G. Loganathan v. S. Chenniya Chettiar

This appeal is against the order of the learned Subordinate Judge, Sankari, in A.S No. 16 of 1993. returning the plaint for presentation in the proper Court on the ground of lack of pecuniary jurisdiction for the trial Court.

2. The appellant herein filed the suit for declaration and possession against the respondent/defendant before the District Munsif, Tiruchengodu. The suit was valued at Rs. 10,000/- for which the court fee was paid under Section 25-A of the Tamil Nadu Court Fees Act. Though the defendant, in the written statement, contended that the suit has not been correctly valued and that the learned District Munsif had no pecuniary jurisdiction to try the suit, this was found against him, by the trial Court. The suit was decreed in to and on appeal before the learned Subordinate Judge, Sankari, though the learned Subordinate Judge, had agreed with the findings of the trial court that the plaintiff is entitled to declaration and possession, he has found that the value of the suit exceeded the pecuniary jurisdiction of the District Munsif, Tiruchengodu, and therefore the trial by the learned District Munsif was not proper. On that finding, he returned the plaint for presentation in the proper Court. Hence, this appeal.

3. The suit property was purchased by the plaintiff under a sale deed Ex.A 1 dated 16.11.83 for Rs. 10,000/- and the suit was filed by the plaintiff within three months after the said sale. Therefore, on the basis of the value given in the sale deed, the plaintiff valued the suit property at Rs. 10,000/-. But in the sale deed Ex.A 1 while giving the description of the property, it is mentioned that the market value of the property is Rs. 28,300. In the Annexure Form 1.A of the sale deed also, the same value is given. Therefore, the learned subordinate Judge, taking the view that though the sale price under the sale deed was only Rs. 10,000/- as the market value of the property is described at Rs. 28,300/- in the very same sale deed, it has to be taken that this is the correct market price and as it exceeds the jurisdiction of the District Munsif, Tiruchengodu, he had no pecuniary jurisdiction to try the suit. The learned Subordinate Judge also has referred to the anterior title deed for the suit property which is marked as Ex.A 21 dated 10.6.76, which mentions the sale consideration of Rs. 25,000 only, though in that document also, in the description of property, the market value is given at Rs. 46,400/-. On the basis of this anterior title deed also as the suit property is one half of Ex.A 21 and the sale was seven years after Ex.A 21 sale deed. The learned Subordinate Judge viewed that the suit property must be worth more than Rs. 28,000/- on the date of the suit and therefore, the District Munsif, Tiruchengodu had no pecuniary jurisdiction to try the suit.

4. The learned counsel for the appellant Mr. Sekar contended that the value given at the foot of the description of property in the sale deed Ex.A 1 as well as Ex.A 21 is the guideline value as found in the register maintained by the Registering Officer and as the registration charges are being collected according to the guideline value, the writer of the documents gives the guideline value at the foot of the description of the property and this value does not represent the actual market value of the property. In Ex.A 21, though the property was sold only for Rs. 25.000/-. in the description of property, the market value is described at Rs. 46,400/-. Similarly in Ex.A 1 also though the property was sold for Rs. 10,000, in this document also, at the foot of the description of property, the market value is shown at Rs. 28,300. If really the market price of the property was at Rs. 46,400 and Rs. 28,400/- as described in Exs. A. 21 and A. 1, there was no necessity for the vendors under these documents to sell these properties for nearly one half of the market price. There is nothing to say that they were duress sales, compelling the owners of the properties to sell these properties for on half of the actual market price. Therefore, as rightly contended by the learned counsel for the appellant, Mr. Sekar, the value given at the foot of the description of the property, seems to be the guideline value as found in the register of the registering officer. It is true that in the sale deeds, it is not specifically mentioned that the value given at the foot of the description of property represents the guideline value. It is represented by the learned counsel Mr. Sekar that the document writers simply leave a space after description of property, to fill up the market price as per the guideline value and only at the time of the registration of the document, this space is being filed up mentioning that the market value is so much and the document writers do not think of mentioning that this value written by them is actually the guideline value. Anyhow, I feel that when the properties covered under Exs.A 21 and A. 1 were really worth Rs. 46,400 and Rs. 28,300, the vendors would not have sold these properties almost at one half of these values. Therefore, from this circumstance, I am satisfied that the market value mentioned on the foot of the description of the property in Ex.A 1 represents only the guideline value.

