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2018 DIGILAW 1135 (ALL)

GOVIND SINGH v. RAJENDRA PRASAD GUPTA

2018-05-07

PANKAJ MITHAL, RAJIV JOSHI

body2018
JUDGMENT By the Court.—In the original suit the plaintiff-respondent No. 1 had claimed the following three reliefs : (i) Specific performance of an agreement to sell by executing the sale deed and putting him in possession of the suit property for which the suit was valued at Rs. 16,66,666/-; (ii) to refund a sum of Rs. 11,74,500/- with 24% interest in case specific performance is not possible and for this relief the suit was valued of Rs. 11,74,520; and (iii) for a decree of permanent injunction restraining the defendants from selling the suit property to any third party for which the suit property was valued at Rs. 16,66,666/-. The total valuation of the suit for all the above reliefs was Rs. 45,07,582/-. 2. It appears that the plaint was subsequently amended and an additional relief for cancellation of the sale deed dated 28.7.2011 was also added for which purpose the suit was valued at Rs. 20,00,000/-. The total valuation of the suit was amended to Rs. 65,07,052/-. 3. The aforesaid suit has been decreed only for the first relief of specific performance for which the valuation was only Rs. 16,66,666/-. 4. The defendant-appellant has preferred appeal against the aforesaid decree of specific performance and has given the valuation of the suit as well as the appeal to be as Rs. 65,07,052/- and Court fee has been paid accordingly. A preliminary objection was raised that the valuation of the appeal should be Rs. 16,66,666/- only and if it would be so, the appeal would be cognizable by the District Judge. 5. In view of above preliminary objection, the Court had directed the office to re-examine the valuation of the appeal and to submit a fresh report. 6. In pursuance of the above order, office has submitted a fresh report on 3.5.2018 stating that since the appeal is directed only against the decree of specific performance, the valuation of the appeal would Rs. 16,66,666/-. However, as the valuation of the suit is Rs. 65,07,052/- according to the circular issued by the Chief Justice dated 9.2.2016, the appeal would be cognizable by the High Court. 7. 16,66,666/-. However, as the valuation of the suit is Rs. 65,07,052/- according to the circular issued by the Chief Justice dated 9.2.2016, the appeal would be cognizable by the High Court. 7. The circular dated 9.2.2018 of the Chief Justice as referred to in the office report only directs to transfer all first appeals arising from a decree or an order of the Civil Judge where the valuation of the original suit from which the appeal arises does not exceed Rs. 25,00,000/- to the respective District Judges. 8. The aforesaid circular does not relate to the fresh appeals filed after 9.2.2016. 9. The jurisdiction of the First Appeal in this High Court stand governed by the provisions of the Bengal, Agra and Assam Civil Courts Act, 1887 (hereinafter referred to as the Act). 10. Section 21 of the Act as amended vide U.P. Civil Laws (Amendment) Act, 2015 provides for the appeals from Civil Judges and it inter alia lays down that an appeal from a decree or an order of a Civil Judge shall lie to the District Judge where the value of the original suit does not exceed from Rs. 5,00,000/- or such higher amount not exceeding Rs. 25,00,000/- as the High Court may fix from time to time by notification in the official gazette. It means that appeals from Civil Judges would lie to the District Judge if the value of the original suit from which it arises is between Rs. 5,00,000/- to Rs. 25,00,000/- and the appeals arising from original suits of higher valuation would thus lie to the High Court. 11. A simple reading of the aforesaid Section 21 of the Act indicates that it is the value of the original suit that governs the jurisdiction of the appeal and not of the valuation of the appeal. 12. It may be noted that the valuation for the purposes of jurisdiction and for the purposes of Court fees are two distinct factors. 13. The jurisdiction of the appeal has to be governed by the valuation of the suit and not that of the appeal as the valuation of the suit is normally statistic but that of the appeal may vary depending upon the relief granted or refused by the Court of first instance. Thus, if the jurisdiction of appeal is made dependent upon the value of the appeal it will keep fluctuating. 14. Thus, if the jurisdiction of appeal is made dependent upon the value of the appeal it will keep fluctuating. 14. It is therefore, to avoid such fluctuation in the jurisdiction of the appellate Court that Section 21 of the Act provides that for the purposes of jurisdiction of appeal value of the original suit alone is relevant. 15. In the case at hand the value of the original suit is Rs. 65,07,052/- and it continues to be the same whereas the valuation of the appeal has been reduced to Rs. 16,66,666/- according to the relief granted against which appeal has been preferred. 16. In view of the valuation of the suit which is the sole relevant criteria for determining the jurisdiction of the appeal, the appeal is cognizable by the High Court even though its value is Rs. 16,66,666/- much less than Rs. 25,00,000/-. 17. The appeal is therefore, maintainable before this Court as it arises out of a suit having value of Rs. 65,07,052/- and since the value of the appeal is Rs. 16,66,666/- Court fee would be payable on the said amount. 18. Accordingly, excessive Court fee paid by the appellant is directed to be returned. 19. Heard Sri N.C. Rajvanshi, Senior Counsel assisted by Sri Vinay Kumar Mishra, learned counsel for the defendant-appellant and Sri H.R. Mishra, Senior Counsel assisted by Sri Abhishek Misra, learned counsel for the plaintiff-respondent No. 1. 20. The appeal is directed against the decree of specific performance of an agreement to sell dated 28.9.2010. Admittedly, the defendant-appellant is in possession of the suit property in whose favour a sale deed has already been executed by the previous owner i.e. proforma respondents No. 2 and 3. Admit. Issue notice to the proforma respondents No. 2 and 3 by registered/speed post. List on the return/service of notice upon them. Lower Court record may be summoned to facilitate early hearing of the appeal. Until further orders of this Court, no sale deed in pursuance to the impugned judgment, order and decree dated 25.1.2018 shall be executed.