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2009 DIGILAW 693 (GAU)

Kala Ram Boro @ Kalia Kachari v. Harendra Malakar

2009-09-23

ANIMA HAZARIKA

body2009
JUDGMENT Anima Hazarika, J. 1. This Regular Second Appeal is directed against the judgment and decree dated 26.5.2005 passed by the learned Civil Judge (Sr. Divn.) No. 1. Kamrup, Guwahati in Title Appeal No. 18 of 2004 whereby and whereunder the learned appellate Court below allowed the appeal directing return of the plaint under Order 7 Rule 10 of the Code of Civil Procedure (for short 'the Code' only) by setting aside the judgment and decree dated 29.1.2004 passed by the learned Civil Judge (Jr. Divn.) No. 1 Kamrup, Guwahati in Title Suit No. 199 of 1998 holding that the learned trial Court has no jurisdiction to try the suit with reference to the pecuniary limits of the jurisdiction of the trial Court. 2. Before narrating the facts leading to the filing of this appeal, the Court noted the two substantial questions of law that need to be decided in this appeal, which were formulated at the time of admission of the appeal. The two substantial questions of law are as follows-- (i) Whether the learned lower appellate Court committed illegality in setting aside the judgment and decree of the trial Court on ground of pecuniary jurisdiction without any proof of prejudice being caused to the Respondents/Defendants? (ii) Whether in a suit for declaration with consequential relief of recovery of possession and permanent injunction the Court fee is payable under Section7(iv)(c) of the Court Fees Act and whether the valuation of the suit is illegal? 3. (ii) Whether in a suit for declaration with consequential relief of recovery of possession and permanent injunction the Court fee is payable under Section7(iv)(c) of the Court Fees Act and whether the valuation of the suit is illegal? 3. In order to answer the aforesaid two questions, a brief facts leading to the filing of this appeal is necessary-- The Appellant herein is the Plaintiff in Title Suit No. 199 of 1998 who brought the suit seeking the following reliefs-- a) For a decree, confirming the Plaintiffs right, title and interest and possession over the suit land (described in the schedule below); b) For a permanent injunction restraining the Defendants, their agents and employees from entering into the suit land and from raising any construction over the suit land; c) For a decree for the cost of the suit against the Defendants jointly and severally against them; d) For reserving the Plaintiff's right of joining the prayers and/or for filing other appropriate suits against the concerning persons or Authorities in respect of the suit land described below; e) For a declaration that the General Power of Attorney No. 1745 dated 4.6.97 was/is void in law and inoperative and is not binding on the Plaintiff and on the suit land. 4. The statements made in paragraph 8 of the plaint may be noticed herein. The same being relevant is quoted hereunder-- 8. That for the purpose of jurisdiction the reliefs are valued at Rs. 24,600/- which comprises the value of the suit land for the interest of the Plaintiff at Rs. 24,600/- and the injunction at Rs. 100/-. The Plaintiff being the owner and possessor of the suit land, the Court fee is paid on Rs. 45/- being the five times of the Annual Land Revenue of the Suit Dag which is Rs. 9/- and for the purpose of injunction, the Court fee is paid on Rs. 100/-. 5. The Defendant Nos. 1 and 2 were initially arrayed as Defendants in the suit and subsequently by amendment of the plaint the Defendant No. 3 was arrayed in the suit for proper adjudication since the Defendant No. 3 was power of attorney holder in respect of the suit land. 6. The Defendant Nos. 1 and 2 contested the suit by filing a common written statement wherein in paragraphs 2 and 3 they pleaded as follows-- 2. 6. The Defendant Nos. 1 and 2 contested the suit by filing a common written statement wherein in paragraphs 2 and 3 they pleaded as follows-- 2. That the suit is under valued as the value of the suit property is more than Rs. 1,50,000/- and therefore the Court has no jurisdiction to entertain the suit. 3. That the plaint is written upon paper insufficiently stamped and therefore the plaint is liable to be rejected. 7. In support of the facts pleaded in paragraphs 2 and 3 of the written statement the Defendants have pleaded that the Plaintiff had executed a deed of general power of attorney in favour of the Defendant No. 3 in respect of Schedule land on 4.6.1997 whereby the said Defendant No. 3 sold the land by a registered deed No. 2163/98 and No. 2161/98 at a total consideration of Rs. 1,50,000/- (Rupees one lakh fifty thousand) for 3 kathas of land i.e. @ Rs. 50,000/- (Rupees fifty thousand) per katha on behalf of the Plaintiff to the Defendants Nos. 1 and 2 and handed over the possession to the Defendant Nos. 1 and 2. 