5. The Supreme Court and other Courts, including our High Court, have held that the guideline value is not the market value and it would be dangerous to value the property according to the guideline value because there is no guarantee or truth or correctness of the data given in the guideline value. In Naganatham v. Revenue Divisional Officer, Adilabad (AIR 1983 A.P 155), the Andhra Pradesh High Court has held that the fixation of market value cannot be made on the basis of the value noted in the market value register maintained by the Government and the Court has to take into account the price which a selling purchaser is prepared to pay to a willing vendor. This view has been confirmed by the Supreme Court in the same case which was later taken before the Supreme Court in Jawajee Naganatham v. Revenue Divisional Officer 1994 (4) S.C.C 595. In a recent case, Land Acquisition Officer v. Jasti Rohini 1995 (1) S.C.C 717, the Supreme Court has observed that valuation register on the basis of the notification under section 47-A of the Stamp Act is for collection of Revenue and it cannot be the basis for determination of the market value of the land. In this case also, the Supreme Court has observed that the price which the willing seller expects from the willing purchaser is the market price. This court also in Collector, Collector Of Nilgiris v. Mahavir Plantations Pte. Ltd. (AIR 1982 Madras 138) has held that to adopt figures prepared in the valuation guideline would be dangerous because they offer no gurantee of the truth or correctness of data. The Delhi High Court in Inder Prasad v. Union of India (AIR 1985 Delhi 304) also has repeated the same expression that the price which a willing seller might reasonably expect to obtain from a willing purchaser is the test to determine the market value and it cannot be based on the opinion or information given by the Government. Therefore, from these chain of decisions, it is made clear, that the guideline value cannot be the market value of the property as the guideline value is intended for the collection of the Revenue. As the market value alone is the criteria to value the suit and in this case there is no contra evidence on the defendant's side to show that the property covered under Ex.A 1 is more that the value given in the sale deed, as held in Varadarajulu v. Venkatakrishnan (1959) (1) M.L.J (Notes of cases 9), the valuation given in the sale deed has to be accepted. As a matter of fact, the Supreme Court in Lakshmi Ammal v. Madhavakrishnan (AIR 1978 S.C 1607) would point out that the question of court fee is a peripheral issue and when there is reasonable doubt, benefit must be given to the party, who pleads for the lesser court fee.

6. The learned counsel for the appellant Mr. Sekar contended that though the property covered under Ex.A 21 measuring 2.598 sq.ft was sold for Rs. 25,000, it includes a terraced house abutting the street whereas under Ex.A 1 sale deed, the real portion of that property having only the tiled construction was sold and therefore its value was accepted at Rs. 10,000 by both parties under Ex.A 1. There is no contra evidence on the defendant's side to accept that the suit property is worth more than Rs. 15,000 exceeding the pecuniary jurisdiction of the District Munsif, Tiruchengodu. Even assuming that due to the lapse of time, after 1976, the read portion of the property also covered under Ex.A 21 should be more than 10,000, there is nothing on record to show that the market value of the property was exceeding Rs. 15,000 which is the pecuniary limit for the purpose of jurisdiction of Munsif's Court. As observed by the Apex Court in the above decisions, as Ex.A 1 sale deed was between a willing purchaser and a willing seller, the value given therein alone should be accepted as the actual market price. Therefore, the learned Subordinate Judge is not correct in valuing this property at Rs. 28,000 for the reason that the entire property was valued at Rs. 46,000 in the year 1976.

7. Even assuming that the market price of the property exceeds the pecuniary jurisdiction of the District Munsif, Tiruchengodu, the appellate Court cannot simply return the plaint on the ground of went of pecuniary jurisdiction of the trial Court unless the defendant satisfies the requirements of Section 21 of Code of Civil Procedure. While referring to section 11(b) of the suits valuation Act, 1887, (Act 7 of 1887) in Yuvarajah of Pithapuram v. The Province of Madras (1946 (II) Madras Law Journal 282), this Court has held that, unless the trial had prejudicially affected the disposal of the suit, the plaint cannot be returned. Similar to section 11(b) of the Suits valuation Act, 1887. is Section 54 (1)(b) of the Tamil Nadu Court Fees and Suits Valuation Act. Section 54(1)(b) reads,

“54. Procedure where objection is taken on appeal or revision that a suit or appeal was not properly valued for jurisdictional purposes.

1. Notwithstanding anything contained in Section 99 of the Code of Civil Procedure, 1908 (Central Act V of 1905) an objection that by reason of the over valuation or undervaluation 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 there to shall not be entertained by an appellate Court, unless

(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 over valuation or under valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.”

Section 21(2) of Code of Civil Procedure, which deals with the objection to the jurisdiction, reads:

“1. Objections to jurisdiction: (1)…. a Court with reference to the (2) No objection as 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.”

