Kumbhakoni is therefore right in submitting that the valuation a suit for the
purposes of payment of court fees and for the purposes of jurisdiction should
not be confused with each other.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.654 OF 2011
Sagar Dattatraya Sakhare ]
Versus
Shri Sanjay Waman Sathe ]
CORAM : R. M. SAVANT, J.
Pronounced on : 26th June 2014
Citation; 2015(3) ALLMR667
1 A short question which arises for consideration in the above
Petition is, whether the forum of Appeal is to be determined on the basis of the
value of the subject matter of the Suit as determined by the Trial Court in the
decree or on the basis of the valuation of the suit as originally set out in the
plaint.
FACTUAL MATRIX
2 The above Petition is directed against the order dated 13/10/2010
passed by the learned District Judge12,
Pune by which order the Applications
Exhibits 9 and 14 filed in Civil Appeal No.758 of 2008 by the Respondents
herein came to be allowed and the Memo of Appeal was directed to be
returned to the Petitioners herein for presentation before the appropriate
forum. The Petitioners herein are the original Plaintiffs and the Respondents
herein are the original Defendants. The parties would be referred to as per
their status in the Trial Court.
3 The Plaintiffs had filed the suit in question being Regular Civil Suit
No.1171 of 2006 against the Defendants for seeking a declaration that the Gift
Deed dated 10/11/2005 executed by the Defendant Nos.2 and 3 in favour of
the Defendant No.1 in respect of the suit properties be declared as illegal, null
and void, and not binding on the Plaintiffs, and the same be cancelled. The
Plaintiffs had also sought the relief of partition of the suit properties and
permanent injunction. It was the case of the Plaintiffs that the Defendant No.2
has two sons one Dattatraya who had expired, and the Defendant No.6. The
Plaintiffs claimed through the said Dattatraya being his son and widow. The
Defendant No.3 is the wife of Defendant No.2 and the Defendant No. 6 is the
father of Defendant Nos.4 and 5. The Defendant No.1 in whose favour the Gift
Deed has been executed by the Defendant Nos.2 and 3 is the grandson
of the
Defendant Nos.2 and 3 being the son of their daughter one Chandrabhaga
Waman Sathe. According to the Plaintiffs a registered deed of partition came
to be executed on 13/9/2002 with the consent of the sister of the Defendant
No.2. It was the case of the Plaintiffs that in terms of the Partition Deed, the
Defendant No.2 though having a share in the properties being Survey No.
5/10/, 79/2, 102/2 and 116/2, had agreed that he would not transfer the
same during his life time and after his demise 1/2 share will come to the
Plaintiffs and 1/2 will go to the Defendant Nos.4 and 5. It was the case of the
Plaintiffs that despite the said Partition Deed, the Defendant Nos.2 and 3
executed the registered Gift Deed in favour of the Defendant No.1 on
10/11/2005 not only in respect of the suit properties but also in respect of the
land bearing Survey No.133/5 in violation and breach of the Partition Deed
and therefore the suit has been filed by the Plaintiffs claiming partition of their
1/3rd share in Survey No.133/5, and seeking declaration that the Gift Deed
executed by the Defendant Nos.2 and 3 in favour of the Defendant No.1 is
illegal, null and void and not binding on the Plaintiffs.
4 The Defendant Nos.1 to 3, 5 and 6 filed their Written Statement,
however, denied the case of the Plaintiffs and also denied any restriction on
their capacity to transfer the suit properties and it was their case that the
Defendant No.2 had become the absolute owner of the properties assigned to
his share and therefore the Plaintiff No.1 and the Defendant Nos.5 and 6
cannot have any claim.
5 The parties went to trial, the Trial Court by the judgment and
order dated 23/10/2008 partly decreed the suit and thereby declared the Gift
Deed executed by the Defendant Nos.2 and 3 in favour of the Defendant No.1
as illegal, null and void and not binding upon the Plaintiffs, and further
granted Temporary Injunction. Whilst decreeing the suit, the Trial Court also
recorded a finding that the suit was not properly valued and held that since the
Gift Deed was covering a property which was worth Rs.18,06,000/is
challenged, the suit had to be valued on the said basis and, accordingly
directed the Plaintiffs to pay the deficit court fees.