8. A separate written statement was filed by the Defendant No. 3 in the suit and the Defendant No. 3 supported the facts pleaded by the Defendant Nos. 1 and 2. On the pleadings of the parties the learned trial Court has framed as many as 10 (ten) issues, out of which issue No. 4 is relevant for the purpose of this appeal. The issue No. 4 is quoted hereunder-- Whether the Court has jurisdiction to try the suit. While deciding issue No. 4 the learned trial Court has held that since the question of pecuniary jurisdiction was not raised at the earliest, more particularly, before the settlement of issues; in view of Section 21, Sub-Section 2 of the Code, such an objection, which is technical in nature, cannot be taken up at that stage and has answered the issue in affirmative. 9. The other issues were answered in favour of the Plaintiff holding that the General Power of Attorney No. 1745 dated 4.6.1997 is void in law and inoperative, not binding on the Plaintiff, and on the suit land thereby confirming the right, title, interest over the suit/schedule land of the Plaintiff and decreed the suit 10. Feeling aggrieved, an appeal was carried to the appellate Court which was allowed. Feeling aggrieved, an appeal was carried to the appellate Court which was allowed. The first appellate Court held that since there is a specific averment in written statement challenging the jurisdiction of the trial Court on the ground that value of suit land being more than rupees one lakh, the court has got no pecuniary jurisdiction to try the suit, the trial Court ought to have decided this issue by framing a preliminary issue and when that is not done, observation made while deciding issue No. 4 that such plea ought to have been taken at the earliest opportunity is not a proper decision. The trial Court thus committed an error in holding that the issue of pecuniary jurisdiction ought to have taken at the earliest opportunity, when, in fact, the Defendants have challenged the pecuniary jurisdiction of the Court while filing the written statement which is the earliest opportunity for them. The appellate Court has further held in referring paragraph 8 of the plaint that the suit is filed for declaration of the Power of Attorney No. 1745 dated 4.6.1997 as void and inoperative and not binding upon the Plaintiff and on the suit land. On the other hand, the Defendants have set a plea that by virtue of Power of Attorney they purchased the land by a registered sale deed on a consideration of Rs. 1,50,000/- (Rupees one lakh fifty thousand) and the criteria for determining the question of Court fee in cases of declaratory suits is the substance of the relief claimed as disclosed by the plaint taken as a whole and the Plaintiff in reality has sought for a substantive relief and not a mere consequential relief and therefore, the Plaintiff must pay Court fee on the substantive relief and in such a case the suit should be valued under Section 7(v) of the Court Fees Act ('Act' for short) and is not covered by Section 7(iv)(c) of the Act. Holding thus the appellate Court set aside the judgment and decree of the learned trial Court directing the plaint to be returned to the Plaintiff for presenting the same before the competent Court and hence, the instant appeal under Section 100 of the Code. 11. I have heard Mr. C. K. Sharma Barua, learned Senior Counsel assisted by Mr. H. K. Sarma, learned Counsel for the Petitioner. Also heard Mr. 11. I have heard Mr. C. K. Sharma Barua, learned Senior Counsel assisted by Mr. H. K. Sarma, learned Counsel for the Petitioner. Also heard Mr. P. K. Kalita, learned Counsel for the Respondents. 12. Criticising the judgment under appeal, Mr. Sharma Baruah, learned Sr. Counsel appearing for the Appellant would draw the attention of the Court to the provisions of Sub-Section 2 of Section 21 of the Code and the intention of the legislature incorporating the aforesaid Sub-Section 2 which is technical in nature and the objection having not been taken with reference to the pecuniary jurisdiction at the earliest possible opportunity and in any case at or before settlement of issues, it cannot be raised subsequently and the law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage and on this ground alone the interference is required in exercise of power under Section 100 of the Code, more so when no prejudice is caused to the Defendants in adjudicating the matter by the learned trial Court. 