Tata Iron and Steel Company Ltd. Vs. Mohammad Sharif Alias Ashrafi - Court Judgment

Excerpt:
civil procedure code, 1908 - section 21(2) and order xiv, rule 1(5) and order xli, rule 23a - plea of pecuniary jurisdiction of court--not taken in w.s.--no issue, therefore, framed--such plea at appellate state--barred by section 21(2)--appellate court entertaining such plea and remanding case for framing preliminary issue on that plea--its decision being without jurisdiction, unsustainable in law. - - 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. narayan roy, j.1. heard mr. devi prasad, learned counsel appearing on behalf of the appellant. however, no one appears on behalf of the respondent.2. this miscellaneous appeal is directed against the judgment dated 5.6.1990 and decree dated 16.6.1990, passed by the 1st additional district judge, jamshedpur, in title appeal no. 3-a of 1988, whereby and whereunder the appellate court has set aside the judgment and decree dated 26.11.1987 passed by the learned munsif decreeing the suit and remitted back the suit to the trial court for giving a finding with regard to the issue of pecuniary jurisdiction of the court and to try the suit.3. it is submitted by mr. devi prasad, learned counsel appearing on behalf of the appellant that no issue on the question of pecuniary jurisdiction was framed in the suit before the learned trial court nor any objection was taken by the defendant-respondent for non-framing of the issue on the point of pecuniary jurisdiction and, therefore, the question of pecuniary jurisdiction could not have been raised at the appellate stage as the same was barred under sub-section (2) of section 21 of the code of civil procedure (hereinafter referred to as the code). learned counsel further submitted that the appellate court could not have remitted back the suit for retrial after framing an issue on the pecuniary question in exercise of its power under order xli rule 23-a of the code, in view of the provisions laid down under sub-section (2) of section 21 of the code. in support of his contention mr. devi prasad, learned counsel for the appellant, has pleaced reliance upon two decisions of this court in the case of siya saran singh v. smt. jamuna devi, reported in : air1987pat1 , and in the case of laxmi sahu v. ganeshi sahu, reported in air 1990 patna 2014. i have perused the impugned judgment of the learned appellate court. it appears that the question of pecuniary jurisdiction of the trial court was raised by the defendant-respondent before the appellate court and the appellate court, therefore, held that in view of the order xiv rule 1(5) of the code an issue could have been framed by the learned trial court on the question of pecuniary jurisdiction. the judgment and decree passed by the learned trial court has also been brought on record, marked as annexure-3. in the trial court no issue on the point of pecuniary jurisdiction was framed nor such objection was raised by the defendant at the time of framing of the issues. sub-section (2) of section 21 of the code contemplates as under: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.this is almost admitted, as it appears from the judgments of the trial court and also the appellate court, that at the time of framing of the issues no such objection was raised by the defendant for framing an issue on the question of pecuniary jurisdiction of the court. the plea for the first time has been taken at the appellate stage and the appellate court consequently thereof remitted back the matter to the learned trial court to frame an issue on the question of pecuniary jurisdiction and to try the suit afresh.5. in the case of siya saran singh (supra) a bench of this court noticing the provisions of section 21 of the code, has held that a party, who has not taken objection as the pecuniary jurisdiction of the court at the time specified therein, cannot be allowed to dispute that jurisdiction afterwards. admittedly in this case the defendant has raised the objection for the first time before the appellate court, which was specifically barred under sub-section (2) of section 21 of the code. similarly this court in the case of laxmi sahu (supra) has held that the question of pecuniary jurisdiction cannot be raised at the appellate stage when the question was not even put in issue at the trial stage.6. having heard learned counsel for the appellant and noticing the legal propositions aforementioned, it must be held that the judgment impugned passed by the appellate court is wholly without jurisdiction. the impugned judgment, therefore, is not sustainable in law.7. i, accordingly, allow this appeal and set aside the impugned judgment passed by the learned appellate court and remit back the appeal to the appellate court to rehear the appeal on its own merit and dispose of the same in accordance with law. no order as to cost.8. since it is a title appeal of 1988, the appellate court shall dispose of the same with atmost expedition.

