Ramjibhai Lalbhai Patel Vs. Shantaben - Court Judgment

1. The appellant. Ramjibhai Lalbhai Patel of Talod Taluka Prantij. District Sabarkantha. is the husband of the respondent Smt. Shantaben. daughter of Manilal Kashkanbhai Patel; The appellant had filed H. M. P. No. 18/ 79 in the Court of the Civil judge (S-D). Ahmedabad (Rural) at Nerol under: Sec 13(1)(b) of the Hindu Marriage Act 1955 as amended by Act No. 68 of 1976. to obtain a decree of divorce of his marriage with the respondent on the ground that she had deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition. The perusal of the Rajnama discloses that on 19-9-1980 the record and proceedings were transferred from the Court of the Civil Judge (S. D.). Narol to the Extra Assistant Judge Narol under the orders of the District Judge. The matter was there after conducted and decided by the Extra Assistant Judge. Narol who by his judgment and order dated 17-8-1981 dismissed the petition with costs. Hence, the appellant has preferred this appeal.)

(Paras 2 to 8 * * * * * *)

9. When I started delivering the judgment Mr, R. N. Shah interrupted to submit that he wanted to raise a question about the jurisdiction of this Court to entertain and hear this appeal. He submitted that in the circumstances of the present case appeal from the judgment of the Extra Assistant Judge Narol will not lie in the High Court but that it would lie in the District Court to which appeals ordinarily lie from the decision of the Extra Assistant Judge in the exercise of its original civil jurisdiction. Although the issue was raised belatedly, I heard both the learned Advocates on the issue as it was a jurisdictional issue.

10. A similar issue was raised in First Appeal No. 1158/81 which I decided on 2-4-1984: (reported in AIR 1984 NOC 258 (Guj)). It was also a matrimonial matter and divorce was sought on the ground of legal cruelty and desertion for a continuous period exceeding two Years immediately preceding the presentation of the Petition. It was also a petition which was decided by the Extra Assistant Judge Narol. Mr. G. D. Bhatt. Advocate .appeared for the respondent in ,that matter and he raised a preliminary issue about the jurisdiction of this Court to entertain and hear the appeal from the judgment and order of the Extra Assistant judge. The contention was that an appeal would lie to the District Judge at Narol and not to the High Court It was also submitted that the appeal before the High Court was not competent. It was submitted in that appeal that in paragraph 17 of the original application it was stated that for the purpose of court-fees, advocate-fees and jurisdiction the valuation was made at Rs. 5/- and a fixed court-fees stamp of Rs. 37-50 was utilised for the purpose of court-fees. My attention was invited to Sees. 16. 24. 25 and 26 of the Bombay Civil CourtsAct. 1869. Section 16 reads as under:-

'16. original Jurisdiction of Assistant Judge. - The District Judge may refer to anv Assistant Judge subordinate to him original suits of which the subject-matter (is of any) amount or value, (applications or references under Special Acts) and miscellaneous applications.

The Assistant Judge shall have jurisdiction to try such suits and to dispose of such applications (or references).

Where the Assistant Judge's decrees and orders in such cases are appealable, the appeal shall lie to the District Judge or to the High Court according as the amount or value of the subject-matter does not exceed or exceeds twenty thousand rupees.'

11. Section 24 of the said Act refers to jurisdiction of the Civil Judge (Senior Division and jurisdiction of Civil Judge (Junior Division). It is prescribed that the jurisdiction of a Civil Judge (Senior Division) extends to all original suits and proceedings of a civil nature and the jurisdiction of a Civil judge (Junior Division) extends to all original suits and proceedings of a civil nature where in the subject-matter does not exceed in amount or value twenty thousand rupees. Section 25 refers to the jurisdiction of Civil Judge (Senior division), and states that a Civil Judge (Senior Division) in addition, to his ordinary jurisdiction shall exercise a special jurisdiction in respect of such suits and proceedings of a civil nature as may arise within the local jurisdiction of the Courts in the district presided over by Civil Judges (Junior Division) and wherein the subject-matter exceeds the pecuniary jurisdiction of the Civil judge (Junior Division) as defined by Section 24. Section 26 of the said Act refers to appeal from the decision of a Senior Division Judge of which the amount or value of the subject-matter exceeds twenty thousand rupees the appeal from his decision shall lie direct to the High Court.

12. So far as the appeals from the orders and decrees of the Assistant Judge is concerned. I have ascertained that under Section 16 it is prescribed that the appeal shall lie to the District Judge or to the High Court according as the amount or value of the subject-matter does not exceed or exceeds twenty thousand rupees. The appellate provisions with regard to the appeals from orders and decrees of the Civil Judge (S. D.) and from the decrees and orders of the Assistant Judge are in pari materia.

13. My attention was then drawn to Sections 8 and 9 of the Suits Valuation Act. 1887. Section 8 relates to those cases wherein court-fee value and jurisdiction value are to be the same. Section 9 is relevant for our purpose. Sec tion 9 runs as under:-

'9. When the subject-matter of suits of any class other than suits mentioned in the Court-fees Act 1870. Section 7, paragraphs v and vi and paragraph x, clause (d) is such that in the opinion of the High Court it does not admit of being satisfactorilv valued. the High Court may with the previous sanction of the State Government. direct that suits of that class shall for the purposes of the Court-fees Act. 1870 and of this Act and any other enactment for the time being in force be treated as if their subject-matter. were of such value as the High Court thinks fit to specify in this behalf.'