6 The Defendant Nos. 1 to 3, 5 and 6 filed a First Appeal in this
Court being First Appeal No.334 of 2010 against the decree passed by the Trial
Court dated 23/10/2008. The Petitioners herein i.e. the Plaintiffs filed Regular
Civil Appeal No.758 of 2008 in the District Court, Pune challenging the decree
in so far as the finding recorded on Issue No.6 against them, viz. whether the
suit is properly valued. The Assistant Superintendent of the District Court,
Pune on the basis of the finding recorded on Issue No.6 observed that it would
be necessary to ascertain whether the Appeal filed in the District Court was
maintainable. However, the learned District Judge6
by his order dated
10/12/2008 took a view that the court fees would have to be paid at the rate
of ½ of ad volorem fee leviable on the value of the property. The learned
District Judge further held that if the declaration is sought that a sale, contract
for sale or a termination of contract for sale of any movable or immovable
property is void, and if the same is in respect of the Gift Deed, the suit is
required to valued as per Section 6(iv)(j) of the Bombay Court Fees Act, and
therefore, the Appeal was maintainable. According to the learned District
Judge the valuation of the suit being less than Rs.2,00,000/.
The Appeal filed
in the District Court was maintainable.
7 After the said order dated 10/12/2008 was passed by the learned
District Judge6
Pune, the Respondent No.1 herein filed an Application Exhibit
9 in the said Civil Appeal No.758 of 2008. The Respondent Nos.2 and 3 herein
also filed a similar Application Exhibit 14 seeking direction that the Appeal
filed by the Petitioners herein be returned to the Petitioners for being presented
in the High Court and to further hold that the Appeal is not maintainable in the
District Court and to hold that the subject matter of the suit exceeded
Rs.2,00,000/and
therefore the District Court had no jurisdiction to entertain
the Civil Appeal. It seems that on 14/09/2010 the First Appeal filed by the
Respondents being First Appeal No334 of 2010 against the decree passed by
the Trial Court came up for hearing before a Division Bench of this Court. The
Division Bench of this Court, in view of the Applications Exhibit 9 and Exhibit
14 directed the Lower Appellate Court i.e. the learned District Judge to decide
the Applications Exhibit 9 and Exhibit 14 on their own merits and in
accordance with law within the time stipulated in the said order. The learned
District Judge12,
Pune accordingly took up the said Applications Exhibit 9 and
Exhibit 14 and held that in view of the finding recorded on Issue No.6 by the
Trial Court, the Appeal would have to be returned to the Petitioners for being
presented before the appropriate forum. The learned District Judge12
accordingly allowed the Applications Exhibit 9 and Exhibit 14 by his order
dated 13/10/2010.
8 The gist of the reasoning of the learned District Judge was that the
Appeal being a continuation of the suit, the Court had the powers to revise the
valuation under Section 8 of the Suits Valuation Act and hence though at the
time of the admission of the Appeal an order was passed that the valuation of
the suit is below Rs.2,00,000/and
therefore the District Court was the
Appellate forum, the said was liable to be corrected, if the question has been
wrongly decided to the detriment of the revenue and then the Court can call
upon the party to pay the additional court fee, the learned District Judge held
that having regard to subsection 2 of Section of Section 14 of the Suits
Valuation Act, the decision as regards the valuation has become final between
the parties and therefore for the purposes of determining of the forum of
Appeal, the valuation of the suit has to be held beyond Rs.2,00,000/.
The
learned District Judge has held that in terms of Section 26 of the Bombay Civil
Courts Act the Appeal would not lie before the District Court. As indicated
above, he learned District Judge accordingly allowed the Applications Exhibits
9 and 14 and directed that the memo of Appeal be returned to the appellant
for presentation before the appropriate forum. It is the said order dated
13/10/2010 passed on the Applications Exhibit 9 and Exhibit 14 which is taken
exception to by way of the above Writ Petition.