8. From these provisions, it is very clear that when objection was taken in the Appellate Court with regard to the pecuniary jurisdiction of the trial Court, the trial court cannot return the plaint unless it is shown that the under valuation has prejudicially affected the merit of the disposal. In this case, the learned District Munsif tried the suit in full and has found that the plaintiff is entitled to the relief of declaration and possession. It is true that the question of jurisdiction has been taken by the defendant in the trial court itself. But the Appellate Court, while considering the objection as to the jurisdiction, unless it is satisfied that the trial before the lower court has prejudicially affected the disposal of the suit, cannot return the plaint even if it was satisfied that the trial court had no jurisdiction to try the suit. The Supreme Court in Pathumma v. Kuntalan Kutty (AIR 1981 S.C 1683) has laid down that under Section 21(3) Code of Civil Procedure, the objection to territorial jurisdiction of a Court before the Court of Appeal cannot be entertained unless the objection was raised at the proper time and that the trial in a wrong court had led to a failure of justice. In the latter decision also, the Supreme Court has taken the same view in R.S.D v. Finance Co. Pvt Ltd. v. Shree Vallabh Glass Works Ltd. (AIR 1993 S.C 2094) repeating that for the objection as to the jurisdiction in the Appellate Court, three conditions are to be satisfied;

(1) that the objection was taken in the Court of first instance at the earliest possible opportunity;

2 Where issues were settled then at or before such settlement of issues; and

3 that there had been a consequent failure of justice.

Therefore, even if the objection was raised by the defendant in the trial court at the earliest opportunity, unless it is shown in the Appellate Court that on account of the trial by the wrong court, there has been failure of justice, the Appellate Court cannot interfere in the findings of the trial court on the ground of the jurisdiction of the Court. The Andhra Pradesh High Court also has expressed this view in Spl. Sec. Govt of Rajasthan v. Venkataramana Seshaiyer (AIR 1984 A.P 5). In this case, from the judgment of the Court below, any prejudice to the appellant on account of the trial by the District Munsif Tiruchengode, has not been argued and the learned Subordinate Judge also has nowhere held that the trial by the District Munsif has prejudiced the merit of the disposal. Therefore, the Appellate Court ought not to have returned the plaint when the conditions laid down under section 21(2) Code of Civil Procedure have not been satisfied by the appellants.

9. One other contention raised by the learned counsel for the respondent is with regard to the maintainability of the C.M.A as the lower Court has given concurring finding with regard to the claim of the plaintiff. According to the learned counsel for the respondent, even though the plaint has been returned by the learned Subordinate Judge, Sankari, for presentation in the proper Court, as he has given the findings on all other issues in favour of the plaintiff/appellant, the order must be treated as a disposal on merit and therefore the appeal under order 43 Code of Civil Procedure could not be entertained. Under Order 43 Rule 1-A, an appeal shall lie from an order under Rule 10 of order 7 Code of Civil Procedure returning a plaint to be presented to the proper Court. In this case, the Appellate Court has returned the plaint for presentation in the proper Court under Order 7 Rule 10 Code of Civil Procedure. Therefore, certainly, the appeal is maintainable under order 43 Rule 1-A. A doubt may arise from the explanation to Rule 10 of Order 7, which reads that

“For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit the return of the plaint under this sub rule”.

This explanation may lead to a doubt whether the Appellate Court can return the plaint without setting aside the decree passed in a suit. The Appellate Court having found that all the findings of the trial Court were erroneous, may set aside the decree. On such occasions, a question may arise whether it would be necessary to return the plaint for presentation in the proper court because the plaintiff was non suited and there was no necessity for a trial: To answer this question, the explanation to Rule 10 reads that even in such cases, the Court may return the plaint after setting aside the decree passed in the suit. Anyway, in this case, the learned Subordinate Judge has given a clear finding that the plaintiff is entitled to the relief of declaration and possession confirming the findings of the trial Court though he differed only on the question of the pecuniary jurisdiction of the trial Court. As the plaint has been returned under Order 7 and 10 Code of Civil Procedure, the appeal is maintainable under Order 43 Rule 1-A of Code of Civil Procedure and therefore, the filing of Second Appeal will not arise in this case. As I fully agree with the contention taken by the learned counsel for the appellant, the order of the court below, which is erroneous, is unsustainable.

10. In the result, the order of the court below returning the plaint is set aside, resulting in the confirmation of the decree of the trial Court. The appeal is allowed. No costs.