Reading Section 9. it becomes clear that the Plaintiff or the applicant as the case may be is entitled to put his own valuation for the purpose of determining the jurisdiction under Section 9 of the Suits valuation Act. 1887. In the above stated appeal that was precisely what the applicant had done at paragraph 17 of his application. He had valued the suit for the purpose of jurisdiction at 5/-. Under Section 16 of the Bombay Civil Courts Act. 1869. referred to above, the appeal from the decision of the Assistant Judge would lie to the District Judge and not the High Court as the amount or value of the subject-matter as fixed by the appellant in his application does not exceed Rs. 20,000/-. Under Section 3(b) of the Hindu Marriage Act, 1955. 'District Court' is defined as under :-

'3. (b) 'district court' means in any area for which there is a city civil court that court and in any other area the principal civil court of original jurisdiction and includes any other civil court which may be specified by the State Government by notification in the official Gazette, as having jurisdiction in respect of the matters dealt with in this Act:'

It is true that so far as the provisions of the Hindu Marriage Act and the proceedings thereunder are concerned, an Assistant Judge would indeed be a District Judge under Section 3(b) of the Hindu Marriage Act but he would not be a District Judge for the purpose Of determining the forum of appeal as that question does not fall within the ambit of the Hindu Marriage Act. 1955. Section 28 of the Hindu Marriage Act is very clear on this point. Section 28 runs as under :-

'28. Appeals from decrees and orders.(1) All decrees made by the court in any proceeding under this Act shall subject to the provisions of sub-section (3). be appealable as decrees of the Court made in the exercise of its original civil jurisdiction. and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.

(2) Orders made by the Court in any proceeding under this Act under See. 25 or Section 26 shall. subject to the Provisions of sub-section (3). be appealable if they are not interim orders. and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.' Under Section 28(1). the appeal lies to the Court to which appeals ordinarily lie from the decision of the Court given in the exercise Of its original civil jurisdiction. The forum of appeal is prescribed under Section 16 of the Bombay Civil Courts Act and therefore for determining the forum of appeal we must make a reference to Section 28 of the Hindu Marriage Act. 1955 read with Section 16 of the Bombay Civil Courts Act. 1869 and that the forum would not be determined by the definition of 'district Court' under Section 3(b) of the Hindu Marriage Act, 1955.

14. The above-stated Proposition finds support from the decision of the Bombay High Court in the case of Gangadhar Rakhamaji v. Manjulal Gangadhar, AIR 1960 Bom 42 wherein this question has been considered fully. The decision of the Division Bench in Appeal No. 234/ 58 was decided on 29-10-1958 and therefore the ratio of the above judgment is binding on me. In Gangadhar's case (supra). the Division Bench considered the submission placed before it that the Court of the Civil Judge (S. D.) was a District Court under the definition of the 'district Court' as given in Section 3(b) of the Hindu Marriage Act, 1955 and that the appeal would lie directly to the High Court. but that submission was negatived by the Division Bench.

15. In First Appeal No. 11581/81 upheld the preliminary objection raised by Mr. G. D. Bhatt and I decided that the appeal which was filed in this Court was not maintainable. Accordingly the direction was given that the appeal memo and the papers filed with it be returned to the appellant for presentation to the proper Court and the memo of the cross-objections be returned to the respondent.

16. Mr. R. N. Shah submitted that my decision in First Appeal No. 1158 of 1981 applied to the present appeal also. He submitted that the appeal could have been Preferred only to the District Court at Narol and that appeal in the High Court was not competent.

17. Mr. R. N. Shah referred me to several judgments besides my own in First Appeal No. 1158/81 to elaborate the point. He referred me to Gangadhar Rakhamaji's case (AIR 1960 Bom 42 (supra). The head-notes therein run as under :_

'Where in a Petition under the Hindu Marriage Act a decree is Passed by the Court of the Civil Judge, Senior Division of Ahmednagar which Court was notified by the State Govt. as having jurisdiction in respect of matters dealt with in the Act the appeal lies to the District Court of Ahmednagar and not to the High Court.

The Court of the Civil judge. Senior Division which is notified by the State Government as having jurisdiction in matters dealt with under the Hindu Marriage Act is a 'district Court' within the definition of Section 3(b) of the Hindu Marriage Act but it is not principal Civil Court of original jurisdiction nor does it exercise its jurisdiction as such principal Civil Court of original jurisdiction. Section 28 of the Hindu Marriage Act leaves the forum of appeal to be determined under the law for the time being in force, which in the present case is the Bombay Civil Courts Act. The forum of appeal from the order or decree of the Court of the Civil Judge, Senior Division under the Bombay Civil Courts Act is the Court of the District Judge of the District. In the present case therefore, which was decided by Civil Judge. Senior Division appeal lies to the Judge and not to the High Court.'