9 Heard the learned counsel for the parties. The principal
contention of the learned counsel appearing for the Petitioners original
Plaintiffs Shri Kulkarni was that the forum of Appeal has to be determined on
the basis of the valuation of the suit when originally filed and not on the basis
of the decree passed. The learned counsel would contend that the Lower
Appellate Court had therefore erred in holding that the valuation would be in
terms of the finding which has been recorded on Issue No.6 by the Trial Court
and therefore the Appellate forum would not be the District Court. The
learned counsel for the Petitioners placed reliance on the Full Bench Judgment
of this Court in the case of Kazi Sayed Saifudding v/s. Kasturichand
Abhayrajji Golchha1, the judgments of two learned Single Judges of this
Court in Nirmal Quality Products v/s. M/s. Contey Industries and another2
and in Teofilo Barreto v/s. Sadashiv G Nasnodkar and others.3 The learned
counsel for the Petitioners Shri Kulkarni would next contend that the
Petitioners i.e. the original Plaintiffs have filed an Appeal against the decree
passed by the Trial Court wherein the finding on Issue No.6 has been assailed
and therefore the said finding on issue No.6 is in question in the Appeal. The
learned counsel would contend that the reliance placed on behalf of the
Respondents herein i.e. the original Defendants on the judgment of a learned
Single Judge of Madras High Court in the case of Maddipati Ramanna alias
Tatabbayi and others v/s. Maddipati Subbarayudu and others 4 is misplaced
and the same would not aid the Respondents in support of their case that the
valuation has to be on the basis of the finding in respect of the valuation
1 1999(2) Mh.L.J.675
2 1995(1) Mh.J.J.189
3 2007(3) Mh.L.J.850
4 AIR (38) 1951 Madras 886(2)
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recorded by the Trial Court in the decree.
10 Per contra, the learned counsel appearing on behalf of the
Respondent Nos.1 to 3 i.e. the original Defendants Shri T D Deshmukh would
submit that since the suit was erroneously valued, at the instance of the
Defendants that the issue regarding valuation was framed and since same has
been answered against the Plaintiffs, the Plaintiffs have accordingly been
directed to pay court fee on Rs.18,06,000/,
the said valuation would relate
back to the filing of the suit and therefore the Appellate forum would have to
be decided on the said basis. The learned counsel would contend that in a
somewhat identical situation, a learned Single Judge of the Madras High Court
in the judgment in the case of Maddipati Ramanna (supra) has held that
where the Plaintiff revises in obedience to an order of the Court directing him
to pay the court fees, the valuation as finally adopted in the plaint and not the
one originally mentioned will determine the forum of Appeal. The learned
counsel would submit that in the instant case Court has come to a conclusion
that the suit has been wrongly valued and accordingly directed the Plaintiffs to
pay the court fee on the amount of Rs.18,06,000/which
was the subject
matter of the suit, the suit would have to be valued accordingly which would
accordingly determine the Appellate forum. The learned counsel would
contend that though the Lower Appellate Court had initially at the time of
admission of the Appeal had held that the valuation is under Rs.2,00,000/,
the
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same was liable to be corrected as the Court has ample powers under Section
14 of the Bombay Court Fees Act to do so. The learned counsel would contend
that the Lower Appellate Court has accordingly rightly held that the valuation
would have to be in terms of the finding which has been recorded by the Trial
Court on Issue No.6, and therefore, directed that the Appeal be returned to the
appellant for being presented in the appropriate forum.
The learned counsel Shri Paranjape for the Respondent Nos. 4 to 6
adopted the submissions of the learned counsel for the Petitioner.
11 The learned Senior Counsel Shri A.A.Kumbhakoni was requested
to assist this Court in adjudicating the above issue. He willingly consented to
the same and made the following submissions :The
learned Senior Counsel would contend that the valuation of
the suit for the purposes of the payment of court fees and for the purposes of
jurisdiction ought not to be confused with each other. This more particularly
for deciding the issue of jurisdiction of appellate court to try and decide the
Appeal. The learned Senior Counsel would contend that though Section 8 of
the Suits Valuation Act specifically lays down that valuation of a suit for court
fees and valuation for jurisdiction must generally be the same, the said
provision itself carves out the exceptions where the valuation between the two
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may differ, thus in exceptional cases, value for court fee and value for
jurisdiction of the suit may differ. The learned Senior Counsel would contend
that the same is exemplified by the fact that the parties to a suit may file
Appeals aggrieved by different parts of the decree. If the suit is partly decreed,
the Plaintiff would file an Appeal against that part of the decree which has
been refused whereas the Defendant may file an Appeal against the part of the
decree which has been allowed. Hence in so far as the valuation of the Appeals
for the purposes of court fees is concerned they would differ however in so far
as the valuation for the purposes of jurisdiction, it would be the same and
identical to the manner in which the suit is valued. The learned Senior
Counsel would contend that in the instant case, the finding rendered on Issue
No.6 seems to be more aimed at the valuation of the suit for the purposes of
court fees rather than the valuation of the suit for the purposes of jurisdiction.
