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2017 DIGILAW 1287 (ORI)

Khetra Mohan Behera v. Kandra Matia

2017-11-10

A.K.RATH

body2017
JUDGMENT : Dr. A.K.Rath, J. 1. This appeal is by the plaintiffs. The suit was for declaration that the defendants have no semblance of right, title and interest or possession over the suit land and recovery of possession except the portion on which the suit house stands. 2. Since the dispute lies in a narrow compass, it is not necessary to recount in detail the cases of the parties. Suffice it to say that the plaintiffs instituted T.S. No.8 of 1984 in the court of the learned Munsif, Karanjia impleading the respondents as defendants seeking the reliefs mentioned supra. The defendants entered appearance and filed a written statement denying the assertions made in the plaint. The suit was decreed. Felt aggrieved, the defendants filed Title Appeal No.9 of 1987 before the learned Subordinate Judge, Karanjia. Learned lower appellate court without delving deep into the merits of the case came to hold that the learned Munsif has no pecuniary jurisdiction to try the suit. Held so, it allowed the appeal. 3. The second appeal was admitted on the following substantial questions of law: “(a). In view of the death of respondent no.3 in the court below and his legal representatives having not been brought on to the record in the court below, whether the appeal shall abate as a whole ? (b). Whether in view of Sec.21 of the Code of Civil Procedure when no objection was taken in the court below regarding the pecuniary jurisdiction, the same should have been entertained by the appellate court ? (c). Whether the appellate court could have entertained the question of valuation of the suit for the purpose of jurisdiction when no objection was taken by the defendants in the suit in view of Sec.11 of the Suit Valuation Act, 1887? 4. Heard Ms. Sagarika Sahoo on behalf of Mr. Asoke Mukherjee, learned Senior Advocate for the appellants. None appeared for the respondents. 5. Ms. Sahoo, learned counsel for the appellants, submitted that the defendants had not raised the question of jurisdiction of the learned Munsif. They were not able to show any sufferance of any prejudice. The learned lower appellate court had travelled beyond its jurisdiction in allowing the appeal. None appeared for the respondents. 5. Ms. Sahoo, learned counsel for the appellants, submitted that the defendants had not raised the question of jurisdiction of the learned Munsif. They were not able to show any sufferance of any prejudice. The learned lower appellate court had travelled beyond its jurisdiction in allowing the appeal. She relied on the decisions of the apex Court in the case of Kiran Singh and others v. Chaman Paswan and others, AIR 1954 SC 340 and K.P. Ranga Rao v. K.V. Venkatesham and others, (2015) 3 SCC 514. 6. Section 21 CPC reads as under; “21. Objections to jurisdiction.- (1) No objection to the place of suing 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 were issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. (2) 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 sues are settled at or before such settlement, and unless there has been a consequent failure of justice. (3) No objection as to the competence of the executing court with reference to the local limits of its jurisdiction shall be allowed by any appellate or revisional Court unless such objection was taken in the executing court at the earliest possible opportunity, and unless there has been a consequent failure of justice. 7. Sec. 11 of the Suits Valuation Act, 1887 postulates that notwithstanding anything contained in Section 578 (Section 99 of the present Code covering errors or irregularity) of the Code of Civil Procedure, an objection that a court which had no jurisdiction over a suit had exercised it by reason of under-valuation could not be entertained by an appellate court unless the objection was taken in the court of first instance at or before the hearing at which the issues were first framed or the appellate court is satisfied for reasons to be recorded in writing that the over-valuing or under-valuing of the suit has prejudicially affected the disposal of the suit. 8. 8. The apex Court in the case of Pathumma (Daughter of Koopilan Uneen) and others v. Kuntalan Kutty (Son of Koopilan Uneen) Dead by LRs and others, (1981) 3 SCC 589 held that there are three pre-requisites for the applicability of the section. The apex Court held : “5. In order that an objection to the place of suing may be entertained by an appellate or revisional court, the fulfilment of the following three conditions is essential : (1) The objection was taken in the court of first instance. (2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement. (3) There has been a consequent failure of justice. 6. All these three conditions must co-exist. xxx xxx xxx” 9. Taking a cue from Pathumma v. Kuntalan Kutty, (1981) 3 SCC 589 and Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 , the apex Court in the case of K.P. Ranga Rao v. K.V. Venkatesham and others, (2015) 13 SCC 514 held thus; “8. Obviously Section 21 will apply in the three situations mentioned therein: the first situation refers to the place of suing; the second situation refers to pecuniary limits of the court’s jurisdiction; and the third refers to local limits of the court’s jurisdiction. In each of these cases it is stated that an appellate court or revisional court shall not allow an objection to the place of suing (which refers to Section 16 in the present case) 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. What follows is important. An objection as to place of suing cannot be allowed unless there has been a consequent failure of justice. 9. What follows is important. An objection as to place of suing cannot be allowed unless there has been a consequent failure of justice. 9. In a classic exposition of the law, in Kiran Singh v. Chaman Paswan, after stating that a defect of jurisdiction strikes at the very authority of the court to pass any decree and such a defect cannot be cured even by consent of parties, the law has been laid down as follows; “7….The policy underlying Sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits Valuation Act, 1887 is the same, namely, that when a case had been tried by a court on the merits and 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 merits.” 10. The law laid down by the apex Court in the decisions cited supra applies with full force to the facts of the case. Learned trial court has decided all issues on merit after hearing both the parties. The suit was decreed. In view of the same, judgment and decree cannot be reversed purely on technical grounds unless there is failure of justice, which is nobody’s case. 11. A priori, the judgment and decree of the learned lower appellate court is set aside. The matter is remitted back to the learned lower appellate court to decide the appeal on merit.