V.C. Daga, J.
1. This appeal is directed against the judgment and order dated 27.9.2001 passed by the 7th Additional District Judge, Pune, whereby the judgment and decree passed by the 2nd Joint Civil Judge, JD, Pimpri, on 17.1.1995 in Reg. Civil Suit No. 1209/89 came to be set aside holding that the trial Court lacked jurisdiction to entertain, try and decide the suit in question.
Factual Matrix:
2. The appellant herein (the 'plaintiff' for short) filed civil suit in the Court of Civil Judge, SD, Pune, contending that the plot bearing No. A-2 located in H block, MIDC, Pimpri Industrial Estate, Bhosari, Pune, was reserved for industrial purpose. The plaintiff applied for allotment of this plot under Regulation 4(ii) of the MIDC Disposal of Land Regulations, 1975 vide his application dated 10.1.1986 in the prescribed form (Ex.49), with a view to establish manufacturing unit. (The said plot is hereinafter referred to as 'suit plot' for the sake of brevity).
3. The defendants-respondents (the 'defendant' for short) rejected the said application of the plaintiff for the allotment of the said plot being reserved for amenity purposes. The plaintiff alleged that as per Section 2(ii) of the Maharashtra Industrial Act, 1961 (the 'MID' Act for short) wherever plot is reserved for an amenity, the State Government is required to specify such purpose by publishing notification in the Official Gazette. Since no such notification was ever published by the MIDC, as he contends that suit plot was never reserved for any amenity. All other neighbouring plots were allotted for industrial purposes. The plaintiff alleged that the defendants on 17.3.1989 published one public notice in daily 'Sakal' inviting applications for allotment of the plots for commercial purposes. The suit plot was shown to be available for allotment in the said advertisement as such refusal to allot suit plot to the plaintiff was malafide.
4. The plaintiff further alleged that the defendant-MIDC always followed the 'First Come First Served' principle for allotment of plots. That it never invited tenders for allotment of the plots. The plaintiff, thus, asserted that the MIDC was also bound to follow the same norm while considering his application and was bound to allot the said plot following the principle of 'First Come First Served' he being the first applicant. The plaintiff based on this assertion, sought declaration that he was entitled to the allotment of the said suit plot at the rate prevailing on the date of his application, i.e. on 10.1.1986. He valued suit claim at Rs. 600/- and paid Court fee thereon as prescribed under Section 6(iv)(i) of the Bombay Court Fees Act, 1959.
5. On being summoned, defendant appeared and contested the claim of the plaintiff on various grounds. Initially, it objected to the jurisdiction of the Civil Court at Pune to entertain and try the suit on the ground that a new court having been established at Pimpri-Chinchwad, the Pune Court has a jurisdiction to try the suit since the suit plot situate within the territorial jurisdiction of the Pimpri Court. Consequently, jurisdiction of the Court of Civil Judge, SD, Pune was sought to be excluded for want of territorial jurisdiction over the subject matter. The Civil Judge, SD, Pune, accepted the said objection taken by the defendant and by an order dated 4.8.1989 directed return of plaint to the plaintiff under Order VII Rule 10 of C.P.C. for presenting it to the proper Court. Parties to the suit were directed to appear before the Civil Judge, JD, Pimpri, on 5.8.1989.
6. In view of the aforesaid order, a fresh suit came to be filed being Reg. Civil Suit No. 332/89 in the Court of Civil Judge, JD, Pimpri. The defendants submitted their written statement. The trial Court, considering rival pleadings, was pleased to frame as many as 7 material issues; one of such issues was : whether suit has been properly valued?
7. The trial Court, after recording evidence and hearing parties to the suit, was pleased to decree the suit with direction to allot suit plot bearing No. A/2 situate in 'H' Block, located in 'MIDC Pimpri-Chinchwad industrial area' to the plaintiff at the rate prevailing as on 10.1.1986. The plaintiff was directed to comply with all necessary formalities.
8. Being aggrieved by the aforesaid judgment and decree passed by the trial Court in favour of the plaintiff, the respondent-defendant filed Regular Civil Appeal No. 339/1995 before the District Court, Pune. The said appeal was heard by the 7th Addl. District Judge, Pune, who was pleased to allow the appeal for the reasons stated hereinafter. In the result, judgment and decree passed by the trial Court came to be set aside.
9. The lower appellate Court while setting aside judgment and decree of the trial Court was pleased to hold that the suit claim was not properly valued and that no proper court fee was paid. The lower appellate Court determined the valuation of the suit claim in the sum of Rs. 9,43,000/- for the purposes of court fee and jurisdiction and called upon the plaintiff to pay court fee at Rs. 22,950/-.