18. Mr. Shah then referred me to another Division Bench ruling of the Bombay High Court in the case of Ambi Pundalik v. Pundalik Shankar. AIR 1960 Bom 521. It is observed that when there is no notification under S. 3(b), Hindu Marriage Act specifying any other Civil Court as a District Court for the purpose of that Act and the petition for restitution of conjugal rights under the Act is decided by the Additional District Judge who is part and parcel of the District Court then under clause (c) of S. 20 C. P. and Berar Courts Act the appeal from such a decision will lie to the High Court and not to the District Court. It is to be noted that in that case the decision was by the Additional District Judge who is considered as part and parcel of the District Court. It was further observed therein that Section 20 (b) (i) and (ii) of C. P. and Berar Courts Act read with R. 311 framed under S. 9 of the Suits Valuation Act will not apply to such a case because while those provisions speak of suits the proceeding under the Hindu Marriage Act is not a suit. It was also observed that a special Court having been created as the Court having exclusive jurisdiction under Hindu Marriage Act it is not necessary to put a pecuniary valuation on the relief clamed under that Act and the Proceedings do not fall under Section 20. C. P. and Berar Courts Act. It is clear that I am not required to go into the discussion of this reported case since the original decision was by the Additional District Judge which was considered as part and parcel of the District Court whereas in the present case the original decision is by the Extra Assistant Judge. I may in passing note that the conclusion reached by the Division Bench that the provisions of the Suits Valuation Act will not apply to such matters because the matter was initiated by an application and not a suit and that a Special Court was created as the Court having exclusive jurisdiction under the Hindu Marriage Act is not followed by other Courts as per example the Full Bench decision reported in : AIR1961All395 and the Division Bench decision of the Orissa High Court reported in : AIR1978Ori163 . A similar view was also taken in the case of Mallappa v. Mallava,

AIR 1960 Mys 292. It was observed therein as under (at p. 293):-

'Though the Court of the Civil Judge, Senior Division, which is notified by the State Government as having jurisdiction in matters dealt with under the Hindu Marriage Act, is a District Court within the definition of Sec. 3(b) of the Hindu Marriage Act. it is not principal Civil Court of original jurisdiction nor does it exercise its jurisdiction as such principal Civil Court of original jurisdiction. Where therefore. a Civil Judge. Senior Division dismisses a petition under Section 12 of the Act. under Section 28. the forum of appeal has to be determined under 'the law for the time being in force, which in the present case is the Bombay Civil Courts Act and under Section 8 of the Bombay Act an appeal from the order of that Court lies to the District Judge of the District and not to the High Court.'

The Division Bench followed the principle laid down by the judgment of the Division Bench of the Bombay High Court in Gangadhar's case (AIR 1960 Bom 42) (supra):--

19. A subsequent decision of a single Judge in the case of Dhulappa Shivaraj Molke v. Krishnabai. AIR 1962 Mys 172. has followed the judgment of the Division Bench in Mallappa's case (AIR 1960 Mys 292) (supra).

20. Similar is the effect also of a decision of a single Judge in the case of B. Balaji Singh v. B. Raj Kumari. : AIR1972Mad278 . Maharajan. J. observed therein as under.-

'If the Petition under Section 25 or 26 of Hindu Marriage Act is disposed of either by the principal Judge of the City Civil Court- or by the Additional Judge thereof an appeal would lie straightway to the High Court if on the other hand, it is, disposed of by an Assistant Judge of the City Civil Court an appeal shall lie only to the Principal Judge especially in a proceeding where the amount or value of the subject-matter does not exceed

Rs. 5.000/-.'

21. A Division Bench of the Orissa High Court considered the question fully in the case of Nrusingh Charan Nayak v. Smt. Hemant Kumari Nayak. AIR 1978 Orissa. 163. The observations are pertinent. The Division Bench observed as under:-

'Courts other than the principal Civil Court of original jurisdiction which by notification made under Section 3(b) of the Act are conferred with jurisdiction to entertain proceedings under the Act are not 'District Court proper' and irrespective of valuation an appeal would not lie against decrees of such Courts to the High Court. The appellate forum has to be determined in accordance, with the provisions of the local Civil Courts statute in the instant case the Bengal, Agra and Assam Civil Courts Act. Therefore an appeal, valued at Rs. 100/- against the decision in a suit for restitution of conjugal rights would lie in the Court of District Judge. The first appeal in the High Court would not be maintainable.'

Thus the Division Bench therein has taken a view on the question of valuation for the jurisdictional, purpose different from the view taken by the Division Bench in Ambi Pundelik's case (AIR 1960 Bom 521) (supra). The Division Bench in Nrusingh Charan's case (supra) held as under:-

'(1) Courts other than the Principal Civil Court of original jurisdiction which by notification made under Section 3(b) of the Hindu Marriage Act are conferred with jurisdiction to entertain proceedings under the Act are not 'District Court proper' and irrespective of valuation an appeal would not lie against, decrees of such courts to the High Court.

