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2022 DIGILAW 1946 (ALL)

Gandhi Ashram Khadi Bhandar v. Vijai Kumar Sharma

2022-12-09

J.J.MUNIR

body2022
JUDGMENT : This revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (for short, 'the Act of 1887'), is directed against an order of the Additional District Judge/Special Judge (SC/ST Act), Banda dated 17.11.2022 made in S.C.C. Suit No. 2 of 2008, rejecting the defendants' application, objecting to the Court's pecuniary jurisdiction. 2. Shorn of unnecessary details, the facts giving rise to this revision are that S.C.C. Suit No. 2 of 2008 was instituted by the plaintiff-respondents before the District Judge, Banda, sitting as the Judge, Small Cause Court. This was done, because at the time of institution of the suit, the pecuniary jurisdiction to try a small cause suit with the Judge, Small Cause Court, that is to say, the Civil Judge (Sr. Div.) in the State of Uttar Pradesh, was up to the valuation of Rs. 25,000/-. The suit here was valued at Rs. 57,060/- 3. The suit was, therefore, instituted before the District Judge and tried by the Additional District Judge/ Special Judge (SC/ST Act), Banda, who decreed it vide his judgment and decree dated 25.07.2016. A revision against the said decree was carried to this Court by the tenant-revisionist, being S.C.C. Revision No. 50 of 2019. This Court vide judgment and order dated 13.09.2022 set aside the decree and remanded the suit for trial afresh, except Issue No. 4, the finding whereon was upheld. That issue related to the defence of the tenant being struck off under Order XV Rule 5 CPC. 4. Post remand, the tenant-revisionist raised an objection through an application dated 17.11.2022 before the Trial Judge that on account of change in pecuniary jurisdiction of the Judge, Small Cause Court vide U.P. Civil Laws (Amendment) Act, 2015 w.e.f. 07.12.2015, it was the Judge, Small Cause Court, who was competent to try the suit and not the Additional District Judge, exercising those powers in case of a suit beyond the pecuniary jurisdiction of the Judge, Small Cause Court. This application has been rejected by the learned Additional District Judge, trying the suit vide the order impugned dated 17.11.2022. 5. Aggrieved, this revision has been preferred by the tenant-revisionist. 6. Heard Mr. Shailendra, learned Counsel for the revisionists and Mr. Gulrez Khan, learned Counsel for the plaintiff-respondent No. 1. 7. This application has been rejected by the learned Additional District Judge, trying the suit vide the order impugned dated 17.11.2022. 5. Aggrieved, this revision has been preferred by the tenant-revisionist. 6. Heard Mr. Shailendra, learned Counsel for the revisionists and Mr. Gulrez Khan, learned Counsel for the plaintiff-respondent No. 1. 7. It is submitted by the learned Counsel for the revisionists that once the pecuniary jurisdiction was altered by virtue of the U.P. Civil Laws (Amendment) Act, 2015, the suit that was up for trial before the Additional District Judge in consequence of the order of remand, obliged the learned Judge to direct a return of the plaint for presentation to the Court of competent jurisdiction. By rejecting the application questioning his pecuniary jurisdiction, the Trial Judge has assumed jurisdiction not vested in him. The order impugned is, therefore, patently illegal. It is pointed out that when the suit was instituted, going by the valuation thereof, which is Rs. 57,060/-, it was certainly beyond the jurisdiction of the Judge, Small Cause Court. But, after remand, in view of the supervening amendments vide U.P. Civil Laws (Amendment) Act, 2015, that has come into effect from 07.12.2015, the suit is not cognizable by the Additional District Judge, but by the Judge, Small Cause Court. The trial before the Additional District Judge, therefore, is without jurisdiction. 8. The learned Counsel for the revisionists has placed reliance on the decision of the Supreme Court in Om Prakash Agarwal since deceased through legal representatives and others v. Vishan Dayal Rajpoot and another, (2019) 14 SCC 526 . Learned Counsel for the revisionists has drawn attention of the Court to the holding in Om Prakash Agarwal (supra), which reads: “54. As noted above, the proviso to sub-section (2) provides that figure Rs 5000 shall be construed to Rs 25,000. By the U.P. Civil Laws (Amendment) Act, 2015, the figure of Rs 25,000 stood substituted by Rs 1 lakh. Reading sub section (2) read with proviso and U.P. Civil Laws (Amendment Act), 2015 clearly means that small cause suits with valuation not exceeding Rs 1 lakh shall be cognizable by the Court of Small Causes. When a small cause suit not exceeding value of Rs 1 lakh is cognizable by the Court of Small Causes, obviously, no other court can take cognizance. When a small cause suit not exceeding value of Rs 1 lakh is cognizable