10. It was further held by the lower appellate Court that looking to the valuation of the suit plot in the sum of more than Rs. 9 lacs, plaint was liable to be returned to the plaintiff under Order 7 Rule 10 of the C.P.c. for presentation to the Court of Civil Judge, SD, Pune. Suit came to be remanded to the Court of Civil Judge, SD, Pune for de-novo trial.
11. Being aggrieved by the said judgment and order passed by the 7th Addl. District Judge, Pune, dated 27.9.2001, present appeal has been preferred by the appellant-original plaintiff to challenge the said judgment and order.
Substantial Question of Law:
12. The Apex Court in a recent judgment in the case of Narayanan v. Kumaran reported in : (2004)4SCC26 ruled that in an appeal preferred under Order 43 Rule 1(u) of C.P.C., appellant has to comply with the requirement of Section 100 of the C.P.C. The appeal can be entertained only on the substantial question of law. In view of the Apex Court judgment, appellant was asked to frame substantial questions of law. He framed number of substantial questions of law, however, after recasting them following substantial question of law in the opinion of this Court warrants adjudication in this appeal.
'Whether on the touchstone of Section 21(2) of the Code of Civil Procedure read with Section 11 of the Suit Valuation Act the lower appellate Court was justified in entertaining and upholding an objection to the pecuniary jurisdiction of the trial Court, when no such objection was raised before the trial Court and no prejudice or consequent failure of justice was demonstrated by the appellant before it?'
Submissions:
13. The appellant, amongst others, have pressed into service two main contentions, one with respect to the merits of the order of remand and second with regard to valuation of the suit claim done by the lower appellate Court. The appellant at the end of his submission, pressed into service only one ground with regard to merits of the remand order. So far as second ground with regard to valuation of the suit claim is concerned, he did not press the same. On the contrary, he filed purshis accepting valuation of the suit claim done by the lower appellate Court for the purpose of court fee and jurisdiction and agreed to pay or deposit requisite court fees. The said purshis is taken on record and marked X for identification.
14. Learned Counsel for the appellant with respect to sole surviving issue submitted that defendants in their written statement neither raised any objection as to the pecuniary jurisdiction of the trial Court nor demonstrated any consequent failure of justice. In his submission, it was nt open for the respondent-MIDC to challenge the jurisdiction of the Civil Judge, JD, Pimpri-Chinchwad before the lower appellate Court when no such objection relating to the pecuniary jurisdiction of the trial Court, during the pendency of the suit was raised.
15. Learned Counsel for the appellant submits that in view of provision of Section 21 of the C.P.C. read with Section 11 of the Suit Valuation Act, 1887 it was obligatory on the part of the appellant to demonstrate that the objection was taken to the pecuniary jurisdiction of the trial Court when the suit was pending and also the demonstrate failure of justice or prejudice consequent to the trial of suit by the trial Court. In his submission, the lower appellate Court committed serious error of law by reversing judgment of the trial Court purely on technical ground holding it to be without jurisdiction at the instance of the original defendant, that too; in absence of any proof demonstrating consequent failure of justice or prejudice suffered by the appellant on merits.
16. Learned Counsel for the appellant pressed into service the Apex Court judgment in the case of Kiran Singh v. Chaman Paswan : [1955]1SCR117 and in the case of R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd. : AIR1993SC2094 in support of his submission. He also referred to judgment of the Pathumma v. Kuntalam Kutty : [1982]1SCR183 . Learned Counsel for the appellant, thus, prayed for setting aside the impugned judgment and order and also prayed for remanding the matter to the lower appellate Court with directions to decide the appeal on its own merits in accordance with law within reasonable time.
17. Per contra, learned Counsel for the respondents tried to support the impugned order and urged that objection regarding pecuniary jurisdiction of the trial Court to entertain and try the suit was very much taken in the written statement. She further submitted that the very fact that the objection to valuation of the suit claim was taken by the defendant itself was sufficient to demonstrate that the defendant was objecting to the pecuniary jurisdiction of the trial Court. If that be so, in her submission, it was not necessary for the respondent/defendant to demonstrate any prejudice or consequent failure of justice on merits. That is how, learned Counsel for the respondent tried to support the impugned order and prayed for dismissal of the appeal with costs.
Statutory Provisions:
18. I have given my thoughtful consideration to the rival submissions made by the respective Counsel appearing for the parties. Before proceeding to consider rival submission, it is useful to reproduce relevant provisions governing controversy, which run as under:
Section 21(2) of the C.P.C.
'21(2). Objection to jurisdiction (2) No objection as to the competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed 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 consequent failure of justice.'