13. Mr. Sarma Baruah, learned Sr. Counsel would further urge that a reading of the entire plaint would show that the Plaintiff has sought for declaratory relief that the Power of Attorney No. 1745 dated 4.6.1997 was/is void in law and inoperative and is not binding on the Plaintiff and on the suit land with consequential relief and for permanent injunction whereof the Court fee is required to be paid under Section 7(iv)(c) of the Act and is, therefore, returning of the plaint in exercise of power under Order 7, Rule 10 of the Code is misplaced which requires interference under Section 100 of the Code being perverse. 14. In support of his submission, Mr. Sharma Barua has relied upon the following decisions: i) AIR 1954 SC 340 Kiran Singh and Ors. v. Chaman Paswan and Ors. (ii) AIR 1979 Gau 27 Ayekpam Biramangol Singh v. State Bank of India and Anr. iii) (1998) 2 GLR 27 Shri Sashi Kanta Sarma &Anr. v. Shri Hem Kanta Sarma and Ors. iv) 2001 (1) GLT 141 Maheshpur Tea & Industries Pvt. Ltd. v. Mantala Tea Co. Ltd. and Ors. v. Chaman Paswan and Ors. (ii) AIR 1979 Gau 27 Ayekpam Biramangol Singh v. State Bank of India and Anr. iii) (1998) 2 GLR 27 Shri Sashi Kanta Sarma &Anr. v. Shri Hem Kanta Sarma and Ors. iv) 2001 (1) GLT 141 Maheshpur Tea & Industries Pvt. Ltd. v. Mantala Tea Co. Ltd. and Ors. In Kiran Singh (supra), the Hon'ble Apex Court has held that policy underlying Section 21 and Section99 of the Code and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and the judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merit In Ayekpam Biramangol Singh (supra), a division Bench of this Court has held that in a suit under Section 7(iv)(c) of the Act, the Plaintiff is at liberty to value his suit at an amount at which he values the relief sought and the Court has no power to interfere with in the valuation of relief put by the Plaintiff for the purposes of Court fee under Section 7(iv)(c). In Sashi Kanta Sarma (supra), this Court held that in a suit covered by Section 7(iv)(c) of the Act Plaintiffs have absolute right or option to put any valuation of relief and such valuation for the purposes of Court fee and jurisdiction has to be accepted if there is nothing on record to show that the said valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued. In Maheshpur Tea (supra), this Court has held that Sub-section (2) of Section 21 of the code provides that even where an objection as to the competence of the Court with reference to the pecuniary limits of jurisdiction was taken in the Court of first instance at the earliest possible opportunity at or before settlement of issues, the appellate court would not allow such objection unless there is a failure of justice. 15. Countering the attack, Mr. 15. Countering the attack, Mr. P. K. Kalita, learned Counsel appearing for the Respondents/Defendants, on the other hand, supported the judgment under appeal and has drawn the attention of the Court to the pleadings set forth by the parties, more particularly, paragraph 8 of the plaint and paragraphs 2, 3 and 11 of the written statement of Defendant Nos. 1 and 2 and the pleadings set forth by the Defendant No. 3 whereof the question of (sic) jurisdiction of the Court to try the suit has been raised and in fact the issue has been framed being issue No. 4 wherein the trial Court rejected the plea only on the ground that the objection was not raised at the earliest possible opportunity and in view of Sub-Section 2 of Section 21 of the code, no objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement and unless there has been a complete failure of justice and on appeal the learned First Appellate Court allowed the appeal by setting aside the judgment and decree passed by the trial Court by holding that the learned trial Court has no jurisdiction to try the suit with reference to the pecuniary limits of the jurisdiction of the trial Court; as such no interference is called for in the facts and circumstances of the case. 16. Mr. Kalita has further urged that on a plain reading of the plaint it would show that the suit is in the nature of declaratory suit with consequential relief but if the curtain is removed it would show that the suit has been filed in reality seeking a substantive relief and not a mere consequential relief, meaning thereby that if the Power of Attorney is declared invalid then the two sale deeds executed would automatically be nullified and in that event the Court fee of Rs. 1,50,000/- (Rupees one lakh fifty thousand) is required to be paid as provided under Section 7(v) of the