by the Court of Small Causes, obviously, no other court can take cognizance. The Additional District Judge to whom small causes suit in question was transferred since its valuation was more than of Rs 25,000 was not competent to take cognizance of the suit after the U.P. Civil Laws (Amendment) Act, 2015 w.e.f. 7-12-2015, when the suit in question became cognizable by the Small Cause Court i.e. the Court of Civil Judge, Senior Division. To the above extent, the judgment of the learned Single Judge in Shobhit Nigam case [Shobhit Nigam v. Batulan, 2016 SCC OnLine All 2605 : (2016) 119 ALR 826] has to be approved and the judgment of the Single Judge in Pankaj Hotel [Pankaj Hotel v. Bal Mukund, 2017 SCC OnLine All 2855 : (2018) 1 All LJ 17] laying down that even after 7-12-2015, the Additional District Judge had jurisdiction to decide the suit in question cannot be approved.” 9. The learned Counsel for the plaintiff-respondent has opposed the motion to admit this revision to hearing. He urges that the principle in Om Prakash Agarwal, otherwise well settled, is that objection, as to pecuniary jurisdiction has to be taken at the earliest point of time and not after the trial has gone through. He submits that in this case, the trial has been concluded and judgment is to be delivered. Therefore, the issue of pecuniary jurisdiction cannot be raised by the tenant at this stage, which in any case he has raised mala fide to delay judgment in the eviction suit. 10. This Court has carefully considered the submissions advanced by the learned Counsel for parties and perused the record in support of the motion. 11. In the first instance, the jurisdiction to try suits for eviction by the lessor against the lessee of a building after determination of the lease was conferred upon the Judge, Small Cause Court vide The Uttar Pradesh Civil Laws (Amendment) Act, 1972 (U.P. Act No. 37 of 1972) enacted by the State Legislature with Presidential assent. This was so, because under the Central Statute, the Small Cause Court does not enjoy jurisdiction by virtue of Clause (4) of the Second Schedule to the Act of 1887 to entertain a suit for possession of immovable property or for the recovery of an interest in such property. This was so, because under the Central Statute, the Small Cause Court does not enjoy jurisdiction by virtue of Clause (4) of the Second Schedule to the Act of 1887 to entertain a suit for possession of immovable property or for the recovery of an interest in such property. 12. Suits for eviction after the determination of lease do not involve generally questions of title and, therefore, the State Amendment was brought to entrust these suits to a Court following a summary procedure. But, while conferring jurisdiction upon the Judge, Small Cause Court, the pecuniary jurisdiction introduced vide U.P. Act No. 37 of 1972 was limited to a value of Rs. 5000/-. By U.P. Act No. 17 of 1991, enforced w.e.f. 15.01.1991, the pecuniary jurisdiction of the Judge, Small Cause Court was enhanced from Rs. 5000/-to Rs. 25,000/-, amending Section 15 (2) and (3) of the Central Act. 13. The Uttar Pradesh Civil Laws (Amendment) Act, 1972 also amended Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887 as applicable in the State of U.P., where by virtue of sub-Section (2) of Section 25, the State Government was empowered by notification in the Official Gazette to confer upon any District Judge or Additional District Judge the jurisdiction of a Judge of the Court of Small Causes under the Act of 1887 for the trial of suits, irrespective of their value. Under sub-Section (3) of Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887, as amended by U.P. Act No. 37 of 1972, the State Government was empowered to delegate to the High Court by notification in the Official Gazette its powers under sub-Section (2) of Section 25. In substance, therefore, by notifications issued by the High Court, the power to try small cause suits beyond a limited pecuniary jurisdiction and of unlimited value was conferred upon the District Judges, including the Additional District Judges in the State. 14. There is no doubt that post amendment to the Act of 1887 brought about by the U.P. Civil Laws (Amendment) Act, 2015, the pecuniary jurisdiction of the Judge, Small Cause Court to try a small cause suit, including a suit for eviction, has been raised from Rs. 25,000/-to Rs. 1,00,000/-. This has been effected by the amendment made to the proviso to sub-Section (2) of Section 15 of the Act of 1887. 