Section 11 of the Suits Valuation Act reads as follows:
'11. Procedure where objection is taken on appeal or revision that a suit or appeal was not properly valued for jurisdictional purpose.
a. Notwithstanding in Section 99 of the Code of Civil Procedure, 1908 and objection that by reason of the over-valuation or under-valuation of a suit or appeal a Court of first instance or lower appellate Court which has no jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by the Appellate Court unless-
i. the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower appellate Court in the memorandum of appeal to that Court; or
ii. The appellate Court is satisfied for reasons to be recorded by it in writing that the suit or appeal was over valued or under valued and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.
b. If the objection was taken in the manner mentioned in Clause (a) of Sub-section (1), but, the Appellate Court is not satisfied as to both matters mentioned in Clause (b) of that sub-section and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance of Lower Appellate Court.
c. If the objection was taken in that manner and the Appellate Court is satisfied as to both those matters and has not those materials before it, it shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of appeals; but it remands the suit or appeal, or frames or refers issues fork trial or requires additional evidence to be taken, it shall direct its order to a Court competent to entertain the suit or appeal.
d. The provision of this section with respect to an appellate Court shall so far as they can be made applicable, apply to a Court exercising revisional jurisdiction or other enactment for the time being in force.
e. This section shall come into force on the 1st day of July, 1887. (Provided that, in the Hyderabad area of the State of Maharashtra it shall come into force on the date of commencement of the Suits Valuation (Maharashtra Extension and Amendment) Act, 1960.)'
CONSIDERATION:
19. Having heard the parties, it is not in dispute that the defendants in their written statement neither raised any objection to the pecuniary jurisdiction of the trial Court nor alleged that because of lack of pecuniary jurisdiction of the trial Court there has been consequent failure of justice. Initially, the suit was filed in the Civil Judge, SD, Pune. Defendants objected to the jurisdiction of the Pune Court on the ground that new court having been established at Pimpri (Chinchwad) where the suit plot is situate as such Pimpri Court alone was competent to entertain and try the suit. In view of the objection taken by the defendants as to the jurisdiction of the Court of Civil Judge, SD, Pune, the plaint came to be returned to the plaintiff under Order VII Rule 10 of the C.P.C. for presentation to the Court of Civil Judge, JD, Pimpri, when the suit came to be presented before the Civil Court as Pimpri, the defendants did not raise any objection to its pecuniary jurisdiction except alleging in para 22 of the written statement that the suit has not been properly valued and that proper court fee has not been paid.
20. With aforesaid factual matrix, let me turn to laid down by the Apex Court on the question raised in this appeal. The Supreme Court had occasion to consider the provisions of Section 21 of the C.P.C. as it stood then, as well as that of Section 11 of the Suit Valuation Act, for the first time, in Kiran Singh v. Chaman Paswanj, : [1955]1SCR117 , wherein speaking for a 4-Judge Bench of the Supreme Court, Venkatrama Ayyar, J. inter alia, observed as follows:
'The policy underlying Sections 21 and 99, C.P.C. 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 prejudice on the merits...'
(Emphasis supplied)
The Supreme Court then referred to decision of the Privy Council in the case of Rachappa Subrao Jadhav v. Shidappa Venkatrao Jadhav (4) LR 46IA 24, wherein the Privy Council held that the objection to the pecuniary jurisdiction of the court to be 'the most technical of technicalities' and observed as follows:
'The Court Fees Act was passed not to harm a litigant with a weapon of technicality against his opponent but to secure fr the benefit of the State... The defendant in this suit seeks to utilise the provisions of the Act not to safeguard the interest of the State, but to obstruct the plaintiff he does not contend that the Court wrongly decided to the detriment of the revenue but that it dealt with the case without jurisdiction in the circumstances this plea, advanced for the first time at the hearing of the appeal in District Court is misconceived, and was rightly rejected by the High Court.'
(Emphasis supplied)
The Apex Court further observed thus:
'It is next contended that even treating the matter as governed by Section 11 of the Suits Valuation Act, there was prejudice to the Appellants, in that by reason of the under-valuation, their appeal was heard by the court of inferior jurisdiction, while they were entitled to a hearing by the High Court on the facts. It was argued that right of appeal was a valuable one, and that deprivation of right of the appellants to appeal to the high Court on facts must therefore, be held, without more, to constitute prejudice, this argument proceeds on a misconception. The right of appeal is no doubt a substantive right, and its deprivation is a serious prejudice; but the appellants have not been deprived of the right of appeal against the judgment of the subordinate Court. The law does provide an appeal against the judgment of the District Court and the plaintiffs have exercised that right. Indeed, the under-valuation has enlarged the appellant's right of appeal, because they would have only a right of one appeal and that to the High Court if the suit had been correctly valued, by reason of the under-valuation, they obtained right to two appeals, one to the District Court and another to the High Court. The complaint the appellants really is not that they have been deprived of a right of appeal against the judgment of the Subordinate Court, which they had not been, but that an appeal on the fax against the judgment was heard by the District Court and not by the High Court. This objection, therefore, amounts to this that a change in the forum of appeal is by itself a matter of prejudice for the purpose of Section 11 of the Suits Valuation Act.'