(2) The appellate forum has to be determined in accordance with the provisions of the Bengal, Agra and Assam Civil. Courts Act. Where the dispute is valued up to Rs. 5000/-, the appeal would lie to the District Judge when the impugned decree is of a Court other than the Principal Civil Court of original Jurisdiction. In a case where the valuation is above Rs. 5,000/- and the decree is by a Court other than the Principal Civil Court of original jurisdiction the appeal would lie to the High Court and

(3) Where no valuation has been put in the proceeding and there is no material to indicate that the appeal is valued at more than Rs. 5,000/- the appeal would also lie to the District Court and not to the High Court because under the provisions of the Bengal, Agra and Assam Civil Courts Act only on a stated valuation. first appeals lie to the High Court.'

22. Thus the view taken by me in First Appeal No. 1158/81 stands supported by the judgments of the other High Courts as well.

23. However, there is a pertinent point of distinction between the facts of First Appeal No. 1158/81 and the facts of the present case. In First Appeal No. 1158/81. the applicant had valued the application for the purpose of jurisdiction at Rs. 5/- and a fixed court-fees of Rs. 37-50 was utilized for the purpose of court-fees whereas in the present case the applicant has stated at paragraph 16 of the application that 'the court-fees stamp of Rs. 37.50 is affixed on this petition and Vakalatnama and copy of the petition are filed herewith.' Thus the applicant has not put his own valuation on this application for the purpose of Jurisdiction. A view was sought to be canvassed before me that in such a case the appeal would lie to the High Court and not to the District Court. A reference was made to a Full Bench judgment of the Allahabad High Court in the case of Paras Ram v. Janki Bai : AIR1961All395 . Delivering the decision of the, Full. Bench Desai. Acting C. J. Observed at page 396 as under:-

'A proceeding under See. 10 of the Hindu Marriage Act is to. be treated as an, original. suit. Consequently an appeal from an order of a civil judge Passed in such a proceeding lies to the District Judge if a certain condition is fulfilled and to the High Court if it is not. The residuary power is thus vested in the High Court and an appeal lies to the District Judge only if the condition if, fulfilled. The value placed on the memorandum of appeal is of no consequence .Every plaint must bear the value of the object matter of the suit for the purposes of jurisdiction and of court-fees.

When See. 8 does not apply. See. 9 applies and the value of the subjct matter of the suit is to be fixed in accordance with the Rules made by the High Court. No rules made by this court in, exercise of the Power conferred by Section 9 -have been brought to our notice. Consequenty there is no law directing how the value of the subject matter of a petition under See. 10 for the Purpose of jurisdiction is to be fixed. The appellant, though by See. 21 of the Act read with 0. 7. R. 1 (i) Civil P. C. to state the value of the subject matter. did not state it. Presumably because be did not know how it was to be fixed.'

24. This judgment runs counter to the view taken by the Division Bench of this Court consisting of P. N. Bhagwati C. J. (as be then was) and D. A. Desai. J. (as he then was) in the case of Chhagin Karsan v. Bhagwanji Punjab reported in : AIR1973Guj165 . It is, necessary for me to discuss this judgment at length because I am required to follow the view taken of this question in it.

25. The appellant (the original plaintiff) filed Civil Suit No. 168/68 in the Court of the Civil Judge (C. D.) Jamnagar claiming permanent injunction res-training the respondents from obstructing the appellant in the exercise of his right of way of his fields bearing Survey Nos. 719 and 732 through the Sbedba, that is the boundary line of the field's of the respondent. Since the field of the respondents over which the right of way was claimed by the appellant was situate in the sir (sic) of Jamnagar. but outside its municipal limits, the suit fell within Clause (c) of See. 6(iv)(c). of the Bombay Court-fees Act. , 1959 and a fixed court-fee of Rs. 15/- was accordingly paid by the appellant On the plaint. The Civil Judge (Senior Division). Jamnagar referred the suit for disposal to the second Joint Civil Judge (Junior Division). Jamnagar and after the suit was transferred to him, written statements were filed on behalf of the respondents in answer to the suit. Though several contentions were taken in the written statement. none of them challenged the jurisdiction of the Second Joint Civil Judge (Junior Division). Jamnagar to try and dispose of the suit. The Second Joint Civil Judge (Junior Division). Jamnagar heard the suit on merits and taking the view that on the evidence. the appellant had failed to establish the right of wav claimed by him dismissed the suit. The appellant there upon preferred Civil Appeal No. 18 of 1969 in the District Court. Jamnagar against the decision of the Second Joint Civil Judge (Junior Division). Jamnagar. In the appeal also no contention was raised on behalf of any of the Parties that the Second Joint Civil Judge (Junior Division) Jamnagar, had no jurisdiction to try and dispose of the suit and the decree passed by him was. therefore a nullity and must be set aside. The appeal was heard by the District Judge on merits and after considering the evidence on record. the District Judge came to the conclusion that the right of way claimed by the appellant was not etablished and he accordingly dismissed the appeal. This led to the filing of the Second Appeal in this Court. When the Second appeal came up for hearing before M. U. Shah. J. a new contention was sought to be advanced on behalf of The appellant that -the subiect'- matter of the suit was not -susceptible of monetary evaluation and therefore it could not be predicated that the suit was one wherein the subject matter did not exceed in amount or value Rs. 10,000/-and consequently the Second Joint Civil judge (junior Division). Jamnagar had no jurisdiction to try and dispose of the suit. The suit could be, tried and disposed of only by the Civil Judge (Senior Division), Jamnagar. This contention was supported by a decision given by S. H. Sheth. J. sitting as a single Judge in Khimji Jiva v. Narendrakumar (1972) 13 Gui LR 23: (AIR 1972 Cuj 280) M. U. Shah. J. framed two questions and referred them for decision to a Division Bench. Those questions were