25,000/-to Rs. 1,00,000/-. This has been effected by the amendment made to the proviso to sub-Section (2) of Section 15 of the Act of 1887. The suit at the time it was instituted way back in the year 2008 with a valuation of Rs.57,060/-was beyond the pecuniary jurisdiction of the Judge, Small Causes Court and, therefore, instituted before the District Judge, exercising powers of the Judge, Small Causes Court in a suit beyond the pecuniary jurisdiction of the Small Causes Court. There was no occasion also to raise any objection at that time relating to the pecuniary jurisdiction. However, judgment in the suit was delivered by the Additional District Judge on 25.07.2016 and raise in the pecuniary jurisdiction of the Judge, Small Causes Court, was brought about by the U.P. Civil Laws (Amendment) Act, 2015 w.e.f. 07.12.2015. It is certainly not the revisionists' case that judgment was reserved prior to 07.12.2015 and that it was delivered on 25.07.2016 with no opportunity to him to raise an objection to the pecuniary jurisdiction, based on the supervening amendment. 15. The tenant-revisionists challenged the decree passed by the Additional District Judge before this Court vide S.C.C. Revision No. 50 of 2019. A perusal of the judgment in the said revision, which was allowed, setting aside the decree passed by the Additional District Judge, does not show that it was urged ever before this Court in revision that the Additional District Judge was no longer competent to try the suit, as it had been removed from his pecuniary jurisdiction, by virtue of the amendment that came in before the Trial Judge's judgment. Post remand also, it does not appear from a reading of the order impugned that the tenant has raised or at least pressed his objections about the pecuniary jurisdiction of the learned Additional District Judge at the earliest point of time. The order impugned reveals that after the remand, the whole trial has gone through and judgment alone remains to be delivered. It is at this stage that the revisionists seem to have pressed their application dated 17.11.2022, which has come to be rejected by the Trial Judge. Objection as to lack of territorial jurisdiction or pecuniary jurisdiction ought to be taken at the earliest point of time, else it would be deemed to have been waived. It is at this stage that the revisionists seem to have pressed their application dated 17.11.2022, which has come to be rejected by the Trial Judge. Objection as to lack of territorial jurisdiction or pecuniary jurisdiction ought to be taken at the earliest point of time, else it would be deemed to have been waived. This is the clear purport of the provisions of Section 21 of the Code of Civil Procedure, which read: “21. Objections to jurisdiction.—(1) No objection as 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 where 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 issues 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.”(emphasis by Court) 16. This question was one that directly fell for consideration of their Lordships of the Supreme Court in Om Prakash Agarwal, where it was observed: “57. The policy underlying Section 21 of Code of Civil Procedure is that when the case has been tried by a court on merits and the judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it has resulted in failure of justice. The provisions akin to Section 21 are also contained in Section 11 of the Suit Valuation Act, 1887 and Section 99 of the Code of Civil Procedure. This Court had the occasion to consider the principle behind Section 21, Code of Civil Procedure and Section 11 of the Suit Valuation Act, 1887 in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 . This Court had the occasion to consider the principle behind Section 21, Code of Civil Procedure and Section 11 of the Suit Valuation Act, 1887 in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 . In para 7 of the judgment following was laid down: (AIR p. 342) “7. … The policy underlying Sections 21 and 99 of the Civil Procedure 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 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. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act.” 61. In Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791 , this Court had again considered Section 21 and other provisions of the Code of Civil Procedure. In para 30, following has been laid down: (SCC pp. 803-04) “30. … The jurisdiction of a court may be classified into several categories. The important categories are (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject-matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. 