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1906 DIGILAW 62 (ALL)

Khurshed JanZaer Husain Khan v. Khurshed Jan

1906-03-30

AIKMAN, BURKITT, STANLEY

body1906
JUDGMENT : AIKMAN, J. The appellant, Nawab Zaer Husain Khan, instituted a suit in the Court of the Munsif of Allahabad against his wife for restitution of conjugal rights. He valued his suit at Rs. 107. This was not altogether an arbitrary valuation, as it was based on the amount of dower fixed at the time of the marriage. 2. The Munsif following a recent decision of the Calcutta High Court, Aklem-un-nisa Bibi v. Mohammed Hatem [1904] I.L.R., 31 Cal., 849, held that he had no jurisdiction to entertain the suit, and returned the plaint for presentation to the proper Court. Against this order the plaintiff appealed, but his appeal was dismissed by the learned District Judge. The plaintiff now asks this Court to interfere in revision and direct the Munsif to receive the plaint. 3. Owing to the importance of the question raised, the case has been referred to a Full Bench, and it has been very fully and ably argued before us. 4. Until the decision of the Calcutta case relied on by the Courts below, the jurisdiction of a Munsif to try suits for the restitution of conjugal rights does not appear ever to Lave been questioned, provided that the valuation placed by the plaintiff on his suit was within the pecuniary limits of the Munsif's jurisdiction. In the Calcutta case the suit was instituted and heard by a Munsif without any objection being raised to his authority to hear it. The case was taken on appeal to the Subordinate Judge. No objection “was taken in that appeal as to the Munsif's jurisdiction. It was not until the case reached the High Court that the plea as to the jurisdiction was put forward. It was stated in the argument in the Calcutta case that it had always been the practice with Munsifs to try such suits and that no objections had ever been taken to this before. The Law Reports show that such cases are tried in the Munsifs Courts in the Madras Presidency. I have ascertained that such suits are tried in the Munsifs Court in the Punjab. They are tried by Munsifs in Oudh. In the Bombay Presidency there was no Munsif but suits for restitution of conjugal rights are filed in and heard by the Court of the 2nd class Subordinate Judge who corresponds with a Munsif as the Court of the lowest jurisdiction. They are tried by Munsifs in Oudh. In the Bombay Presidency there was no Munsif but suits for restitution of conjugal rights are filed in and heard by the Court of the 2nd class Subordinate Judge who corresponds with a Munsif as the Court of the lowest jurisdiction. There are numerous instances in the Law Reports of these Provinces in which second appeals in suits for restitution of conjugal rights, originally tried by Munsifs, came before this Court and in no case was any doubt thrown on the jurisdiction of the Munsif to hear such suits. The oldest case of this kind, which I have been able to find, is a case of 1855, reported in the Sudder Dewany Adawlat Reports of that year. I think that we ought to be cautious before we pronounce so long established and widely spread a practice of the Courts to be illegal, and that we ought not to do so unless the law on the subject is so clear as to leave no other alternative open to us. The existing law as to the jurisdiction of Civil Courts in these Provinces is to be found in Chapter III of the Bengal, N.W.P. and Assam Civil Courts Act No. XII of 1887. Section 18 of that Act gives jurisdiction to a District Judge or Subordinate Judge to hear all original suits for the time being cognizable by Civil Courts, but this is made subject to the provisions of section 15 of the Code of Civil Procedure, which enacts that every suit shall be instituted in the Court of the lowest grade competent to try all like suits of which the value does not exceed one thousand Rupees. The word “value” is not defined in the Act, but in the general Clauses Act, passed in this year, it is enacted by section 3(13) that “value” used with reference to suits shall mean “the amount or value of the subject-matter of the suit.” This definition, however, does not assist us in deciding the question before us. In the Calcutta case referred to above, the learned Judges on a consideration of the terms of sections 18 and 19 of the Act No. XII of 1887 held that a suit for restitution of conjugal rights is triable by a Subordinate Judge unless it can be shown that its value does not exceed one thousand Rupees. In the Calcutta case referred to above, the learned Judges on a consideration of the terms of sections 18 and 19 of the Act No. XII of 1887 held that a suit for restitution of conjugal rights is triable by a Subordinate Judge unless it can be shown that its value does not exceed one thousand Rupees. No doubt, a Subordinate Judge has jurisdiction, to try such a suit, but it appears to me that it may with equal force be argued that unless it can be shown that the value exceeds one thousand Rupees, it must in the first instance be instituted