The learned Senior Counsel would contend that in the instant case the Court
may not have adjudicated the issue from the point of jurisdiction since it was
the court of learned Civil Judge, Senior Division who had unlimited jurisdiction
in terms of the value of the suit. The learned Senior Counsel would contend
that the end result is that in spite of the aforesaid finding of the Trial Court in
respect of the improper valuation of the suit, the suit continues to be valued for
the purposes of jurisdiction in the way it was since the beginning i.e. for an
amount of Rs.1,000/plus
Rs.4/as
is clear from the plaint. The learned Senior
Counsel would contend that the instant case stands on a different footing than
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the case before the learned Single Judge of the Madras High Court in
Maddipati Ramanna's case, as in the instant case the Plaintiffs have
questioned the finding recorded by the Trial Court on the said Issue No.6
whereas in the case before the Madras High Court the Plaintiffs had accepted
and corrected the valuation in terms of the order passed by the Trial Court and
it is thereafter at the appellate stage that the Plaintiffs had sought to question
the revised valuation. The learned Senior Counsel would contend that the fact
that the Plaintiff is unable to value the suit properly when it is filed or whether
the Plaintiff has deliberately undervalued/overvalued the suit at the time of
filing of the suit, the same would not change the position of law inasmuch as
the jurisdiction of the appellate court is concerned. The jurisdiction of the
Appellate forum would be continued to be governed by the valuation of the
suit for the purposes of jurisdiction, as made by the Plaintiff, at the stage of
filing of an Appeal. It is only if the valuation of the suit for the purposes of
jurisdiction is either enhanced or reduced, such an amended valuation of the
suit would decide the jurisdiction of the Appellate forum, as in such a case an
amendment relates back to the date of filing of the suit. The learned Senior
Counsel would contend that the common thread in all the judgments cited
(supra) on behalf of the parties is that the valuation of the suit determines the
forum of the Appeal and not the valuation of the decree, and that the forum of
Appeal is to be determined upon the value as found by the Court has not been
accepted by all the High Courts.
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12 Having heard the learned counsel for the parties, I have
considered the rival contentions. As indicated above the issue which arises for
consideration whether the finding recorded by the Trial Court in respect of the
valuation of the suit would determine the Appellate forum in the instant case.
In the instant case the Plaintiffs had valued the suit at Rs.1004/for
the
purposes of court fees and jurisdiction. The said valuation was objected to on
behalf of the Defendant Nos. 1 to 3. In view thereof, the Trial Court had
framed Issue No.6 which was to the following effect :“
Whether the Plaintiffs
have properly valued the suit?”, and the answered the same in the negative.
The said finding of the Trial Court is recorded in Paragraph No.20 of its
judgment dated 23/10/2008 which for the sake of convenience is reproduced
herein under :“
Admittedly, the Plaintiffs have challenged the gift deed
dated 10.11.2005 executed by Defendants No.2 and 3
in favour of the Defendant No.1, but, it is a fact that,
Plaintiffs have not shown the market value of the suit
properties, for the better reasons known to them.
According to the Defendants, the market value as
shown in the said Gift Deed is Rs.18,06,000/and
therefore the suit falls under Section 6(iv)(ha) of the
Bombay Court Fees Act and thus, further concluded
that the calculation of the Court fees by the Plaintiffs
under Section 6(iv)(j) is not just and proper. I do not
find substance in the submission of the Defendants and
therefore I hold that the Plaintiffs ought to have paid
the Court fees, considering the market value shown in
the Gift Deed as Rs.18,06,000/under
section 6(iv)(ha)
of the Bombay Court Fees Act, 1959. Therefore, they
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should deposit deficit court fees accordingly. With this
observation, I have no hesitation to answer this issue in
the negative.”
The Plaintiffs were accordingly directed to pay the deficit court fees. In so far
as the Plaintiffs are concerned, they have taken exception to the said decree by
filing an Appeal in the District Court whereas the Defendants have taken
exception to the decreeing of the suit for specific performance against them by
filing a First Appeal in this Court. It is in the said First Appeal that a direction
came to be issued to the learned District Judge before whom the Appeal filed
by the Plaintiffs is pending directing the learned District Judge to decide the
applications Exhibits 9 and 14 which have accordingly be decided by the order
impugned in the present Petition.
