S.G. Mahajan, J.
1. Heard Shri R.V. Gaikwad, the learned Counsel for appellant and Shri R.B. Pandharkar, the learned Senior Counsel for respondent No. 1. None appeared for respondent No. 2.
2. Respondent No. 1 Shrawan is the father of appellant Sharda and respondent No. 2 Vikas. Respondent No. 1 brought a suit, being Regular Civil Suit No. 1264 of 1996, in the Court of 8th Joint Civil Judge, Junior Division Nagpur, against the appellant and respondent No. 2 for the possession of the suit house claiming that their possession over the house is permissive.
3. The suit was decreed by the 8th Joint Civil Judge, Junior Division, Nagpur against which the present appellant and respondent No. 2 filed Regular Civil Appeal No. 454 of 2001. The learned 5th ad hoc Additional District Judge, Nagpur by his judgment and order dated 14-2-2002, dismissed the said appeal. Thereafter the present appellant alone has filed the instant second appeal.
4. The learned Counsel for appellant submitted that after the death of husband of appellant, respondent No. 1 gave her shelter. He also took some of the retirement benefits of the appellant's husband. The learned Counsel contended that the appellant is getting only Rs. 1850/- p.m. as the pensionary benefits. According to him the appellant being the widowed daughter of respondent No. 1 having insufficient means, is entitled to maintenance from respondent No. 1 in the form of accommodation. In support of his contention the learned Counsel for appellant cited (1) Smt. Kanta Moni Saha v. Shyam chand Pramanick (Saha), : AIR1973Cal112 , and (2) Laxmappa & others v. Balwa Kom Tirkappa Chavdi, : AIR1996SC3497 . These cases are on the point of entitlement of the widowed daughter to the maintenance from her father and his moral obligation to support.
5. The learned Senior Counsel for respondent No. 1 canvassed that whether the appellant is a destitute and having no support, is a question of fact. He pointed out that the appellant has not taken a plea in her written statement that she is entitled to be maintained by her father and such plea cannot be taken for the first time in the second appeal. In support of his proposition that such a plea cannot be taken for the first time in second appeal; he cited (1) Vyankati v. Suganchand 1976 Mh.L.J. 49 and (2) Krishnanath Vassu Malwankar & others v. Leopoldo Hilario Piednde Pereira Lopes Dalgado By L.Rs. Mrs. Dulce Jose Marin Dalgado 1991 Mh.L.J. 439. In the case of Vyankati v. Suganchand, it was laid down that the appellant abandoning the plea before the First Appellate Court cannot raise the plea again the second appeal. In Krishnanath Vassu Malwankar's case the defendant had for the first time in second appeal contended that the tenancy was agricultural one and he was protected under the Goa, Daman and Diu Agricultural Tenancy Act. It was held that such a question could not be raised for the first time in second appeal.
6. On going through the pleadings of the appellant (who is the original defendant No. 2) it is found that she has not claimed the accommodation from her father towards maintenance. She has not pleaded that since she is having insufficient means and no support, her father should provide her accommodation towards maintenance. The learned Counsel for appellant pointed out that in para 2 of the written statement of the appellant she has stated at the end of that para that she is a destitute. But on going through the said pleadings it will be seen that she has averred that she is destitute in different context. She has pleaded that she is residing with her brother in the said house as a destitute. By no means the said pleading can be construed to say that the appellant has claimed accommodation from her father towards the maintenance on the ground that she is a destitute widowed daughter.
7. The findings of the courts below are the findings of facts, and the same cannot be disturbed in this second appeal. The learned Counsel for appellant submitted that if there is non-appreciation of evidence on the part of the courts below the findings can be upset in the second appeal. In support of this proposition he cited Employees State Insurance Corporation Bombay v. R.P. Gundu (Firm) & another 1983 Mh.L.J. 761. This case lays down that if the findings of facts are recorded without appreciating evidence and material tendered by parties the findings are not binding in second appeal. However, as already discussed above there is no plea of the appellant that she is entitled to the accommodation towards maintenance on the ground that she is a destitute widowed daughter. This stand is taken by the appellant here for the first time which is not permissible. The learned Counsel for appellant submitted that what is to be seen is the substance of the pleadings. In support of his contention he cited D.V. Panse (Major) & another v. Laxminarayan Khar & another, : (2003)2BOMLR536 . He pointed out the observations in para 11 of D.V. Panse v. Laxminarayan Khar. However, if the pleadings of the appellant in her written statement are taken into consideration one will find that in substance also, she has not claimed the accommodation towards the maintenance on the ground that she is widowed daughter of respondent No. 1. The permissive possession of the appellant and respondent No. 2 was proved and in fact respondent No. 2, who is the brother of the appellant has accepted the decree and has vacated the premises also.
8. The appellant has also raised the point of valuation. The learned Counsel for appellant submitted that the respondent No. 1 has valued the claim of Rs. 5000/- only whereas the own admission of respondent No. 1 in his cross-examination shows that the expenses incurred over the construction are of Rs. 1,50,000/-. So the learned Counsel canvassed that the suit is under valued and the matter needs to be remanded to the trial Court with a direction to hold an enquiry into the valuation. The learned Counsel for appellant further submitted that at the relevant time the pecuniary jurisdiction of Civil Judge, Junior Division, was Rs. 25,000/- and in this case since the valuation exceeds that amount, the plaint ought to be returned to the plaintiff for presentation to the Court of Civil Judge, Senior Division.