'The question, therefore, is, can a decree passed by a Court which had jurisdiction to entertain it only by reason of under-valuation be set aside on the ground that on a true valuation that Court was competent to entertain the appeal.'
'Three High Courts have considered the matter in full benches, and have come to the conclusion that mere change of forum is not a prejudice within the meaning of Section 11 of the Suits Valuation Act, in our judgment the opinion expressed in these decisions is correct. Indeed, it is impossible on the language of the Section to come to a different conclusion. If the fact of an appeal being heard by a Subordinate Court or District Court where the appeal would have lain to the High Court if the correct valuation had been given, is itself a matter of prejudice, then the decree passed by the Subordinate Court or the District Court must, without more, be liable to be set aside and the words 'unless the over-valuation of under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its own merits' would become wholly useless... And the prejudice envisaged by that section therefore must be something other than the appeal being heard in the different forum.....'
The Apex Court further observed:
'So far the definition of 'prejudice' has been negatived in terms - that it cannot be mere change of forum or mere error in the decision on the merits. When then is positively prejudice for the purpose of Section 11. It has been suggested that if there was no proper hearing of the suit or appeal and that had resulted in injustice that would be prejudice within Section 11 of the Suits Valuation Act. Another instance of prejudice is when a suit which ought to have been filed as an original suit is filed as a result of under-valuation on the small cause side. The procedure for trial of suits in the Small Cause Court is summary; there are no provisions for discovery or inspection; evidence is not recorded in extenso, and there is no right of appeal against its decision. The definition thus losses the benefit of an elaborate procedure and a right of appeal which he would have had, if the suit had been filed on the original side. It can be said in such a case the disposal of the suit by the Court of Small Causes has prejudicially affected the merits of the case... the jurisdiction that is conferred on appellate Courts under that section is in equitable one to be exercised when there has been an erroneous assumption of jurisdiction by a Subordinate Court as a result of over-valuation of under-valuation and a consequential failure of justice.....'
Enunciating the provisions of Section 11 further and reading Clause (a) and (b) of the section, Apex Court observed thus:
'There is considerable authority in the Indian Courts that Clauses (a) and (b) of Section 11 of the Suits Valuation, Act should be read conjunctively, notwithstanding the use of the word 'or'. If that is the correct interpretation, the plaintiffs would be precluded from raising the objection about jurisdiction in an appellate Court. But even if two provisions are to be construed distinctively, and the parties held entitled under Section 11(1)(b) to raise an objection for the first time in the appellate Court, even then, the requirement as to prejudice has to be satisfied, and the party who has resorted to a forum of his own choice of his own valuation cannot himself be heard to complain of any prejudice. Prejudice can be a ground for relief only when it is due to the action of the another party and not when it results from one's own act. Courts cannot recognize that as prejudice which flows from the action of the very party who complains about it. Even apart from this, we are satisfied that no prejudice was caused to the appellants by their appeal having been heard by the District Judge. There was a fair and full hearing of the appeal by the Court; it gave its decision on the merits on a consideration of the entire evidence in the case, and no injustice is shown to have resulted in its disposal of the matter..'
In the light of the aforesaid law, it is clear that even if it is held that because of under-valuation of the suit, the Civil Court (J.D.), Pimpri, a Court inferior in hierarchy to the Civil Court (SD) Pune has decided the suit without it having pecuniary jurisdiction to try the suit, even then, the defendants cannot succeed unless they demonstrate and prove that they have suffered any prejudice or that there was consequent failure of justice on merits. No prejudice or consequent failure of justice could be demonstrate by the defendant. Indeed, the trial Court had allowed every opportunity available to the defendant to lead evidence in support of its contest to the claim made by the plaintiff. Indeed, under-valuation of the suit has enlarged the defendant's right of appeal, while they would have only a right of one appeal to the High Court if the suit had been correctly valued. By reason of under-valuation the defendant would be entitled to exercise two rights of appeal, one to the District Court and another to the High Court. As such, no prejudice whatsoever has been suffered by the defendant. There is also no consequence failure of justice on merits. The learned District Judge, thus, was wrong in setting aside the judgment and decree passed by the trial Court. As noticed above, it is settled law that objection to the territorial and pecuniary jurisdiction of a Court is 'the most technical of technicalities' and that such a technicality cannot be allowed to be used to set aside the decree on the technical ground. As such, the impugned judgment and order is clearly wrong and liable to be set aside.
