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2002 DIGILAW 558 (KAR)

Shivappa v. Coffee Land Limited

2002-09-05

N.K.PATIL

body2002
ORDER N.K. Patil, J.--These Civil Revision Petitions are directed against the order passed by the Additional District and Sessions Judge, Chikmagalur, dated 14.6.2001 passed in Regular Appeal Nos. 4 of 1999, 2 of 2000 and 3 of 2000, respectively. Since similar question of facts and law are involved in these revision petitions, by way of common order, these revision petitions are disposed of. 2. The Petitioners had filed regular appeals before the first appellate Court being aggrieved by the common judgment passed by the Civil Judge, Chikmagalur, in O.S. No. 150 of 1988, dated 28.10.1999. In the said regular appeals before the first appellate Court, the Respondent had raised preliminary objection regarding the maintainability of the appeals filed by the Petitioners on the point of pecuniary jurisdiction and contended that the impugned judgment and decree is perfectly correct, needs no interference and appeals have to be dismissed. The first appellate Court after hearing the learned Counsel appearing for the respective parties on preliminary objection raised by the Respondent No. 1 herein, has held that the said Court has got no jurisdiction to hear the matter involved in the respective appeals. Accordingly, the first appellate Court has ordered to return the respective appeals for being presented before the appropriate forum by paying proper Court fees, by its order dated 14.6.2001. These Petitioners assailing the legality and validity of the common order passed by the Court below as stated supra, have presented these revision petitions. 3. Heard the learned Counsel appearing for the Petitioners and the learned Counsel appearing for the Respondents and learned Government Advocate appearing for the proposed Respondent. 4. The principal submission of the learned Counsel appearing for the Petitioners is that the Court below has failed to consider that the Petitioners have taken a specific plea regarding the misjoinder of the parties in the suit filed and the trial Court has framed issue No. 8. In that regard, whether the suit is bad for misjoinder of the parties, the trial Court has negatived the said issue. Further, learned Counsel appearing for the Petitioners contended that the judgment and decree of the trial Court questioned by paying proper Court fee is based on the valuation made by the Plaintiff/Respondent in the suit as per the valuation furnished and the same was accepted. Further, learned Counsel appearing for the Petitioners contended that the judgment and decree of the trial Court questioned by paying proper Court fee is based on the valuation made by the Plaintiff/Respondent in the suit as per the valuation furnished and the same was accepted. The Court below has further committed an error not to consider the subject matter of the appeal filed by the Petitioner and the Court had got the jurisdiction to try the appeal. Further, learned Counsel has brought to the notice that the reliance is placed by the trial Court on Sub-rule (2) of Rule 3 of Order 2 Code of Civil Procedure, which states that where causes of action are united, the jurisdiction of Court as regards the suit shall depend on the amount or the value of the aggregate subject matters on the date of institution of the suit, thereby, the Plaintiff/Respondent contended that it is not permissible for the Petitioners to pay the Court fee so far as Schedule C, D and E properties separately, which has been valued in the suit. But they are required to pay the Court fee on the memorandum of appeal on the value of the aggregate subject matter as it is Rs.1,15,000/-. The said finding given by the trial Court is contrary to the relevant provisions of the Act and the said Sub-rule (2) of Rule 3 of Order 2 Code of Civil Procedure is applicable to the original suit only and not to the appellate Court. Therefore, the appellate Court has misconceived reading the said proposition placed by the Respondent's Counsel. Further, he has rightly taken through the separate schedule of the property as it is C, D and E and also the valuation slip filed in the original suit. It is clearly in amicable term as regards the mentioning of the market value separately for Schedule C Rs.15,000/-, Schedule D Rs.50,000/- and Schedule E Rs.10,000/- respectively and this fact has been brought to the notice of the first appellate Court during the course of hearing of the matter but the trial Court has not taken into consideration and has proceeded holding that the appeal filed before the first appellate Court is not maintainable and upheld the preliminary objection raised by the Respondent. The said reasoning given by the trial Court is contrary to the relevant provisions of the Act. 5. The said reasoning given by the trial Court is contrary to the relevant provisions of the Act. 5. Further, Sri K. Raghavendra Rao, learned Counsel appearing for the Petitioner in Civil Revision Petition No. 2732 of 2001 has placed reliance on the judgment of this Court in case of Mallappa Vs. Thippanna, ILR (1985) KAR 3622 . In this case, this Court has held as follows: While preferring an appeal the Appellant will have to pay the Court Fee not only on the subject matter of the original suit but also on the interest subsequently accrued during the pendency of the suit. Therefore, it is only for the purpose of ascertaining the value of the subject matter of the appeal that the future interest within the meaning of Section 49 of the Act will have to be calculated and the Court Fee will have to be paid on the subsequent interest also which has accrued. The valuation for the purpose of payment of Court Fee is something different from the valuation for the purpose of preferring an appeal. Further, it is held in para No. 2 of the said judgment that: Appeals from the decrees and orders passed by a Civil Judge in original suits and proceedings of a civil nature, shall when such appeals are allowed by law, lie,- (1) to the District Court, when the amount or value of the subject matter of the original suit or proceeding is less than twenty thousand rupees; (2) to the High Court, in other cases. In view of the well established law laid down by this Court as stated supra, the order passed by the trial Court is liable to be rejected on this ground also. 6. Further, learned Government Advocate appearing for the State placed reliance on the judgment of this Court in case of Shivasangappa Shiddappa Kubsad Vs. Ramachandra Narayan Kambli and Ors.reported in 1968 (2) MLJ 237, wherein, it is held as follows: Though it was necessary for the Appellant to get rid of the finding that the property was self-acquired even in respect of one third share claimed by him, the payment of Court fee on the value of the one third share was properly paid and it was not necessary to pay the Court fee on the value of the entire property. If a party is interested only in a portion of a property in respect of which relief is granted, the expression "relief" so far as the said property is concerned, can only mean that relief in respect of portion which he claims likewise, the word 'different' in Explanation (iv) can only mean smaller than the relief claimed in the suit. Whether Explanation (i) or (iv) to Section 49 applies, the effect is that Court fee payable is only in respect of the subject matter of the appeal. 