Smt. Lachawwa Alias Laxmavva Vs. Pandappa Hanamappa Shiragavi and Another - Court Judgment

Excerpt:
- section 11-a & central excise rules, 1944, rule 173-g: [d.v. shylendra kumar, j] black boards - authorities classified black boards manufactured by petitioners are dutiable under entry 4408.90, chapter 44 of the schedule to central excise tariff act, 1985 confirmed by tribunal - by virtue of section 11-aa authorities called upon assessee to pay interest amount along with outstanding duty held, in the present situation and in the prevailing state of affairs, petitioner is not entitled to agitate the question as it fact it has already been answered against the petitioner/assessee in the earlier proceedings. the levy of interest under section 11-aa happens to be a consequential proceeding i.e., consequential to the order passed under section 11-a. therefore, if the section 11-a order whether right or otherwise had between the parties attained finality and had been affirmed by this court, it is no more open to the petitioner to contend that the order under section 11-a was bad in law and therefore the further invocation of the provisions of section 11-aa is also equally bad in law. order1. it is indeed an unfortunate case wherein the trial court at the end of the trial raised a question of jurisdiction that too the pecuniary jurisdiction, even without the defendant raising the same. holding that it has no pecuniary jurisdiction, court directed the plaintiff to re-present the plaint before court of the competent jurisdiction and dismissed the suit as a whole.2. i shall just repeat my observations in a case reported in narasimha reddy v narasimha reddy and others , at page 103:'it is indeed a very sorry state of affairs that the trial court in a suit for partition has framed as many as 10 main issues and two additional issues and has chosen to hold that issues 1 to 9 does not survive and issue 2 is not answered at all. he has taken into consideration only the issue regarding the suit as if barred by res judicata and whether the suit is barred under order 2, rule 2, civil procedure code'.the above decision is applicable to the way the present case is disposed of. reliance was also placed upon by the learned counsel sri desai in the ruling in a case of salil kumar roy v smt, badu devi bhansali and others, at para 27 which reads as follows:'although in the written statement it was urged that this court has no jurisdiction to receive, try and to determine this suit and although at one stage of the suit, the original defendant succeeded and the plaint was directed to be returned to the plaintiff and though the said order was set aside by the supreme court with an observation that the question regarding the jurisdiction of the high court will be open to be decided by the learned single judge before whom the suit is pending, but the issue relating to jurisdiction was not urged to be decided as a preliminary issue. on the contrary this was suggested as one of the issues along with other issues on the merit. if after the entire suit is heard and decided on merit it appears to the court that the court has no pecuniary jurisdiction as is being suggested here, would it be proper to return the plaint and thereby put the parties in greater difficulties? issues of the nature should be decided as a preliminary issue. if the party raising such issue does not insist that the same should be decided as a preliminary issue, he should not be permitted to urge that issue after the trial is over on merits'.in this civil revision petition, dismissal of the suit by the trial court is challenged. notice was ordered to the respondent, he was served and remained unrepresented.3. heard mr. desai. it appears to me that, disposal of the suit appears to have ignored not only the legal proposition on the point but also the settled principles. the suit is one for declaration and injunction. section 24(a) of the karnataka court fees and suits valuation act reads as follows:--'24. suits for declaration.--(a) where the prayer if for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on rupees (one thousand) whichever is higher.market value is defined under section 7. clause 2 and 2(a) of section 7 reads as follows:section 7. determination of market value.--clause (2):--the market value of land in suits falling under section 24(1), 24(b), 26(a), 27, 28, 29, 31, 35(1), 35(2), 35(3), 36, 38, 39 or 45 shall be deemed to be:--(a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to government, or forms part of such an estate and is recorded in the deputy commissioner's register as separately assessed with such revenue and such revenue is permanently settled twenty-five times the revenue so payable.it is the case of the plaintiff that the suit claim comes squarely within the meaning of section 7(2)(a) of the karnataka court fees and suits valuation act which is acceptable by the trial court at the time when the plaint was admitted. the defendant did not raise a question of court fee in the written statement. but suddenly when the case was on part heard stage and after the arguments were offered, filed i.a. no. x to decide the jurisdiction issue, which reads as follows:application under order 14, rule 2(2) read with section 151, civil procedure code.for the reasons stated in the accompanying affidavit of the defendant 1, the hon'ble court be pleased to give finding first on jurisdiction issue that after hearing the arguments on jurisdiction point in order to save the time of this hon'ble court and in the case if court comes to the conclusion that this court has pecuniary jurisdiction to entertain and decide the suit, under such circumstances, this hon'ble court be pleased to direct the parties to submit the arguments on all other issues, in the interest of justice'.the basic law is that, once both the parties have submitted themselves to the jurisdiction of the court in the beginning by allowing the court to try the suit, it is not open to the one of the parties to go out of such stand and then question the very jurisdiction. prima facie on satisfaction that the court has jurisdiction the suit was proceeded with. suddenly the learned judge appeared to have discovered and have considered it erroneously. the result is causing great hardship and loss to the plaintiff who has been tapping the door of the court for relief from 1995 onwards.4. in this view, without expressing any opinion on the merits, i set aside the order passed by the court holding that the suit falls within the pecuniary jurisdiction of the court and directing the court to dispose of the matter within a period of two months after receipt of the records from this court on merits. civil revision petition allowed.

