Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 270 (PAT)

UMESH NARAYAN v. JHATI DEVI

2012-02-14

SAMARENDRA PRATAP SINGH

body2012
ORDER Heard learned counsel for the petitioner as well as learned counsel appearing for the respondents. 2. The instant writ petition is directed against the final order dated 15.9.2009, passed in Title suit no. 2 of 2008, whereby learned Additional Munsif 1, Patna refused the prayer of the petitioner to decide the issue of jurisdiction as preliminary issue. The plaintiffs-respondent nos. 1 and 2 filed Title suit no. 2 of 2008 with the following reliefs:- (A) That after adjudication of the facts of the case mentioned above it be declared by a decree of the Court that the plaintiffs are the owners, of suit premises fully mentioned in Schedule I of the plaint and non-title of the defendant nos. 1 and 2. (B) That it be also declared by a decree of the court that the alleged sale deed dated 17/7/1979 alleged to be executed by defendant 2nd set in favour of defendant 1st set in respect f suit plot is illegal, void, collusive, inoperative, without consideration and is not binding upon the plaintiffs. (C) That the construction of boundary wall as well as cabin over suit plot may be removed by the order of the court directing the defendant nos. 1 and 2 to remove the same within time fixed by the court failing which the same may be removed through the process of the court. (D) That the defendant 1st set may be restrained by an order of temporary injunction restraining the defendant nos. 1 and 2 from making any construction over the suit property and from alienating, transferring, mortgaging and encumbering the suit property. (E) That the cost of the suit be awarded in favour of the plaintiffs and against the defendants. (F) That any other relief or reliefs be awarded in favour of the plaintiffs for which the plaintiffs are entitled for. 3. The petitioner who is defendant no.2 in the suit appeared and filed written statement raising amongst others, the issue of jurisdiction. 4. He states that the suit is under valued. The defendant submits that the suit land of 1979 is situated on Patna Gaya Highways measuring 72 decimals and its value in the year 2008 would be more than Rs. 6 lakh in place of Rs. 10,000/- which was the price in 1979. He submits that value of all land has increased manifold. The defendant submits that besides this the plaintiffs (respondent no. 6 lakh in place of Rs. 10,000/- which was the price in 1979. He submits that value of all land has increased manifold. The defendant submits that besides this the plaintiffs (respondent no. 1 and 2) also prayed for removal of cabin and other structure of the suit land which itself would value around a lakh. 5. The trial court in its impugned order observed that the market value of the property is not a criteria for valuation under section 7(iv) of the Court Fees Act, 1870 and the suit is to be valued as per the value of the reliefs sought. The trial court as such refused to take up the issue of jurisdiction as preliminary issue. 6. Aggrieved by the order of the learned trial court, the defendant petitioner has preferred this writ petition. The defendant-petitioner submits that the valuation of the suit land in the year 2008 has been stated greatly undervalued at Rs. 10,000/- which was the value mentioned in the sale deed in the year 1979. Leaned counsel submits that the present value of the suit would be about Rs.6 lakhs. Learned counsel submits that in a court of limited pecuniary jurisdiction, the valuation attached to the suit assumes great importance. Counsel for the petitioner-defendant, in support of his submissions, has relied upon the decision of Hon'ble Apex court in case of Sujir Keshav Nayak Vs. Sujir Ganesh nayak, reported in AIR 1992 Supreme court 1526. Learned counsel has relied upon Full bench decision of this Court in case of Md. Alam Vs Gopal Singh and others, reported in 1987 PLJR 371. 7. On the other hand, counsel appearing for the plaintiffs- respondents submits that the valuation of the plaint is according to the relief sought for and it is well settled that once the plaintiff exercises his option and values his claim for the purpose of Court fee, the defendant has no right to challenge the valuation. 8. The view of Full bench has been upheld by Hon'ble Apex court in case of Smt. Tara Devi Vs. Sri Thakur Radha Krishan Maharaj and another, reported in AIR 1987 Supreme court 56. Learned counsel also relied upon a judgment of learned Single judge in case of Rajendra Prasad Athghara and others Vs. Chandra Chur Choudahry and others, reported in 2002(4) PLJR 90 . 9. In case of Md Alam Vs. Sri Thakur Radha Krishan Maharaj and another, reported in AIR 1987 Supreme court 56. Learned counsel also relied upon a judgment of learned Single judge in case of Rajendra Prasad Athghara and others Vs. Chandra Chur Choudahry and others, reported in 2002(4) PLJR 90 . 9. In case of Md Alam Vs. Gopal Singh & others, issue before the Full bench was whether the plaintiff has an absolute right or option to place any valuation whether on the relief claimed in a suit governed by clause (iv) of section 7 of the Court Fees Act and whether the Court has no jurisdiction to examine the correctness of the valuation so given. The issue involved in the instant case was thus also one of the issues before the Full bench. 