Act and therefore, no interference is required under Section 100 of the Code. 17. The following decisions have been referred to by Mr. 1,50,000/- (Rupees one lakh fifty thousand) is required to be paid as provided under Section 7(v) of the Act and therefore, no interference is required under Section 100 of the Code. 17. The following decisions have been referred to by Mr. Kalita, learned Counsel appearing for the Respondents in support of his submission-- i) AIR 1979 SC 989 : A. KA. CT. V. C. T. Meenakshisundaram Chettiar v. A. KA. CT. VCT Venkatachalam Chettiar ii) (1987) 4 SCC 69 : Tara Devi v. Shri Thakur Radhia Krishna Maharaj &Anr. iii) (1984) 2 GLR 449: Haripada Datta v. Madhusudan Datta and Ors. iv) AIR 1989 Gau 3 : Md. Hafiz alias Hafizuddin Ahmed v. Mustt Noorjahan v) AIR 1997 Gau 119 : Assam State Electricity Board, Guwahati and Ors. (Vs. Borjalinga Tea Company and Anr. In Meenakshisundaram (supra), the Apex Court held that if on the materials available before the Court, the Court is satisfied that the value of relief as estimated by the Plaintiff in a suit for accounts is undervalued the plaint is liable to be rejected under Order 7, Rule 11(b). In Tara Devi (supra), the Apex Court held that in a suit for declaration with consequential relief falling under Section 7(iv)(c) of the Act, the Plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of the fee and jurisdiction has to be accepted by Court unless it is arbitrary, unreasonable and deliberately underestimated. In that case, the Court can examine valuation and can revise the same. In Haripada Datta (supra), this Court held that the question of the applications of Section 7(iv)(c) to suits for declaration and possession depends upon the circumstances of each case. When a bare declaration is sufficient to afford adequate relief to the Plaintiff and the prayer for possession is superfluous, the case would be governed by schedule (ii) Article 17 (iii). To such a suit Section 7(iv)(c) shall have no applications. Similarly where the suit is in substance one for possession and the prayer for declaration redundant, the suit falls within the purview of Section 7 (v) and is not governed by Clause (iv) (c) of Section 7. In Md. To such a suit Section 7(iv)(c) shall have no applications. Similarly where the suit is in substance one for possession and the prayer for declaration redundant, the suit falls within the purview of Section 7 (v) and is not governed by Clause (iv) (c) of Section 7. In Md. Hafiz (supra), this Court held that although the Plaintiff has an absolute right or option to place any valuation whatever on his relief under Section 7 (iv) (c), a reading of Section 7-A together with Section 7 (iv) (c) shows that the Court has jurisdiction to inquire into whether the amount at which the Plaintiff values the relief sought for is reasonable. In Assam State Electricity Board (supra), this Court while directing to realise proper Court fee held that practice of valuing suits arbitrarily for purpose of injunction seeking to avoid liability of huge amounts not proper. 18. As noted hereinabove, the questions which need to be looked into and to be decided in this appeal is whether the learned Court of appeal below is justified in setting aside the judgment and decree passed by the learned trial Court on the question of pecuniary jurisdiction and as to whether the said question was raised at the earliest possible opportunity and before settlement of issues. The other question raised is whether in a declaratory suit with consequential relief the Court fees is required to be paid under Section 7 (v) of the Act or under Section 7 (iv) (c) of the Act and as to whether the Court has jurisdiction to inquire into the amount at which the Plaintiff values the relief sought for is reasonable. 19. In order to answer the questions raised, it would be appropriate to refer the pleadings set forth by the parties. At paragraph 8 of the plaint the "reliefs" are valued at Rs. 24,600/- which comprises the value of the suit land and on the other hand, the Defendants have raised in the pleadings, i.e. at paragraphs 2, 3 and 11 of the written statement that the suit is undervalued as the value of the suit property is more than Rs. 1,50,000/- and thus the objection as to the competence of the Court with reference to the pecuniary limits of the jurisdiction was taken at paragraphs noted hereinabove in the written statement itself. 20. 1,50,000/- and thus the objection as to the competence of the Court with reference to the pecuniary limits of the jurisdiction was taken at paragraphs noted hereinabove in the written statement itself. 