7. It is rightly pointed out by the learned Counsel appearing for the Petitioner and learned Counsel appearing for the Government, who have assisted effectively, to lay down the law in the instant case, that in view of the well established law laid down by this Court as stated supra, the impugned order passed by the first appellate Court is liable to be set aside. 8. Per contra, learned Counsel appearing for the Respondent No. 1 inter alia, contended and justified the impugned order passed by the first appellate Court. Further he submitted that they can pay the Court fee separately on the basis of the valuation of the property mentioned in the respective case but the appeal will not lie before the first appellate Court against the said order and only remedy for the aggrieved parties is to file regular first appeal before the High Court and not before the first appellate Court. Therefore, he justified the impugned order passed by the first appellate Court and pointed out that the Court below has not committed an error or illegality in the impugned order passed by the first appellate Court. 9. Having regard to the facts and circumstances of the case as stated above and taking into consideration the submission made by the learned Counsels appearing for the Petitioners that the trial Court has committed an error for rejecting/returning their plaints on the ground that the first appellate Court has got no jurisdiction to hear the appeals and further directed the Petitioners to place appeal before the appropriate forum where it lies, the said order passed by the first appellate Court is contrary to the law laid down by this Court. The said finding and reasoning for passing the order is contrary to the law laid down by this Court in case of Shivasangappa as stated supra. The said finding and reasoning for passing the order is contrary to the law laid down by this Court in case of Shivasangappa as stated supra. It is held in the said case in para No. 6 as follows: The very wording of the section and the indications clearly given by the explanations as to the manner of calculation of Court fee make it perfectly clear that Court fee on an appeal is payable in respect of the subject matter of the appeal and that the said amount should be calculated as if the appeal is a suit filed by the Appellant for the relief which he makes the subject matter of his appeal. Therefore, in view of the well settled law laid down by this Court, I do not find any justification to sustain the impugned order passed by the first appellate Court. 10. Yet there is another reason, the impugned order passed by the first appellate Court is liable to be rejected, as rightly pointed out by the learned Counsel appearing for the Petitioner that Sub-rule (2) of Rule 3 of Order 2 Code of Civil Procedure is applicable to the original suit only and not to the decree of the 1st appellate Court. Therefore, in my considered view, the 1st Appellate Court has misconceived the reading of the said preposition. Hence committed an error while assigning the said reasoning. 11. Further, it is significant to note that it is open to the unsuccessful party while appealing to the appellate Court to limit his appeal to a portion of his relief claimed in the trial Court. It is equally open to the unsuccessful party while appealing to the appellate Court to restrict his attack against the decree made against him to a portion of the decree. It is also clear that the expression 'relief' is not capable of being understood unless it is related to a party who wants that relief or against whom that relief is granted. If, therefore a party is interested only in a portion of the property in respect of which a relief is granted, the expression 'relief' so far as the said party is concerned can only mean the relief in respect of the portion in respect of which he claims or asserts that he has a right. 12. If, therefore a party is interested only in a portion of the property in respect of which a relief is granted, the expression 'relief' so far as the said party is concerned can only mean the relief in respect of the portion in respect of which he claims or asserts that he has a right. 12. Such being the clear effect of the section, I have no doubt in my mind, in the present case it was open to the Petitioners before the lower appellate Court to restrict their attack on the trial Court's decree to a portion in which they are interested or in which they claim to be interested and to give up their attack in respect of the rest of the property which had been made the subject matter of the suit. The fact that even for getting the restricted relief it is necessary to persuade the appellate Court to reverse the finding of the trial Court. Therefore, on this ground also the order passed by the appellate Court is not sustainable. 13. It is rightly pointed out by the learned Counsel appearing for the Petitioners that it is well settled proposition of law by the Apex Court and this Court in hosts of judgments. The Court ought not to have accepted the submission made by the Counsel appearing in the trial Court and proceed to pass the impugned order. In my considered view, the first appellate Court has committed an error in passing the impugned order. Having regard to the facts and circumstances of the case and having regard to the factual and legal position as stated above, I do not find any justification to sustain the impugned order passed by the first appellate Court. Hence, it is liable to be set aside. 14. For the foregoing reasons, the impugned order passed by the first appellate Court dated 14.6.2001 in Regular Appeal No. 4 of 1999, 2 of 2000, 3 of 2000 is set aside and the matter is remitted back to the First Additional District and Sessions Judge, Chikmagalur, to restore the said appeals to file on presentation of the appeal papers by respective parties/Counsels appearing for them and to hear the matter and decide the case on merits after giving opportunity to both the parties. Learned Government Advocate is permitted to file memo of appearance within four weeks from today. Accordingly, petitions are allowed.