'(1) Whether the Civil Judge, Junior Division has power to deal with and decide the suit. wherein the subject matter is incapable of monetary evaluation having regard to the provisions contained in See. 24 of the Bombay Civil Courts Act. - 1869 (Act No. XIV of 1869)

(2) If the objection as to jurisdiction of the Civil Judge junior Division. under Section 24 of the Bombay Civil Courts Act 1869 is not taken at an earlier stage in the Court below then whether a plea of want of jurisdiction can be allowed to be raised for the first time in appeal?' The Division Bench. speaking through Bhagwati C. J., has observed that having regard to the provisions of the Bombay Civil Courts Act. so far as valuation for the Purpose of jurisdiction is concerned, there is no such thing as subject matter being incapab7e of monetary evaluation. as in every case whatever be the nature of the suit the subject matter has to be valued in terms of money for the purpose of jurisdiction. A short reference was made to the scheme of the Bombay Civil Court's Act and in the light of the provisions of that Act it was observed that if the subject matter of the suit or proceedings does not exceed in amount or value 10,000/- rupees the Civil judge, Junior Division, would have jurisdiction to try and dispose of the suit or Proceedings and on the other hand if the subJect-matter (of the suits) or proceeding is exceeds in amount or value Rs. 10.000/-, the Civil Judge (junior Division) would have no jurisdiction and the suit or proceedings would be triable only by the Civil Judge (Senior Division). The difficulty would arise where the subject matter of the suit or Proceedings is not capable of monetary evaluation. An argument was advanced before the Division Bench that the second paragraph of Section 24 confers jurisdiction on a Civil Judge (Senior Division) to try and dispose of all original suits and proceedings of a civil nature without any limit or restriction and. therefore. every suit or proceeding of a Civil nature would be within the jurisdiction of a Civil Judge (Senior Division) irrespective of whether the value of its subject-matter exceeds or does not exceed ten thousand rupees. It was further argued that where the subject matter of the suit or proceedings is not capable of monetary evaluation. it cannot be Predicated that the subject-matter of the suit or proceedings does not exceed in amount or value Rs. 10.000/and in that event the condition defining the jurisdiction of the Civil Judqe (Junior Division) would not be satisfied and the suit or proceeding would be outside the jurisdiction of the Civil judge (Junior Division),. It was further contended that a suit or proceeding in which the subject matter is not susceptible of monetary evaluation would not fall within the jurisdiction of the Civil Judge (junior Division) under the third paragraph of Section 24 and would consequently be triable only by the Civil Judge (Senior Division) who exercises full and unrestricted jurisdiction to try and dispose of all suits and proceedings of a civil nature by virtue of the second paragraph of Section 24. The Division Bench negatived this argument after referring to the relevant Provisions of the Bombav Civil Courts Act. particularly Sees. 22A to 25. The Division Bench observed as under --

'The combined effect of Secs. 24 and 25. therefore. is that the second Paragraph of See. 24 confers ordinarv jurisdiction and Section 25 confers special Jurisdiction on a Civil judge (Senior Division). The ordinary jurisdiction extends to all original suits and proceedings of a civil nature. arising within the local limits of his ordinary jurisdiction fixed bv the State Government under See. 22A. It makes no difference for the purpose of ,his ordinarv jurisdiction whether the subject matter of the suit or proceedings exceeds or does not exceed in amount or value ten thousand rupees- The special jurisdiction extends to such suits and Proceedings of a civil nature as may arise within the local jurisdiction of the Courts in the district presided over by Civil Judges (junior Division) that is, outside the local limits of the ordinary jurisdiction and in which the subject matter exceeds in amount or value ten thousand rupees. that being the limit of the peculiarly jurisdiction of the Civil Judge (Junior Division). The third Paragraph of See. 24 provides for the ordinary jurisdiction of a Civil Judge (junior Division). whether he is presiding over a Civil Court in the district or is a joint Civil Judge appointed or deputed to assist in the court of another Civil Judge. If a Civil judge (Junior Division) is presiding over a Court in the district, his ordinary jurisdiction would be confined to the local limits specified by the State Government under See. 22A. But if he is appointed or deputed to assist in the Court of another Civil Judge he would have no separate territorial jurisdiction specified for him but he would dispose of such civil business within the limits of his pecuniary jurisdiction as may, subject to the control of the District Judge be referred to him by the Judge of the Court to which he is appointed or deputed to assist. The pecuniarv jurisdiction of a Civil judge (Junior Division), in neither case would be limited to suits and proceedings in which the subject matter does not exceed in amount or value ten thousand rupees.'