10. The Full bench in view of the principles laid down by Hon'ble Apex court in case of S.Rm.Ar.S. Sp Sathappa Chattiar Vs. S.Rm.Ar.Rm.Ramnathan Chattiar, reported in AIR 1958 Supreme court 245 and in case of A.Ka.Ct.V.Ct. Meenakshisundaram Chettair Vs. A.ka.Ct.V.Ct.Venkatachalam Chettair, reported in AIR 1979 Supreme court 989 held that the plaintiff has no absolute right or option to place any valuation on the relief claimed in a suit governed by clause (iv) of section 7 of the Court Fees Act. The Full bench further observed that ordinarily the value stated by the plaintiff is to be accepted but in case the value of the suit land for purpose of jurisdiction as well as for the purpose of relief, is demonstratively wrong and relatively under valued, the court can interfere in the valuation so given by the plaintiff. It thus appears that normally the court on the relief claimed in a suit governed by clause (iv) of section 7 of the Court Fees Act accepts the valuation mentioned by the plaintiff though interferes only when the value so stated is arbitrary and demonstratively wrong. In recent times, the issue of jurisdiction and the valuation on the relief claimed in a suit governed by clause (iv) of section 7 of the Court Fees Act often is subject matter of dispute 11. It is relevant to state here that the matter relating to the commutation of court fee under Kerala Court Fees and Suits Valuation Act (10 of 1960), Chapter IV is analogous to the method of computation of Court fee under Section 7(iv) of the Central Act. It is relevant to state here that the matter relating to the commutation of court fee under Kerala Court Fees and Suits Valuation Act (10 of 1960), Chapter IV is analogous to the method of computation of Court fee under Section 7(iv) of the Central Act. The Hon'ble Apex court in case of Sujir Keshav Nayak observed in para 3 of the judgment that in a suit for declaration with consequential relief falling under section 7(iv)(C ) of the Court Fees Act, 1870, the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of court fee and jurisdiction has to be ordinarily accepted. The Hon'ble Apex court further observed that it is only in cases where it appears to the court on a consideration of the fact and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the court can examine the valuation and can revise the same. The Hon'ble Apex court observed that after filing of the written statement the defendant would have no right to raise such objection nor the court should delve into the matter after filing of written statement. Settling the issue, the Apex court observed that where the question of court fee is linked with jurisdiction, a defendant has a right to raise objection and the court should decide it as a preliminary issue. 12. The defendant-petitioner relying heavily upon the aforesaid observation of the Hon'ble Apex court submits that when the question of court fee is linked with jurisdiction, a defendant has a right to raise objection and the court should decide the matter as a preliminary issue. The observation of the Hon’ble Apex court necessarily has to be seen in light of Order 14, Rule 2 C.P.C. which is quoted herein below:- O 14,R 2. Court to pronounce judgment on all issues.-(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. Court to pronounce judgment on all issues.-(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, any may deal with the suit in accordance with the decision on that issue. 13. It would appear that the O 14, R 2 C.P.C. confers right to a court to decide the issue of jurisdiction as a preliminary issue, if the same can be decided only on the issue of law. In the instant case, whether the valuation of the suit land would be Rs. 10,000/- to Rs. 30,000/- and thus within the pecuniary jurisdiction of the court of Munsif or whether it would be Rs.6 lakhs as to go out of its pecuniary jurisdiction as claimed by the defendant – petitioner, would be a question of both fact and law. 14. In such circumstances, though the issue is one of jurisdiction, the same cannot be decided as a preliminary issue in the facts of the case as decision of the same would require consideration of evidence. In the circumstances, the objection to valuation can be considered in evidence with all other issues and the trial court after taking evidence on all the issues would decide the issue of valuation as first issue as it would touch the jurisdiction of the Court. The evidence of the parties so deduced would also hold good, if it is found at the time of hearing that the suit has to be decided by a court in the rank of Sub-judge. The parties in that eventuality would not be permitted to adduce any further evidence other than what has been deduced before the court of Munsif. The court would proceed from the stage of argument. 15. The parties in that eventuality would not be permitted to adduce any further evidence other than what has been deduced before the court of Munsif. The court would proceed from the stage of argument. 15. With the aforesaid directions, order dated 15.5.2009, passed by the Addl. Munsif in Title suit no. 2 of 2008 is modified to the extent mentioned above. 16. The writ petition is accordingly disposed of.