A reference is required to be made to Section 8 of the Suits
Valuation Act, 1887.
“Section 8: Court fee value and jurisdictional
value to be the same in certain suitsWhere
in
suits other than those referred to in the Courtfees
Act, 1870 (7 of 1870) Section 7, paragraph
v, vi and ix, and paragraph x, clause (d) court
fees are payable ad valorem under the Courtfees
Act, 1870 (7 of 1870), the value as determinable
for the computation of Courtfees
and the value
for purposes of jurisdiction shall be the same.”
13 At this stage, it is required to be noted that though Section 8
postulates that valuation for the purposes of Court fees and jurisdiction must
generally be the same. The said provision itself carves out the exceptions to
the said Rule. Thus in some type of cases which have been mentioned in the
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said provision the valuation for the purposes of court fees and jurisdiction may
differ. The reference to the said provision is required to be made as the Trial
Court in its finding recorded in Paragraph 20 or in the operative part of its
judgment has not directed the Plaintiffs to correct the valuation for the
purposes of jurisdiction but has only directed the Plaintiffs to pay the deficit
court fees as per the valuation which has been arrived at by the Trial Court.
This may probably have been done by the Trial Court as the Trial Court was the
Court of the Civil Judge Senior Division which has unlimited jurisdiction.
However, the question still remains is, whether the Appellate forum would
have to be decided on the basis of the finding recorded by the Trial Court on
the aspect of valuation or in terms of the valuation as it originally exist in the
suit. It is required to be noted that in the judgments (supra) cited on behalf of
the parties i.e. by the learned counsel for the Petitioners and the learned Senior
Counsel Shri Kumbhakoni, the common thread running in all the said
judgments is that the forum of Appeal is to be determined on the basis of the
valuation in the plaint and not on the basis of the decree passed. The said view
therefore seems to be a consistent view on the said aspect. It would therefore
be apposite to consider the said judgments at this stage. In the case before the
Full Bench of this Court in Kazi Syed Saifuddin (supra) the issue was whether
the forum of Appeal would be determined on the quantum of mesne profits as
decreed. The Full Bench answered the said issue by holding that the forum of
Appeal for challenging the decree of eviction that has been based would not be
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determined on the basis of the mesne profits which have been determined
pursuant to an enquiry under Order 20 Rule 12(1)(c) of the Code of Civil
Procedure but would be determine on the valuation in the plaint as originally
filed. Paragraph Nos.21 to 23 of the said Report are material and are
reproduced herein under :21.
The argument of the learned Counsel for the
appellant, if accepted, is likely to give rise to certain
anomalous position. In a suit for accounts filed by a
sleeping partner he may not be aware at all of the
nature of profits and his possible share. Even if aware,
the law permits him to notionally value the claim in the
plaint. If such a suit is dismissed, then against the
decree on the basis of notional valuation in the plaint,
the appeal by defendant would definitely go to the
District Court. If the District Court reverses the decree
of dismissal and passes a decree for a sum which is
more than the limits of pecuniary jurisdiction of the
trial Court (Civil Judge, Jr. Dn.) then it may be
contended even at the appellate stage that the trial
Court had no jurisdiction to entertain the suit. Thus
after coming to the conclusion regarding the quantum
to be awarded finally to the plaintiff, the Appellate
Court will have to return the plaint for presentation to
the proper Court. Similar is the case of claim in respect
of future mesne profits. Further mesne profits are by
their very nature profits or the income derived by the
defendant during the pendency of the suit. The cause of
action for the same does not accrue when the plaint is
presented and in order to enable the plaintiff, a proviso
is introduced to make a request to the Court for
direction regarding the inquiry into future mesne
profits, the quantum of which is not known to anybody
at that stage. If after inquiry into future mesne profits
the Court comes to a conclusion that the quantum to be
awarded is beyond the pecuniary limits of the
jurisdiction then it may be contended successfully that
the Court had no jurisdiction to pass the preliminary
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decree as one of the claims made in the paint was
beyond the pecuniary jurisdiction of that Court.