In the background of the above said framework of the constitution of the Court of Civil Judge (Senior Division) and the Court of the Civil Judge (junior Division). the Division Bench considered the question as to what would happen if the subject-matter of the suit or proceeding is not susceptible to monetary evaluation. If the argument is correct that where the subject matter of the suit or proceeding is not capable of monetary evaluation it cannot be predicated that the subject matter does not exceed in amount or value ten thousand rupees and ,therefore, the suit or proceeding would not fall within the jurisdiction of account of the Civil Judge (junior Division) under the third paragraph of Section 24. The same argument must equally apply to negative the special jurisdiction of the Civil Judge (Senior Division) in respect of the suit or proceeding under See. 25. The special jurisdiction of the Civil Judge (Senior Division) under Section 25 is attracted only where the subject matter of the suit or proceeding exceeds the pecuniary jurisdiction of the Civil Judge (Junior Division) that is ten thousand rupees, and if the subject matter of the Suit or proceeding is incapable of monetary evaluation how can it be predicated that the subject matter exceeds in amount or value ten thousand rupees and if it cannot be so predicated. The condition defining the special jurisdiction of the Civil Judge (Senior Division) would not be satisfied and the Civil Judge (Senior Division) would have no jurisdiction to try and dispose of the suit or proceeding. This would create an anomalous situation as neither the Civil judge (Senior Division) nor the Civil Judge (junior Division) would have jurisdiction to try such a matter. The Division Bench stated that the answer to such a situation was clear. All suits and proceedings of civil nature are divisible only into two classes one class of those where the subject-matter does not exceed in amount or value ten thousand rupees and the other, of those where the subject-matter exceeds in amount or value ten thousand rupees. The reason is that in every suit or proceeding of a civil nature. the subject matter has to be valued in terms of money for the purpose of jurisdiction. So far as the valuation for the purpose of jurisdiction is concerned there has to be an evaluation of the subject matter. The Suits Valuation Act.1887 lays down the principle for valuation of the subject-matter of a suit for the purpose of jurisdiction .But there may be suit where the subject matter may be capable of being satisfactorily valued in terms of money and rules having been made by the High court under sec.9 no guidance may be furnished by the Suits Valuation Act. 1887, as to how the subject matter such valuation may be accepted by the Court as prime facie true unless the Court is satisfied that it is defective on account of some improper motive in which case the court would always consider what should be regarded to be the proper value. So, either the suit may be valued for the purpose of jurisdiction as subject matter of the suit exceeding Rs.10,000/- or below 10,000/- Where the subject -matter is incapable of evaluation. The principle is clear that the plaintiff may put his own valuation of the subject matter in the plaint and that would normally be accepted unless the valuation is a male fide one. So,. in either case the suit cab be valued and it is not correct to say that ' the subject matter is incapable of monetary evaluation.' The result is that if valuation does not exceed ten thousand rupees. The suit or proceeding would be within the jurisdiction of the Civil Judge (Junior Division) if it exceeds ten thousand rupees , the suit or proceedings would be within the special jurisdiction of the Civil Judge(Senior division) . The same position would also obtain in case of a suit arising within the local limits of the ordinary jurisdiction of the Civil Judge (Senior Division). Having been discussed thus for the Division Bench observed: 'The real question therefore. Which have to be answered for the purpose of determining which is the Court having jurisdiction to try a suit or proceeding is whether the subject matter of the suit or preceding is beyond the limit of the pecuniary jurisdiction the Civil judge not exceed the limit of the pecuniary jurisdiction(Junior Division) would have no jurisdiction to the suit or proceeding and it would have to go before the Civil Judge (Senior Division) in the exercise of his special jurisdiction. Now. where the subject of may be suits where the subject matter suit or proceeding is not susceptible of monetary evaluation it may not be possible to predicate that the may not be capable of being satisfactorily subject matter exceeds the iii-nit of Pecuniary jurisdiction of the Civil judge (Junior Division) and in that event it valued in terms of money and no rule should not fall within the special jurisdiction of the Civil Judge (Senior Division but would come within the having been made by the High Court ordinary jurisdiction of the Civil Judge (Junior Division). If it cannot, be said of the subject matter. whatever be the reason , that it does not exceed the limit of the Pecuniary jurisdiction of the Civil Judge (Junior Division). St must follow as a necessary corollary that it is within the limit of the pecuniary jurisdiction of the Civil Judge ( Junior Division). It will. therefore be seen that though the test set out in the third paragraph of Section 24 is well formulated in negative terms. it is really a Positive test which has to be applied and that test is whether the that in such cases the plaintiff may subject matter is within the Pecuniary jurisdiction of the Civil Judge (junior Division) which is ten thousand rupees.. To determine this we must ask the question whether the subject matter exceeds ten thousand rupees if it and such valuation may be accepted by does. the suit or Proceedings would be liable only by the Civil Judge (Senior Division) but if it does it would be within the Court as prime facie true unless there would be within the pecuniary jurisdiction. of the Civil Judge (junior Division) and would be liable by him. The Court is satisfied that it is defective division Bench observed:

'If this be the correct construction of the third paragraph of Section 24 in its inter-relation with See. 25. it must also which case the court would always could good when we read the third Paragraph with the second Paragraph of S. 24. This view which we are taking is also supported by the fifth paragraph of Sec- 23 where it has been Provided that a Joint Civil Judge (Junior division ) shall dispose of such civil business within the limits of his pecuniary jurisdiction as may be referred to be valued for the purposes of jurisdiction. The civil business referred to him must be within the limits of his Pecuniary jurisdiction, it should (not) transgress those limits. It is, Therefore clear that even if we are wrong, in the first Part of our reasoning, a suit or Proceeding in which the subject matter is not susceptible of monetary evaluation would fall within the ordinary jurisdiction of the Civil of Judge (junior Division) under the third paragraph of See. 24 and the civil Judge (junior Division) would be competent to try and dispose it of'. b2

As seen above. the Division Bench has observed that where it cannot be predicated that the subject matter exceeds the limits of the Pecuniary jurisdiction o f the Civil Judge (J. D.), for whatever reasons. the suit would not fall within the pecuniary jurisdiction civil Judge(Senior Division) but it would fall within the Pecuniary jurisdiction of the Civil judge(senior division). The term 'whatever may be the reason ' would include a case in which the plaintiff has not valued the subject matter of the suit for the purpose of jurisdiction. Where the subject -matter is capable of monetary evaluation .The term 'whatever be the reason' for coming to the conclusion that the subject matter does not exceed to the limit of the pecuniary jurisdiction of the civil judge (junior division) is a pointer for deciding the question of jurisdiction of the court and consequently for deciding the venue of appeal. The Division bench has read Section 24 paragraph 3 and Section 25 together and then has observed that the conclusion must hold good when the third paragraph of Sec.24 is read with second paragraph of Sec. 24. Thus the conclusion reached by the Division Bench is clear in its effect so far as the present appeal is concerned. The Pecuniary limits for jurisdiction are now changed and therefore where the subject-matter of the suit exceeds the valuation or Rs. 20.000/- it comes within the ordinary jurisdiction of the Civil Judge (Senior Division): where it does exceed Rs. 20.000/- it could come within the. competence of the Civil judge (junior Division). The plaintiff is entitled to Put his valuation of the subject matter of the suit and therefore normally there would be no difficulty in evaluating the value of the subject matter of the suit for the purpose of jurisdiction; Where. however the Plaintiff has not Put his own valuation, on the suit and if the subject matter of a suit or proceeding is not susceptible of monetary evaluation. the suit or Proceeding would fall within the pecuniary Jurisdiction of the Civil Judge -(Junior Division) and, not within the competence of the Civil Judge (Senior Division) and this would be the effect reached by reading section 24(3) and section 25 together as well as by reading section 24(3) and section 24(2) together.

26. The original petition is decided by the Extra Assistant Judge, Narol. Now, see. 16 of the Bombay Civil Courts Act, 1869 provides that where the Assistant Judge's decrees and orders in such cases are appealable, the appeal shall lie to the District Judge or to the High Court according as the amount or value of the subject-matter does not exceed or exceeds twenty thousand rupees. Since the appellant did not put his valuation in the petition for the purpose of jurisdiction I am bound to follow the effect of the judgment of the Division Bench in Chagan Karsan's case : AIR1973Guj165 (supra). I must uphold the objection raised by Mr. R. N. Shah about the want of jurisdiction of this Court to hear the appeal although it is raised at a belated stage.

27. In the result, the present appeal filed in this suit is held not sustainable for want of jurisdiction and therefore I direct that the appeal memo and the papers with it be returned to the appellant for presentation to the proper forum. There shall be no order for costs of this appeal.

28. After the arguments on the question of jurisdiction were over, Mr. M. F. Thakkar submitted- an application for amendment of the petition by Civil Application No. 757/84. The amendment sought for is that 'this petition is valued at Rs. 30, 100/- for the purpose of jurisdiction and advocate's fees and hence this petition is triable by this Court.' The application was strongly resisted by Mr. R. H. Shah. He has filed an affidavit-in-reply of the respondent Shantaben. '

29. Mr. Thakkar submitted that the application deserved to be allowed as it is not a mala fide application. The valuation for the purpose of jurisdiction was not placed in the petition through inadvertence and the application for amendment is submitted to cure the defect. If this application is allowed, it will nof affect the original trial as the matter would be triable only by the Assistarit Judge. No fresh evidence is required to be taken. The original relief is also not changed. The respondent is not likely to be prejudiced in any way. In any case costs Will cure the grievance of the other side.

30. As against that, Mr. R. N. Shah submitted that this application is given at an extremely belated stage and only with a view to confer jurisdiction on this Court to hear the appeal. The amendment is not covered by order 6, Rule 17 of the Civil Procedure Code. 0. 6, R. 17 of the Civil Procedure Code runs as under : -

'The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties'.

31. Mr. Shah submitted that this amendment has no reference to the real question in controversy between the parties. What it seeks to cure is the defect in the application relating to the valuation of the subject-matter for the purpose of jurisdiction. This question cannot be said to be a real question in controversy between the parties.,

32. Mo. Shah also submitted that if the application for amendment is allowed, it will have the effect of depriving the, opponent of a right to second appeal. Such deprivation of a right of second appeal cannot be compensated by the order for costs.