Judgment:
ORDER

1. It is indeed an unfortunate case wherein the Trial Court at the end of the trial raised a question of jurisdiction that too the pecuniary jurisdiction, even without the defendant raising the same. Holding that it has no pecuniary jurisdiction, Court directed the plaintiff to re-present the plaint before Court of the competent jurisdiction and dismissed the suit as a whole.

2. I shall just repeat my observations in a case reported in Narasimha Reddy v Narasimha Reddy and Others , at page 103:

'It is indeed a very sorry state of affairs that the Trial Court in a suit for partition has framed as many as 10 main issues and two additional issues and has chosen to hold that Issues 1 to 9 does not survive and Issue 2 is not answered at all. He has taken into consideration only the issue regarding the suit as if barred by res judicata and whether the suit is barred under Order 2, Rule 2, Civil Procedure Code'.

The above decision is applicable to the way the present case is disposed of. Reliance was also placed upon by the learned Counsel Sri Desai in the ruling in a case of Salil Kumar Roy v Smt, Badu Devi Bhansali and Others, at para 27 which reads as follows:

'Although in the written statement it was urged that this Court has no jurisdiction to receive, try and to determine this suit and although at one stage of the suit, the original defendant succeeded and the plaint was directed to be returned to the plaintiff and though the said order was set aside by the Supreme Court with an observation that the question regarding the jurisdiction of the High Court will be open to be decided by the learned Single Judge before whom the suit is pending, but the issue relating to jurisdiction was not urged to be decided as a preliminary issue. On the contrary this was suggested as one of the issues along with other issues on the merit. If after the entire suit is heard and decided on merit it appears to the Court that the Court has no pecuniary jurisdiction as is being suggested here, would it be proper to return the plaint and thereby put the parties in greater difficulties? Issues of the nature should be decided as a preliminary issue. If the party raising such issue does not insist that the same should be decided as a preliminary issue, he should not be permitted to urge that issue after the trial is over on merits'.

In this civil revision petition, dismissal of the suit by the Trial Court is challenged. Notice was ordered to the respondent, he was served and remained unrepresented.

3. Heard Mr. Desai. It appears to me that, disposal of the suit appears to have ignored not only the legal proposition on the point but also the settled principles. The suit is one for declaration and injunction. Section 24(a) of the Karnataka Court Fees and Suits Valuation Act reads as follows:--

'24. Suits for declaration.--(a) Where the prayer if for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on rupees (one thousand) whichever is higher.

Market value is defined under Section 7. Clause 2 and 2(a) of Section 7 reads as follows:

Section 7. Determination of market value.--

Clause (2):--The market value of land in suits falling under Section 24(1), 24(b), 26(a), 27, 28, 29, 31, 35(1), 35(2), 35(3), 36, 38, 39 or 45 shall be deemed to be:--(a) Where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Deputy Commissioner's register as separately assessed with such revenue and such revenue is permanently settled twenty-five times the revenue so payable.

It is the case of the plaintiff that the suit claim comes squarely within the meaning of Section 7(2)(a) of the Karnataka Court Fees and Suits Valuation Act which is acceptable by the Trial Court at the time when the plaint was admitted. The defendant did not raise a question of Court fee in the written statement. But suddenly when the case was on part heard stage and after the arguments were offered, filed I.A. No. X to decide the jurisdiction issue, which reads as follows:

Application under Order 14, Rule 2(2) read with Section 151, Civil Procedure Code.

For the reasons stated in the accompanying affidavit of the defendant 1, the Hon'ble Court be pleased to give finding first on jurisdiction issue that after hearing the arguments on jurisdiction point in order to save the time of this Hon'ble Court and in the case if Court comes to the conclusion that this Court has pecuniary jurisdiction to entertain and decide the suit, under such circumstances, this Hon'ble Court be pleased to direct the parties to submit the arguments on all other issues, in the interest of justice'.

The basic law is that, once both the parties have submitted themselves to the jurisdiction of the Court in the beginning by allowing the Court to try the suit, it is not open to the one of the parties to go out of such stand and then question the very jurisdiction. Prima facie on satisfaction that the Court has jurisdiction the suit was proceeded with. Suddenly the learned Judge appeared to have discovered and have considered it erroneously. The result is causing great hardship and loss to the plaintiff who has been tapping the door of the Court for relief from 1995 onwards.

4. In this view, without expressing any opinion on the merits, I set aside the order passed by the Court holding that the suit falls within the pecuniary jurisdiction of the Court and directing the Court to dispose of the matter within a period of two months after receipt of the records from this Court on merits. Civil revision petition allowed.