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. Jurisdiction as to subject- matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject-matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity.” 63. Jurisdiction as to subject- matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject-matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity.” 63. Now, reverting back to the facts of this case it is apparent from the judgment dated 22-10-2016 of the Additional District Judge, that no objection to the competence of the Additional District Judge to decide the case was taken by any of the parties. No objection having been taken to the pecuniary jurisdiction of the Additional District Judge, Section 21 of the Civil Procedure Code comes into play. Sub-section (2) of Section 21 provides that no objection as to the competence of the court with reference to the pecuniary limits of the jurisdiction shall be allowed by any appellate or Revisional Court unless conditions mentioned therein are fulfilled. No objection has been raised by the respondent tenant regarding competence of the court. Sub-section (2) precludes the revisionist to raise any objection regarding competence of the court and further Revisional Court ought not to have allowed such objection regarding competence of Court of Additional District Judge to decide the suit. The respondent tenant did not raise any objection regarding competence of the court and took a chance to obtain judgments in his favour on merits, he cannot be allowed to turnaround and contend that the Court of Additional District Judge had no jurisdiction to try the small cause suit and the judgment is without jurisdiction and nullity. Section 21 has been enacted to thwart any such objection by unsuccessful party who did not raise any objection regarding competence of court and allowed the matter to be heard on merits. Further, in deciding the small cause suit by the Additional District Judge, the tenant has not proved that there has been a consequent failure of justice. 64. The High Court in the impugned judgment has not adverted to Section 21 of the Code of Civil Procedure. In the judgment of Shobhit Nigam v. Batulan, 2016 SCC OnLine All 2605 : (2016) 119 ALR 826, also, effect of Section 21 was neither considered nor raised. Section 21 contains a legislative policy which policy has an object and purpose. The High Court in the impugned judgment has not adverted to Section 21 of the Code of Civil Procedure. In the judgment of Shobhit Nigam v. Batulan, 2016 SCC OnLine All 2605 : (2016) 119 ALR 826, also, effect of Section 21 was neither considered nor raised. Section 21 contains a legislative policy which policy has an object and purpose. The object is also to avoid retrial of cases on merit on basis of technical objections. 65. There is another judgment of the Single Judge of the High Court referred to by the learned counsel for the respondent i.e. SCC Revision No. 305 of 2016, Tejumal v. Mohd. Sarfraz [Tejumal v. Mohd. Sarfraz, 2016 SCC OnLine All 2606 : (2017) 121 ALR 392]. In the above case, the learned Single Judge had allowed the revision under Section 25 against the judgment dated 12-8-2016 passed by the Additional District and Sessions Judge on the ground that the judgment of the Additional District Judge was without jurisdiction. In paras 7 to 9 of the judgment, the High Court had noticed the judgment of this Court in R.S.D.V. Finance Co. (P) Ltd. v. Shree Vallabh Glass Works Ltd., (1993) 2 SCC 130 wherein it was held that in view of Section 21(1) of the Code of Civil Procedure, objection as to the place of suing should be taken by the party concerned in the court of first instance at the earliest possible opportunity and the objection to this effect shall not be allowed by the appellate or Revisional Court but relying on the judgment of this Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 , the learned Single Judge held that defect of jurisdiction whether pecuniary or territorial or to the subject-matter cannot be cured and can be set up at any stage of the proceeding. 69. We thus hold that even when the Court of Additional District Judge was not competent to decide the small causes suit in question on the ground that the pecuniary jurisdiction is vested in the Court of Small Causes i.e. Civil Judge, Senior Division w.e.f. 7-12-2015, no interference was called in the judgment of the Additional District Judge in the exercise of revisional jurisdiction by the High Court in view of the provisions of Section 21 of the Civil Procedure Code.” 17. The aforesaid position of the law makes it clear that ‘pecuniary jurisdiction’ and ‘territorial jurisdiction’ are different from ‘jurisdiction relating to subject matter’ or inherent lack of jurisdiction. The first two have to be raised at the earliest opportunity; else, these must be deemed to be waived. As remarked by the Supreme Court in Om Prakash Agarwal, the legislative policy is not to defeat a concluded trial on merits on the basis of a technical objection, like pecuniary or territorial jurisdiction. This precisely is the case here, where the tenant has allowed the trial to proceed through all stages and taken the objection about lack of pecuniary jurisdiction at a stage when, post remand, the trial has been concluded and the judgment already on the anvil of delivery. 18. In the considered opinion of this Court, there is no merit in this revision. It fails and is dismissed.