21. The aforesaid view has been reiterated by the Supreme Court in Koopalian Uneen's daughter Pathuamma v. Koopalian Lineen's son Kuntalam Kutty dead by lrs. : [1982]1SCR183 and in R.S.D.V. Finance Co. Pvt. Ltd. v. Shri Vallabh Glass Works Limited : AIR1993SC2094 . In earlier decision, the Supreme Court while enunciating the provisions of Section 21(1) CPC, which is analogous in terms of Section 21(2) of C.P.C., held as follows:
'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:
i. The objection was taken in the Court of first instance.
ii. It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement.
iii. There has been a consequent failure of justice.
All these conditions must co-exist.
Now the present case condition Nos. 1 and 2 are no doubt fully satisfied; but then before two appellate Courts below could allow the objection to be taken, it was further necessary that a case of failure of justice on account of the place of suing having been wrongly selected was made out. Not only was no attention paid to this aspect of the matter but no material exist on the record from which such failure of justice may be inferred. We called upon the learned Counsel for the contesting respondents to point out to us even at this stage any reason why we should hold that a failure of justice had occurred by reason of Manjeri having been chosen as the place of suing but he was unable to put forward any. In this view of the matter, we must hold that the provisions of the sub-sections above extracted made in imperative for the District Court and the High Court not to entertain the objection whether or not it was otherwise will founded. We, therefore, refrain from going into the question of the correctness of the finding arrived at any the High Court that the Manjeri Court had no territorial jurisdiction to take cognizance of the application praying for final decree.'
'4. In the result, we accept the appeal, set aside the judgment of the High Court and remand the case back to it for deciding on merits the appeal which culminated in that judgment...' AIR, para 3 page 1684.
22. The same view has been followed by the various High Courts (i) Mazid Ali Lrs v. Lakshman Rabidas (ii) Sukhdeo Singh Raj Purohit v. State of Rajasthan, (iii) Surinder Singh Aurora v. Maj. Sohan Singh, : AIR1986Delhi293 .
23. On the above canvas of law, the Addl. District Judge has committed an error by setting aside the judgment and decree passed by the trial Court, purely on the technical ground that the trial Court lacked pecuniary jurisdiction to try the suit. As per settled law, the learned Judge ought to have pronounced his judgment on all issues on merits rather than setting aside the decree on one technical ground. In Fomento Resorts And Hotels Ltd. v. Gustavo Ranato Da Cruz Pinto, : [1985]2SCR937 , a three-Judge Division Bench of the Supreme Court, disapproving such disposal of the suit on a single ground, without pronouncing on all points, observed thus:
'29. In a matter of this nature where several contentions factual and legal are urged and when there is scope of an appeal from the decision of the Court, it is desirable as was observed by the Privy Council long time ago to avoid delay and protection of litigation that the Court should, when dealing with any matter, dispose of all the points and not merely rest its decision on one single point.'
24. So far as the objection raised by the defendant with respect to the valuation of the suit is concerned, it cannot be said to be an objection to the pecuniary jurisdiction of the trial Court as is sought to be canvassed by the learned Counsel for the respondent. The submission advanced in this behalf is misplaced. In view of the purshis filed by the appellant accepting valuation of the suit done by the lower appellate Court and readiness to pay deficit court fee; objection to the improper valuation of the suit and payment of deficit court fee does not survive.
25. In the above premises, impugned order dated 27.9.2001 passed by the 7th Additional District Judge, Pune, is set aside. In the result, appeal is allowed and matter is remanded back to the District Court, Pune, for its expeditious disposal on its own merits in accordance with law, as expeditiously as possible, preferably within a period of 6 months from the date of receipt of this order, in view of long pendency of the matter from 1989 onwards, to meet the ends of justice, however, after recovering deficit court fee within 15 days from the date of receipt of this order.
26. It is needless to mention that to meet the ends of justice, the ad-interim relief granted by this Court in Civil Application No. 413 of 2002 will continue until disposal of the appeal by the District Court. The defendant is directed not to create any third party interest in the suit plot and not to change its user in any manner, pending disposal of the appeal by the District Court, Pune.
27. All concerned to act on the copy of this judgment duly authenticated by the Court ASSOCIATE PA.
Certified copy expedited.