However, in the same case, an appeal against the
dismissal of the suit would nevertheless lie to the
District Court. Similarly, in a suit for accounts, the law
permits the plaintiff to make a notional valuation and,
as already discussed, the valuation for the purpose of
jurisdiction is the same which is the valuation for the
purpose of Court Fees as it permitted by law. If the
contention that the forum of appeal is dependent on
the final adjudication of the matter regarding the
quantum of accounts or on the final decree then the
preliminary decree may be challenged as one without
jurisdiction and non est. In fact, in order to avoid such
eventualities, provision has been made permitting the
plaintiff to have a notional valuation and to pay the
fixed Court Fees and the valuation for the purpose of
jurisdiction is also to be the same. It is for these simple
reasons, in the decision in Ambadas v. Vishnu Govind ,
the Division Bench of this Court has held that the mere
fact that the decree is for an amount exceeding the
pecuniary jurisdiction of the Court which passed the
decree, is not ipso facto proof that it was beyond
jurisdiction and a nullity and the Court is wrong in
questioning in execution the validity of such a decree.
This judgement is followed in the case of Bindraban
Kanhaiyalal Agarwal v. Kasturilal Nyahalchand Sodi
and others, 1978 Mh.L.J. 561 by emphasising that it is
the value of the claim in the plaint which determines
pecuniary jurisdiction of a Court and if a suit is
properly filed in competent Court there is no bar to
prevent the Court from passing a decree for an amount
in excess of its pecuniary jurisdiction. Jurisdiction is
determined by valuation in plaint and not by result of
the suit.
22. The Full Bench of Calcutta High Court has clearly
laid down in the case of Bidyadhar Bachar and others v.
Manindra Nath Das and others that where a Judge has
in the proper exercise of his jurisdiction passed a
decree for possession and also a preliminary decree for
mesne profits, he must be held to have jurisdiction to
make a final decree in accordance with his decision.
This jurisdiction is not limited. If, as a result of the
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inquiry directed by him, the mesne profits are found to
exceed the amount of his pecuniary jurisdiction as
regards the value of the suit, the suit is rightly
entertained as within the jurisdiction of the Judge and
a decree is passed, his power to grant the proper and
adequate relief is not affected by any event which
increases the value of the relief during the pendency of
the suit.
23. In other words, it can be stated that to hold that
jurisdiction should depend on the amount for which the
final decree is passed, would have the effect and the
after the Judge passes a preliminary decree it is found
after accounts are taken that the final decree must be
for an amount exceeding the pecuniary limit of
jurisdiction the entire proceedings before him including
the decree passed should be considered as being
without jurisdiction. The forum of appeal is determined
with reference to the value of the suit and not the
amount decreed. The plaintiff is neither required nor
bound to state any amount in his application.
(Emphasis supplied)
14 In the case of Nirmal Quality Products (supra) the facts were that
the suit in question was filed for recovery of Rs.55,596.01 it was partly decreed
for Rs.41,266.38 with future interest on principal amount. In view of the part
decreeing of the suit, the Defendants preferred an Appeal to the District Court
as at the relevant time the District Court had the jurisdiction for trying a suit
up to Rs.50,000/.
The suit was originally valued at Rs.55,596.01. The decree
passed by the District Court was set aside by a Learned Single Judge of this
Court in the Second Appeal as being a nullity and the learned District Judge
was directed to return the Memorandum of Appeal to the appellants for
presentation before the appropriate court. In the case of Teofilo Barreto
(supra) it was held that it is the Plaintiffs valuation in the plaint which controls
and governs the jurisdiction not only of the Trial Court but also that of the
Appellate Court. The learned Single Judge in Teofilo Barreto's case placed
reliance on the judgment of the Full Bench of this Court in Kazi Syed
Saifuddin's cases which he has referred to in Paragraph No.46 of his judgment.
15 The learned Senior Counsel Shri Kumbhakoni also cited judgments
which were also upholding the same proposition that it is the valuation in the
plaint that would determine the Appellate forum and not the decree that is
passed. The said judgments are :in
the case of Ahmedbhai Kadubhai v/s.
