KAMALAKSHI AMMA Vs. KARTHYAYANI AMMA

JUDGEMENT

(1.) THE 1st defendant - petitioner in I.A.No. 116/99 in O.S.No.510/96 on the file of the Munsiffs Court, Kozhikode is the revision petitioner. The LA. was filed by the petitioner to review the judgment and decree passed in O.S.No.510/96 under O.47 R.1 of C.P.C. alleging that the decree and judgment passed by the lower court is a nullity since the lower court had no pecuniary jurisdiction to entertain and try the suit. By the impugned order the lower court dismissed the petition. Hence the C.R.P. is filed before this court.

(2.) THE revision petitioner has contended that respondents 1 and 2 herein, the plaintiffs before the lower court had valued the suit at Rs. 1,01,500/- for the purpose of court fee and jurisdiction and since the Munsiffs Court has got only pecuniary jurisdiction to entertain and try suits valued up to Rs. 1 lakh, the above suit is beyond the pecuniary jurisdiction of the Munsiff's Court. It is also contended by the petitioner that even though neither the plaintiffs nor the defendants nor the court noticed this fact and judgment and decree were passed by the lower court, since the lower court had no jurisdiction to entertain and try this suit, the decree and judgment passed by the lower court in this suit being nullity, are liable to be reviewed under O.47 R.1 of C.P.C.

(3.) THE counsel for respondents 1 and 2 submitted that even if the suit was beyond the pecuniary jurisdiction of the Munsiffs Court, the petitioner has not raised such a contention either during the pendency of the suit till the suit was disposed of by the Trial Court or in the several proceedings taken by her with regard to the subject matter in the suit before this court and the lower appellate court. He has further submitted that absolutely no contention is raised by the petitioner with regard to the pecuniary jurisdiction of the Munsiff's Court either in the written statement or any issue regarding jurisdiction was raised or any evidence adduced by the petitioner or any argument advanced before the lower court regarding the maintainability of the suit and the pecuniary jurisdiction of the lower court to entertain and try the suit. On the other hand, petitioner has filed O.P.10675/98 before this court for a direction to dispose of the suit and this court allowed the O.P., issuing the direction. Even though the petitioner challenged the judgment in the O.P. in W.A.1818/98, a Division Bench of this court confirmed the judgment passed by this court in O.P. 10675/98 and directed the Trial Court to dispose of the suit within three months. Thereafter the lower court tried the suit and passed the decree and judgment on 22-12-1998. Subsequently the petitioner filed I.A.No.537/99 for injunction regarding management of the school sought to be partitioned in the suit etc. till the filing of the appeal against the decree and judgment passed by the Trial Court, which was allowed. Accordingly, the petitioner filed A.S.76/99 before the District Court, Kozhikode challenging the decree and judgment passed by the Trial Court. The lower appellate court passed conditional order staying the execution of the decree. The petitioner challenged that order before this court in revision and this court made the stay order passed by the lower appellate court absolute in the revision petition. Therefore, the counsel for respondents 1 and 2 submitted that even if the Trial Court lacked pecuniary jurisdiction in the suit, the petitioner has waived her contention with regard to the pecuniary jurisdiction of the Trial Court and participated in the trial and all the proceedings arising out of the suit and therefore, the petitioner is precluded from challenging the pecuniary jurisdiction of the Trial Court subsequently.