in the Court of the Munsif. It was argued before the learned Judges that a suit for restitution of conjugal rights was incapable of being valued, and this contention found favor with them. In the case before us the suit has been valued and, therefore, I think it is scarcely correct to say-that such a suit is incapable of being valued. It appears to me that it would be more accurate to characterize a suit of this nature as one, the subject-matter of which does not admit of being satisfactorily valued. The legislature (vide section 9 of the Suits Valuation Act, 1887) has recognized the existence of classes of suits, the subject-matter of which does not admit of being satisfactorily valued, and has given power to the High Court with the previous sanction of the Local Government to direct that such suits “shall be treated as if their subject-matter were of such value as the High Court thinks fit to specify in this behalf.” There are numerous classes of suits other than a suit for restitution of conjugal rights which do not admit of being satisfactorily valued, for example, suits to set aside an adoption and suits to obtain a declaratory decree where no consequential relief is claimed. This High Court has not as yet exercised the power given to it by section 9 of the Suits Valuation Act. Until this is done, I see no reason why the existing practice by which a plaintiff is allowed to put his own valuation on such a suit, subject to the power of the Court to refuse to accept the valuation if in its opinion it is not bona fide, should not be adhered to. Until this is done, I see no reason why the existing practice by which a plaintiff is allowed to put his own valuation on such a suit, subject to the power of the Court to refuse to accept the valuation if in its opinion it is not bona fide, should not be adhered to. After careful study of the language of the Bengal Civil Courts Act, I am of opinion that the Legislature took it for granted that a money value of some kind, it may be an arbitrary value, can be placed on all suits. I think the view is supported by the language of section 21 of the Act, which provides that an appeal from a decree or order of a Subordinate Judge shall lie to the District Judge where the value of the original suit did not exceed five thousand Rupees and to the High Court in any other case. It would follow as a logical consequence of the Calcutta decision that with the exception of the suits referred to in section 7(iv) of the Court Fees Act in which, though not capable of being satisfactorily valued, jurisdiction is, by virtue of section 8 of the Suits Valuation Act, 1887, made to depend on the value which the plaintiff chooses to put on the relief sought, it would follow, I say, with this exception that every suit, of however petty a nature, which is not capable of being satisfactorily valued, must be heard by a District or Subordinate Judge, and what a more serious consequence for poorer litigants that every appeal in such a suit would lie direct to the High Court. I should hesitate long before I came to the conclusion that this was the intention of the Legislature. 5. I think it may fairly be assumed that the Legislature knew from published reports and other sources that suits for restitution of conjugal rights were being heard by Munsifs, and that if they considered this practice objectionable, they would when amending the Civil Courts Acts have made the law clear on the point. In my opinion the word “value” in section 19 of Act No. XII of 1887, is capable of bearing the interpretation which has been hitherto put upon it, namely, the valuation put by the plaintiff on the relief sought by him. In my opinion the word “value” in section 19 of Act No. XII of 1887, is capable of bearing the interpretation which has been hitherto put upon it, namely, the valuation put by the plaintiff on the relief sought by him. The cases relied on by the learned Judges of the Calcutta High Court, Golam Rahman v. Fatima Bibi, [1886] I.L.R., 13 Cal., 232; Mowla Neivaz v. Sajid-un-nissa Bibi, [1891] I.L.R., 18 Cal., 378, and Shire v. Shire, [1845] 5 M.P.C., 81, S.C. 13 E.R., 420, are cases in which the right of appeal was in question. To such cases it appears to me a different set of considerations apply. Unless a right of appeal is clearly given by statute it does not exist, whereas a litigant has, independently of any statute, a right to institute any suit of a civil nature in some Court or other. In the last mentioned case, as also in the case D'Orliac v. D'Orliac [1844] 4 M.P.C., 374, S.C. 13 E.R., 347, their Lordships had to construe a charter of justice granted to the island of the Mauritius and to consider whether in the cases before them a right of appeal lay under that charter. If the language of the Act which we have to construe had been at all similar to the language of the charter, which was under the consideration of their Lordships, we should, of course, have been bound by the rulings in those cases. But the language in the charter is very different. It gives a right of appeal in cases where the value of the right at issue in the appeal amounts to one thousand pounds sterling and also in one particular class of cases on which a satisfactory pecuniary valuation could not be placed, viz., cases affecting the right or alleged right of any person to freedom. 