Badruddin1 The said concerns a administration suit which is a suit for
accounts governed by Section 7(iv)(f) of the Bombay Courts Fees Act. The said
administration suit for the purposes of court fees was valued at Rs.130 but by
mistake valued at Rs.5500 for the purposes of jurisdiction and the decree was
passed for Rs.25,000 odd. The learned Single Judge held that it is value of the
subject matter of the suit that must decide the Court to which an Appeal would
lie. The learned Single Judge further went on to observe that if the Court to
which an Appeal lies was to be decided by the amount for which a decree has
been passed numerous complications are likely to arise. The second judgment
cited by the learned Senior Counsel was in the case of Kiran Singh and others
v/s. Chaman Paswan and others 2 , wherein the suit for ejecting the
1 A.I.R. (33) 1946 Bombay 356
2 (1955) 1 SCR 117
Defendants and for mesne profits was valued at Rs.2950, made up of
Rs.2950/being
the value of the suit for possession and Rs.1000 being the past
mesne profits claimed. The suit came to be dismissed. The District Court also
dismissed the Appeal. The matter was carried by way of Second Appeal to the
High Court. In the High Court for the first time, an objection was taken to the
valuation in the plaint and after inquiry the Court determined that the correct
value of the suit was Rs.9980/The
Plaintiff according paid the additional
court fees required of them and raised the contention that on the revised
valuation, the Appeal from the decree of the subordinate Judge would like not
the District Court but to the High Court and that accordingly the Second
Appeal should be heard as a First Appeal, ignoring the judgment of the District
Court. The High Court held that the Appeal to the District Court was
competent and that its decision could be reversed only if the appellants could
establish prejudice on the merits and holding that on a consideration of the
evidence no such prejudice had been shown. The Second Appeal was
dismissed by the High Court. The Apex court confirmed the judgment of the
High Court.
16 Applying the said principle laid down for determining the
Appellate forum, by the judgments (supra), to the instant case, since in the
instant case the suit was valued for the purposes of jurisdiction at Rs.1004/,
it
would be the District Court that would be the Appellate forum for challenging
the decree passed by the Trial Court.
17 In so far as the judgment of the learned Single Judge of the
Madras High Court is concerned, in the said case an objection was taken to the
valuation of the suit at the inception and an order came to be accordingly
passed at the interim stage directing the Plaintiffs to correct the valuation. The
Plaintiffs had accordingly raised the valuation and had also paid the court fees
on it. Aggrieved by the decree passed in the suit, the Plaintiffs sought to
amend the plaint in so far as the valuation is concerned and thereby choose the
appellate form on the basis of the suit as originally valued i.e. prior to its
revision. This was found fault with by the learned Single Judge of the High
Court by holding that the challenge to the valuation would not determine the
Appellate forum and that the Appellate forum in the said case would be as per
the valuation of the suit which in the said case was the revised valuation of the
suit. In my view, therefore, the facts of the said case stand apart from the facts
of the instant case as in the instant case the Plaintiffs have challenged the
decree passed in so far as Issue No.6 is concerned before the Appellate Court
and has thereby not accepted the finding recorded by the Trial Court in respect
of the valuation. That apart the general proposition of law which has been laid
down by the judgments cited (supra) is that the Appellate forum is determined
on the basis of the valuation as originally set out in the plaint and not on the
basis of the contents of the decree. It is therefore not possible to accept the
contention of the learned counsel for the Petitioner that the valuation corrected
by the Trial Court would relate back to the date of the filing of the Suit and
therefore the Appellate forum would have to be decided on the said basis. It
would be another matter if the Plaintiffs accept the finding as regards the
valuation recorded by the Trial Court and file an Appeal based on the said
valuation. However, such being not the instant case, it is therefore not
necessary to consider such a situation.
18 In my view, the application of the said proposition of law results in
uniformity in so far as the Appellate forum is concerned, as otherwise it would
happen that the Plaintiffs may choose one Appellate forum and the Defendants
another. Hence though the valuation for the purposes of court fees would
change in a given case, for the purposes of jurisdiction it would remain the
same. Such a scenario cannot be said to be alien to the legal frame work which
is applicable to the valuation of the suit. The learned Senior Counsel Shri
Kumbhakoni is therefore right in submitting that the valuation a suit for the
purposes of payment of court fees and for the purposes of jurisdiction should
not be confused with each other.
19 In the light of the aforesaid, the impugned order passed by the
Lower Appellate Court allowing the said Applications Exhibits 9 and 14 would
have to be quashed and set aside and is accordingly quashed and set aside.
The result would be that in so far as the Appeal filed against the decree dated
23/10/2008 passed by the Trial Court is concerned, the District Court, Pune
would be the Appellate forum. The above Petition is allowed. Rule is
accordingly made absolute in the aforesaid terms with parties to bear their
respective costs.
20 Finally a word of appreciation for the assistance rendered by
learned Senior Counsel Shri A A Kumbhakoni would not be out of place, who
did so most willingly and at short notice.
[R.M.SAVANT, J]
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