PUTTAMMA Vs. VEERABHADRA MUDALIAR AND

JUDGEMENT

(1.) The plaintiff who is the appellant before us filed two claim petitions in Misc. Cases Nos. 35 and 36 of 1947-48 in the Court of the First Munsiff of Mysore objecting to the attachment of a house in execution of two decrees obtained by defendants 1 and 4 against defendants in O. S. No. 406/45-46 and O.S. No. 328/46-47. Her claims were disallowed and the filed a suit O. S. 526/47-48 under Order 21, Rule 63, Civil P. C., in the same Court for setting aside the summary orders passed in these miscellaneous proceedings. She first paid on her plaint a court-fee of Rs. 12-8-0 fixed under Article 11 of Schedule II, Mysore Court-Fees Act, and later on paid a further sum of Rs. 12-8-0 as she was asking for two orders to be set aside. In the plaint the value for jurisdiction was not given. In their written statements defendants l and 4 pleaded that the property included within the boundaries given in the schedule to the plaint really consisted of two houses and that their value was more than Rs. 5,000 and that the Munsiff Court had no jurisdiction to try the suit.

(2.) It is recorded by the Munsiff in para. 3 of his judgment that the objections in respect of which issues 1, 2, 6, 7 and 8 were framed, viz. whether the plaint schedule property comprised one house or two houses, whether its value was beyond the Court's pecuniary jurisdiction, sufficiency of court-fees and misjoinder were agreed to be unnecessary at the stage of the arguments by all the counsel appearing in the case. The Munsiff also adds that they have become unnecessary in view of the reply statement filed by the plaintiff confining her claim only to door No. 294/1 and her having paid the additional court-fee for setting aside the two summary orders. The Munsiff recorded his findings on all the other issues relating to the merits of the case and decreed the suit in favour of the plaintiff. Two appeals R. As. Nos. 54 and 55 of 1949-50 were filed by defendants 4 and 1 respectively against the judgment of the Munsiff.

(3.) In the appeal memo in R. A. No. 54/49-50 filed by defendant 4 no ground was taken regarding the jurisdiction nor is a complaint made that the Munsiff erred in not recording his findings on all the issues In the appeal memo in R. A. No. 65/49-50, however, defendant-appellant 1 complained that the lower Court erred in not giving findings on all the issues and in not noticing the defects as to multifariousness and jurisdiction. The learned Additional Subordinate Judge heard both the appeals together. He set aside the judgment of the Munsiff and remanded the case to him for fresh disposal according to law after giving findings on all the issues. The learned Subordinate Judge considered that issues 1 and 2 were important once as they related to the jurisdiction and that as the Munsiff had not given a finding on these issues, his judgment was not in accordance with law. He also considers that there was a material irregularity in the judgment as the Munsiff bad not given a finding on all the issues. He has nowhere in his judgment referred to the record in Para. 3 of the judgment of the Munsiff to the effect that all the parties were then agreed that there was no need to give findings on those issues. Issues 1 and 2 involved, not pure questions of law, but questions of fact and when the parties had through their counsel informed the Court that they did not want findings on those issues, we think the Munsiff was perfectly justified in not giving such findings Issues 1, 2, 6, 7 and 8 related to the market value of the property, misjoinder of causes of action and sufficiency of court-fees, and apparently the counsel for the defendants in the trial Court thought and it appear to us quite reasonably that there was no substance in the objections on those points and had thought fit not to press them. While the learned Subordinate Judge has not referred at all in his judgment to the note by the Munsiff we do not also find any explanation in the appeal memo in R. A. No. 55 of 49-50 as to how after abandoning the pleas, covered by issues 1, 2, 6, 7 and 8 defendant 1 could be permitted to re open the matter in the appellate Court. In this connection it is significant to observe that in R. A. No. 54/49-50 no grounds are at all taken in these matters.