9. It can be seen that in this case no enquiry as to the valuation of the claim was held by the trial Court. So we cannot at once say that the valuation of the house was Rs. 1,50,000/-. No doubt the respondent No. 1 might have stated in evidence that the expenses incurred over the construction of house were to the tune of Rs. 1,50,000/-. He may state such an exorbitant value for so many reasons. The cross-examination of respondent No. 1 was not from the point of view of the valuation of the suit house for the purpose of pointing out that the Court of Civil Judge Junior Division had no jurisdiction to try the suit. It was in a different context. Moreover the possession of the two rooms was only claimed.
10. The learned Senior Counsel for respondent No. 1 submitted that irrespective of the question as to what was the valuation of the suit house at the relevant time the point of valuation cannot be raised at this stage. The learned Counsel pointed out that although in para 7 of the written statement the appellant has submitted that the suit is hopelessly under valued and ought to be rejected on that count, the appellant did not raise this question later on at any point of time and she has raised this objection for the first time in this second appeal.
11. In this connection it is worthwhile to go through the provision of section 11 of the Suits Valuation Act, it reads:
'11(1): Notwithstanding anything in section 99 of the Code of Civil Procedure, 1908, an 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 had no jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an Appellate Court unless---
(a) 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
(b) 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.'
Section 11 of Suits Valuation Act is in two parts, Clause (a) speaks about the stage at which the objection about the over valuation or under valuation is to be raised and Clause (b) states about the need to examine whether the over-valuation or under-valuation of the suit has affected or prejudiced the disposal of the suit or appeal on its merits. It is worth-noting that in this case though the appellant had pleaded in her written statement that the suit was under-valued, no issue was framed by the trial Court in that respect. Issue as to the valuation was not at all framed. The appellant did not apply for holding an enquiry into the valuation of the suit house before the Court proceeded to record the evidence. Subsequently also at the stage of evidence appellant did not apply for framing such issue and treating it as a preliminary issue. Thus the appellant is deemed to have waived that plea. Then even after the suit was decreed, when the appellant filed first appeal, she did not make any grievance about the memo. On the other hand she also valued the appeal on the original valuation. Thus it can be said that she has acquiesced in the valuation made by the respondent No. 1.
12. Apart from the above aspect one has to see whether any prejudice was caused in the disposal of suit by the courts below because of the under-valuation of the suit. The learned Counsel for appellant cited A.KA.CT.V.CT. Meenakshisundaram Chettiar v. A.KA.CT. Venkatchalam Chettiar, : [1979]3SCR385 . This case enunciates that the valuation of the suit should be adequate and reasonable and if on the material available before it the Court is satisfied that the value of relief as estimated by the plaintiff in the suit is under valued the plaint is liable to be rejected under Order 7, Rule 11(b) Civil Procedure Code. However, this case will have no application to the present case because in that case the objection to the valuation of the suit was taken at the initial stage, the issue was framed and it was adjudicated and the provision of section 11 of Suits Valuation Act which prohibits the party to raise the questions of over-valuation or under-valuation for the first time at the appellant stage except in the case where the disposal of suit is affected on merits, was not in picture. In section 11 of Suits Valuation Act reference is made to section 99 of the Code of Civil Procedure. As per section 99 of the Civil Procedure Code the decree can be reversed if it is without the jurisdiction of the Court. However, section 11 of Suits Valuation Act is an exception which lays down that irrespective of what is stated in section 99 of Civil Procedure Code, the decree will not be a nullity on the ground of over-valuation or under-valuation of suit, if the objection is not raised at the first instance and if the over-valuation or under-valuation would not affect or prejudice the disposal of the suit on merits. The prejudice contemplated by section 11 of the Suits Valuation Act is a prejudice on merits and not the prejudice that the Court which ought to have decided the suit has not decided it.
13. The learned Senior Counsel for respondent No. 1 cited in this connection Kiran Singh & others v. Chaman Paswan & others, : [1955]1SCR117 . It was enunciated that the principle that underlies section 11 of Suits Valuation Act, 1887, is that a decree passed by a Court, which would have had no jurisdiction to hear a suit or appeal but for over-valuation or under-valuation, is not to be treated as what is would be but for the section, null and void, and that an objection to jurisdiction based on over-valuation or under-valuation should be dealt with under that section and not otherwise. It was further observed that the policy underlying section 21 and section 99 of Civil Procedure Code and section 11 of the Suits Valuation Act is the same, namely, that when a case is being tried by a Court on the merits and the 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. While explaining as to what is the prejudice as contemplated by section 11 of the Suits Valuation Act it was further observed that the prejudice contemplated by the section is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined.
As per this authority the prejudice on the merits contemplated by section 11 must be directly attributable to over valuation or under valuation. It was held that an error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over-valuation or under-valuation. Mere errors in the conclusions on the points for determination cannot, therefore, be held to be prejudice within the meaning of that section.
In para 15 of the judgment some instances are given by Their Lordships as to in what matters the disposal of suit is affected on merits. The instances are that, if the proper hearing is not given to the parties or if regular case is tried by Small Causes Court because of the under-valuation which tries it in a summary manner, then in such events the disposal of the case can be said to be prejudiced on merits.
In the present case the disposal of suit is not at all affected or prejudiced because of the under-valuation and it is not, therefore, open for the appellant to raise the plea of under-valuation at this stage in the second appeal.
For all the above reasons the appeal deserves to be dismissed and the same is dismissed.