Judgment:
D. Raju, J.
1. Plaintiff in O.S. No. 788 of 1983 on the file of the Court of Additional District Munsif, Kancheepuram, has filed the above appeal against the order of remand passed by the learned Subordinate Judge, by setting aside the judgment and decree of the learned trial Judge and remanding the matter with a further direction to the learned trial Judge to forward the papers pertaining to the suit to the concerned and proper court having jurisdiction to try the same in accordance with law.
2. The suit O.S. No. 788 of 1983 was filed for a declaration that he is the special custodian of the suit (rust properties and for ensuring his right to be in possession and the physical possession of the properties. The plaintiff himself has given the valuation of the properties as Rs. 40,0Q0 in the plaint, but yet, has chosen to present the/suit before the District Munsif s Court, in view of the fact that it relates to merely a claim pertaining to a trust created over the properties. The defendants contested the claim both on merits as also on the maintainability of the suit before the trial court for want of pecuniary jurisdiction in the said court to entertain and try the suit.
3. The suit was tried and both parties adduced oral and documentary evidence. On a consideration of the oral and documentary evidence on record, the learned trial Judge overruled the objection regarding the want of pecuniary jurisdiction and on merits, the learned trial Judge chose to reject the claim of the plaintiff and dismiss the suit. Aggrieved, the plaintiff pursued the matter on appeal before the Sub Court in A.S. No. 40 of 1990. The learned first appellate Judge formulated two points for consideration in the appeal, namely, as to whether the trial court had pecuniary jurisdiction to entertain and try the suit and if so, to what relief is to be granted to the appellant in the appeal. On a finding recorded by the first appellate court that the value of the property was Rs. 40,000 the learned first appellate Judge held that the trial court had no jurisdiction to entertain the suit and try the same. Though nothing prevented the learned first appellate Judge himself to retain the suit by an appropriate direction or order while disposing of the appeal, he has adopted the procedure of remitting the matter with a consequential direction to the trial court to forward the papers to the court, which had the pecuniary jurisdiction to entertain and try the same. Aggrieved, the plaintiff has filed the above appeal.
4. Mr. Sampathkumar, learned Counsel appearing for the appellant, contended that when the very appellate Judge, has the original jurisdiction over the subject matter in question, there was hardly any justification for him to remit the matter to the file of the trial court and that the first appellate court ought to have decided the case on merits, instead of seeking for proper presentation and re-trial.
5. Mr. M.S. Subramanian, learned Counsel appearing for the respondents contended by placing reliance upon Section 21 particularly Sub-section (2) of Section 21, C.P.C., as inserted by the amendment in the year 1976 that in the absence of a specific finding on such objection with reference to pecuniary jurisdiction raised before the court below that there was a consequent failure of justice, there was no justification for the remand and on the other hand, it should have proceed to dispose of the appeal itself. The learned Counsel placed reliance upon the decision Pathumma v. Kuntalan Kutty : [1982]1SCR183 in respect of his plea.
6. I have carefully considered the submissions of the learned Counsel appearing on either side. The counsel appearing on either side in substance contend only for the disposal of the appeal as an appeal by the first appellate court itself without any order of remand, though their challenge to the order is by adopting different approaches and from different angles. Sub-section (2) of Section 21 reads as follows:
No objection as to the competence of a court with reference to the pecuniary limits 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.
The decision relied on by the learned Counsel for the respondents in Pathumma's case : [1982]1SCR183 was rendered in the context of unamended Section 21(1), C.P.C. The unamended provisions stipulated that no objection as to 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. Though the said provision dealt with a case of objection as to the place of suing, in the newly inserted Sub-section (2) of Section 21, C.P.C, also, apart from the lapse or delay, if any, in taking such an objection, the further requirement to sustain the said objection by the appellate or revisional court, is that there had been consequent failure of justice, as in the case of the claim in respect of the place of suing. The learned Judges of the Apex Court, though in the context of unamended provision, have categorically held with reference to the other requirement relating to place of suing in this behalf not only the appellate or revisional court dealing with such objection should come to the conclusion that the objection was tenable, but it was further necessary for the appellate or revisional court to hold that a case of failure of justice was also made out on account of such infirmity in the place of suing. In my view, the principles laid down by the Apex Court in respect of Section 21(1) as it stood prior to the amendment will squarely apply to the objection with reference to the matter of pecuniary jurisdiction also in view of the specific provision contained therein 'unless there has been a consequent failure of justice.'
7. In view of the above, it becomes necessary for this Court to consider, whether the first appellate court had averted to this aspect relating to the need for finding 'a consequent failure of Justice' due to the court lacking in pecuniary jurisdiction itself entertaining and trying the suit and disposing of the same. Apart from the fact that the learned first appellate Judge has omitted to advert to this vital and essential aspect of jurisdiction, which is stipulated as a mandate for justifying interference with the judgment of the trial court on the ground of it having entertained and tried the suit when it lacked pecuniary jurisdiction, it has straightaway ordered remand, which in my view, was wholly unwarranted. The parties, in spite of the objection raised to the pecuniary jurisdiction of the trial court went into the trial not only on the issue with reference to the said question relating to the challenge made to the jurisdiction but evidence was produced and entertained in respect of the merits of the claim as well. It is not the case of any of the parties that any of the materials sought to be produced was rejected or turned down on the question of want of pecuniary jurisdiction of the trial court. In view of the above, it has to be necessarily held that the parties on either side could not legitimately claim or substantiate any such claim that there had been any consequential failure of justice on account of the court lacking any pecuniary jurisdiction in trying the suit in this case. In view of the fact that the entire evidence was already on record, the first appellate court which had original jurisdiction which is co-extensive with, that if the trial court could have dealt with in the appeal itself all and everyone of the claims on merits and decided the claim once and for all finally. The first appellate court has also ample powers to even entertain additional evidence or call for a finding from the trial court if need be and in the teeth of such wide powers of the first appellate court, there was hardly, in my view, no justification to remit the proceedings to the trial court with the direction, as noticed earlier, driving the parties to the necessity of a fresh trial on merits.
8. In view of the above, the order of remand made by the learned first appellate Judge cannot be sustained and consequently, the same is set aside. The learned first appellate Judge is directed to restore A.S. No. 40 of 1990 to his file and dispose of the same on merits of the claim without going into the other question about the Munsif's Court having lacked pecuniary jurisdiction and uninfluenced by the earlier finding recorded in this regard by the first appellate court. The lower appellate court shall collect the court-fee due on the memorandum of appeal in the event of the refund, if any, actually having been made by it, pursuant to the order of remand, before proceeding further in the matter. There will be no order as to costs.