33. Mr. Shah further submitted that the Division Bench judgment in Chhagan Karsan's case : AIR1973Guj165 (supra) indicates that a party co-Inot be perinitied to place his own valtuation of the subject matter of the proceedings for the purpose of jurisdiction where the intention is to bring the matter within the competence of a particular Court. The Division Bench has referred to a passage from the judgment of the Division Bench in the case of Jasoda v. Chhotu, (1909) 11 Bom LR 1352. Chandavarkar J. delivering thejudgment of the Division Bench observed (at Pp. 17071) :-

It is contended before us on the authority of Aklemannessa 'Bibi v. Mahomed Hatem, (1904) ILR 31 Cal. 849, that the suit for restitution of conjugal rights, out of' which the second appeal arises, did not lie in the court of the Second Class Subordinate Judge, by whom it was tried, because, according to the Bombay Civil -Courts Act, that Court has jurisdiction to try no suit other than that the subject matter of which is of the value of less than Rs. 5,000/-, whereas a suit for restitution of conjugal rights (it is urged) is not one the subject-matter of which can be valued. What is meant by this argument is, as we understand it, that a suit for restitution of conjugal rights is not one the subject matter of which can be precisely and definitely valued. In such cases the law leaves it to the plaintiff to put his own valuation on the plaint and accepts it for the purposes of jurisdiction unless it is vitiated by some improper motive such as a deliberate design to give the court jurisdiction which it has not. As was said in the case of Lakshman Bhatkar v. Babaji Bhatkar, (1906) ILR 8 Bom 31, what prima facie determines the jurisdiction is the claim or subject matter of the claim as estimated by the plaintiff, and this determination having given the jurisdiction, the jurisdiction itself continues unless a different principle comes into operation to prevent such a result or to make the proceedings from the first abortive.'

The Division Bench in Chhagan Karsan's case : AIR1973Guj165 (supra) has also taken the similar view. It has observed that it is now well-settled that in such cases the plaintiff may put his own valuation on the subject-matter and such valuation would ordinarily be accepted by the court as the correct valuation of the subject-matter for the purposes of jurisdiction, unless the court comes to the conclusion that a wrong valuation has been put by the plaintiff out of improper motive, in which case the court would de6ide what should be considered to be the proper valuation.

34. It -is clear that the appellant has submitted his application for amendment only with a view that this Court would have the jurisdiction to hear the appeal.

35. Mr. Shah also cited the case of Hans Raj Kalra v. Kishan Kalra, AIR 1977 NOC 267 (Delhi) reported in the AIR 1977 Notes Section. F. S. Gill, J. observed as under:-

'A court having no jurisdiction over the suit, inherent or pecuniary, is not competent to allow amendment of the plaint, even if -the amendment sought brings the suit within the court's jurisdiction.'

In that case also, the defendants contended that the High Court had no pecuniary jurisdiction to try the suit, that the suit was not one for declaration simpliciter but included consequential reliefs flowing from the declaratory reliefs sought, that therefore it fell under S. 7(iv)(c) of the Court Fees Act 1870 so that under S. 8 of the Suits Valuation Act, valuation given for court-fee purposes was the valuation for jurisdictional purpose as well. The plaintiff sought to amend the valuation portion to change jurisdictional value of declaration. The plaintiff pleaded that since due to oversight valuation for court fee purposes had not been given in the prayers, the amendment should be allowed and that this would bring the suit within the pecuniary jurisdiction of the Court. Upholding the defendant's plea it was held that the amendment could not be allowed since the suit as originally brought was not within the pecuniary jurisdiction of the court. The plaintiffs contention that valuation for court-fee purposes was not given due to omission was rejected stating that court-fee of Rs. 20/- having been paid the plaintiff must be taken to have valued the prayer for purpose of court-fee at Rs. 200/- by necessary implication. The change of value of declaratory relief was in respect of value for jurisdictional purpose and not for court fee purpose. (The same is the case in the Present case). The valuation given for court-fee purpose held good for jurisdictional purpose for the suit of this kind by reason of S. 8 of the Suits Valuation Act. plaintiff's artificial valuation of declaration relief at Rs. 50,000/- for jurisdictional purpose could not be accepted in the place of valuation At Rs. 200/-, i. e. value fixed by plaintiff for court-fee purpose.

36. In the light of the view taken in Chhagan Karsan's case : AIR1973Guj165 (supra) and Jasoda's case (1909-11 Bom LR 1352) (supra), I am of the view that the present application for amendment cannot be sustained. Mr. K. F. Thakkar referred me to the observations made in the case of Jai Jai Ram Manohar Lal v. National Building Material Supply : [1970]1SCR22 . The observations therein are to the effect that rules of procedure are intended to be a handmaid to the administration of justice and a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. Here, it is not a question of the refusal of a just relief to the appellant. The present application for amendment relates to a question of jurisdiction and even if the amendment is disallowed the effect will not be to refuse just relief to the appellant, but the effect will be that the matter will go to the correct forum for deciding the appeal.

37. The application for amendment is dismissed for the grounds above-stated.

38. This is an old appeal of 1982. The original petition was presented by the appellant on 29-6-1979 as disclosed by the copy of the Rojnama which is before me .The matter is, therefore, required to be expeditiously dealt with. 1, therefore direct that the Court before which the appeal is presented shall give this appeal a top priority and that it shall be disposed of within six months of its presentation.

39. Order accordingly.