1 am, therefore, of opinion that the remark of Lord Brougham in Shire v. Shire, where he said that every marriage involved a right which may be said to be beyond pecuniary value, is not conclusive on the question before us. 6. 1 am, therefore, of opinion that the remark of Lord Brougham in Shire v. Shire, where he said that every marriage involved a right which may be said to be beyond pecuniary value, is not conclusive on the question before us. 6. In the case Sheodeni Ram v. Tulshi Ram, [1893] I.L.R., 15 All, 378 it was held that the value for the purposes of jurisdiction of a suit to set aside an adoption is not the value of the property which may possibly change hands if the adoption be set aside, but the value put upon his plaint by the plaintiff. The learned Judges who decided the case said, “We are disposed to hold that it is for the plaintiff to put his own valuation on the relief which he claims”. In the case Jaglal v. Harnarain Singh, [1888] I.L.R., 10 All., 524 Mahmood, J., said, questions of jurisdiction, whether with reference to the nature of the suit or with reference to the pecuniary limits of the claim are matters to be governed by the statements contained in the plaint.” In the case Mahabir Singh v. Bihari Lal, [1891] I.L.R., 13 All., 320 it was held that for purposes of jurisdiction the amount of the subject-matter of the suit must mean the amount stated by the plaintiff in his plaint. In the case Madho Das v. Ramji Pathak, [1894] I.L.R., 16 All, 286 it was held that the pecuniary jurisdiction of a Civil Court, on its original and appellate side is, ordinarily speaking, as stated by the plaintiff in his plaint, unless it appears that either purposely or from gross neglect the true value had been altogether misrepresented in the plaint. In the case Lahshman Bhatkar v. Bavya Bhaikar, [1883] I.L.R., 8 Bom., 31 it was held that what prima facie determines the jurisdiction of a Court is the claim or subject-matter of the claim as estimated by the plaintiff, this being subject to the principle that the jurisdiction of the Court properly having cognizance of the cause is not to be ousted by unwarrantable additions to the claim. To this I would add that the principle is also subject to the rule that a plaintiff cannot under-value his relief in order to have recourse to a Court of lower grade than the Court that would have jurisdiction if there was no under-valuation. To this I would add that the principle is also subject to the rule that a plaintiff cannot under-value his relief in order to have recourse to a Court of lower grade than the Court that would have jurisdiction if there was no under-valuation. It is true that with the exception of the case in 15 All, the cases referred to above were not cases similar to the one before us, but I see no reason for departing from the principle laid down in these cases. With all deference to the opinion of the learned Judges who decided the case in I.L.R., 31 Cal., I think that the practice which has prevailed for upwards of half a century in these provinces of allowing the plaintiff in a suit like the present to put a value on the relief which he asks for, and thus determine the jurisdiction, is not illegal and should not be departed from. 7. I would allow the application and setting aside the orders of the Courts below, I would direct the Munsif to receive the plaint. I think costs here and hitherto should abide the event. BURKITT, J. I fully concur in, and I have nothing to add to the judgment of my brother AIKMAN. STANLEY, J. During the course of argument I was disposed to think that the view taken by the Courts below as to the extent of the jurisdiction of a Munsif under section 19 of the Civil Courts Act was correct, but upon further consideration and having had an opportunity of reading the well-considered and cogent judgment of my brother AIKMAN, I have come to think that the interpretation put upon the word “value” as used in that section ought not to be a narrow one. The word is sufficiently elastic, I think, to bear the interpretation which my brother AIKMAN has put upon it, and in view of the practice heretofore prevailing and of the inconvenience which would arise if suits for restitution of conjugal rights and other suits which cannot be satisfactorily valued were excluded from the jurisdiction of Munsif, I concur in the order which he proposes to pass. 8. BY THE COURT.:— The application of the plaintiff is allowed. The orders of the Courts below are set aside, and the Munsif is directed to receive the plaint, and dispose of it according to law. 8. BY THE COURT.:— The application of the plaintiff is allowed. The orders of the Courts below are set aside, and the Munsif is directed to receive the plaint, and dispose of it according to law. Costs here and hitherto will abide the event.