Judgment:

Narayan Roy, J.

1. Heard Mr. Devi Prasad, learned Counsel appearing on behalf of the appellant. However, no one appears on behalf of the respondent.

2. This miscellaneous appeal is directed against the judgment dated 5.6.1990 and decree dated 16.6.1990, passed by the 1st Additional District Judge, Jamshedpur, in Title Appeal No. 3-A of 1988, whereby and whereunder the appellate Court has set aside the judgment and decree dated 26.11.1987 passed by the learned Munsif decreeing the suit and remitted back the suit to the trial Court for giving a finding with regard to the issue of pecuniary jurisdiction of the Court and to try the suit.

3. It is submitted by Mr. Devi Prasad, learned Counsel appearing on behalf of the appellant that no issue on the question of pecuniary jurisdiction was framed in the suit before the learned trial Court nor any objection was taken by the defendant-respondent for non-framing of the issue on the point of pecuniary jurisdiction and, therefore, the question of pecuniary jurisdiction could not have been raised at the appellate stage as the same was barred under Sub-section (2) of Section 21 of the Code of Civil Procedure (hereinafter referred to as the Code). Learned Counsel further submitted that the appellate Court could not have remitted back the suit for retrial after framing an issue on the pecuniary question in exercise of its power under Order XLI Rule 23-A of the Code, in view of the provisions laid down under Sub-section (2) of Section 21 of the Code. In support of his contention Mr. Devi Prasad, learned Counsel for the appellant, has pleaced reliance upon two decisions of this Court in the case of Siya Saran Singh v. Smt. Jamuna Devi, reported in : AIR1987Pat1 , and in the case of Laxmi Sahu v. Ganeshi Sahu, reported in AIR 1990 Patna 201

4. I have perused the impugned judgment of the learned appellate Court. It appears that the question of pecuniary jurisdiction of the trial Court was raised by the defendant-respondent before the appellate Court and the appellate Court, therefore, held that in view of the Order XIV Rule 1(5) of the Code an issue could have been framed by the learned trial Court on the question of pecuniary jurisdiction. The judgment and decree passed by the learned trial Court has also been brought on record, marked as Annexure-3. In the trial Court no issue on the point of pecuniary jurisdiction was framed nor such objection was raised by the defendant at the time of framing of the issues. Sub-section (2) of Section 21 of the Code contemplates as under:

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.

This is almost admitted, as it appears from the judgments of the trial Court and also the appellate Court, that at the time of framing of the issues no such objection was raised by the defendant for framing an issue on the question of pecuniary jurisdiction of the Court. The plea for the first time has been taken at the appellate stage and the appellate Court consequently thereof remitted back the matter to the learned trial Court to frame an issue on the question of pecuniary jurisdiction and to try the suit afresh.

5. In the case of Siya Saran Singh (supra) a Bench of this Court noticing the provisions of Section 21 of the Code, has held that a party, who has not taken objection as the pecuniary jurisdiction of the Court at the time specified therein, cannot be allowed to dispute that jurisdiction afterwards. Admittedly in this case the defendant has raised the objection for the first time before the appellate Court, which was specifically barred under Sub-section (2) of Section 21 of the Code. Similarly this Court in the case of Laxmi Sahu (supra) has held that the question of pecuniary jurisdiction cannot be raised at the appellate stage when the question was not even put in issue at the trial stage.

6. Having heard learned Counsel for the appellant and noticing the legal propositions aforementioned, it must be held that the judgment impugned passed by the appellate Court is wholly without jurisdiction. The impugned judgment, therefore, is not sustainable in law.

7. I, accordingly, allow this appeal and set aside the impugned judgment passed by the learned appellate Court and remit back the appeal to the appellate Court to rehear the appeal on its own merit and dispose of the same in accordance with law. No order as to cost.

8. Since it is a title appeal of 1988, the appellate Court shall dispose of the same with atmost expedition.