20. On a conjoint reading of Section 7 coupled with Section 7 (iv) (c) and Section 7 (v) of the Act, the Court is to look into the averments made in the plaint and to see the nature of the relief claimed. In fact, in the plaint substantial relief has been asked for, other than one for a declaratory decree, coupled with other reliefs, which flows naturally in the wake of declaration and thus the case cannot be regarded as falling under Clause (c) of Sub-section (iv) of Section 7 of the Act and if, on the whole and in substance, a suit appears to ask for some other relief other than a mere declaration, the suit must be held not to be one for a bare declaration although the prayers in the plaint may have been cast in a declaratory form. In the instant case, the suit as framed is in the nature of declaratory as it appears from the averments made in the plaint and the relief sought for, but the 'reliefs' are valued at Rs. 24,600/- which comprises the value of the suit land and the suit as framed is for confirmation of possession of the Plaintiff over the suit land by setting aside the Power of Attorney dated 4.6.1997 which as per Plaintiff is not binding upon him; whereas the Defendants have claimed right, title and possession on the basis of sale deed executed in their favour by the Power of Attorney holder on a consideration of Rs. 1,50,000/- and therefore, the suit ought to have been valued on the basis of market value of the property in question which comes under Section 7 (v) of the Act. The learned Court of appeal below, therefore, rightly held that the suit would come within the purview of Section7 (v) and is not covered by Section 7 (iv) (c) of the Act. 21. The other question raised relates to pecuniary jurisdiction of the Court to try the suit There is nothing in Section 21 of the Code which makes it mandatory for the Court to decide the question of pecuniary jurisdiction as a preliminary issue. 21. The other question raised relates to pecuniary jurisdiction of the Court to try the suit There is nothing in Section 21 of the Code which makes it mandatory for the Court to decide the question of pecuniary jurisdiction as a preliminary issue. The Court has discretion either to decide the issue of jurisdiction as a preliminary issue or decide along with other issues. The Court of first instance has framed issues and the question of pecuniary jurisdiction has been dealt with in issue No. 4 whereof the issue has been answered in the affirmative holding that the Defendants have failed to raise the issue at the earliest possible opportunity and/or failed to raise the issue before settlement of issues. 22. Admittedly, the Defendants have specifically pleaded in the written statement regarding under valuation and insufficiency of Court fee as a substantive part of defence. But the trial Court overruled the question of pecuniary jurisdiction on the ground being not raised at the earliest possible opportunity. The procedure followed must be held itself to have caused failure of justice, since the trial Court decreed the suit holding that the Power of Attorney is void, meaning thereby, the sale deeds executed in favour of the Defendants would be nullities and thus the court has lack of pecuniary jurisdiction to try the suit. The learned Court of appeal below, therefore, has rightly set aside the decree considering the substantive nature of relief sought for. 23. The decisions cited and referred to in the cases have no ambiguity in regard to the proposition of law and its correctness. As has been mentioned hereinabove, in the case of Tara Devi (supra), the Apex Court while dealing with the provision of Section 7 (iv) (c) of the Act has rightly held that the valuation of suit made by Plaintiff according to his own estimation of the relief claimed by him has to be accepted by Court unless it is arbitrary and deliberately underestimated. In the instant case, though the suit appears to be declaratory in nature but in substance the suit appears to have asked some relief other than a mere declaration and, therefore, the suit would come under the purview of Section 7 (v) of the Act which has rightly been interfered with by the learned lower Court of appeal below holding that the suit is undervalued and therefore, exercised the jurisdiction under Order 7 Rule10 of the Code which this Court do not want to interfere with since the case has occasioned failure of justice. 24. In the result, there is no merit in the appeal and accordingly, the appeal stands dismissed. However, there shall be no order as to cost. Registry is directed to send down the records immediately. Appeal dismissed