CHHAGAN KARSAN Vs. BHAGWANJI PUNJA

JUDGEMENT

(1.) This Second Appeal comes before us on a reference made by M. U. Shah J. The appellant is the original plaintiff and the respondents are the original defendants. The appellant filed Civil Suit No. 168 of 1968 in the Court of the Civil Judge (Senior Division) Jamnagar claiming permanent injunction restraining the respondents from obstructing the appellant in the exercise of his right of way of his fields bearing Survey No. 719 and 732 through the Shedha that is the boundary line of the fields of the respondents. Since the fields of the respondents over which Lakshman Bhatkar v. Babaji Bhatkar 8 Bom.the right of way was claimed by the appellant were situate in the Sim of Jamnagar but outside its municipal limits the suit fell within Clause (c) of sec. 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 way claimed by him dismissed the suit. The appellant thereupon preferred Civil Appeal No. 180 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 established and he accordingly dismissed the appeal. This led to the filing of the present 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 subject 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 0 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 recent decision given by S. H. Sheth J. sitting as a single Judge in Khimji Jiva v. Narendrakumar (1972) XIII G.L.R. 23 The respondents gave a two-fold answer to this contention. One answer was on the merits of the contention. The respondents urged that the contention of the appellant supported though it was by the decision of S. H. Sheth J. was not well-founded and the decision of S. H. Sheth J. required reconsideration by a Division Bench of this court. The respondents also urged in the alternative and that was the second answer given by them that in any event even if the objection to the jurisdiction of the Second Joint Civil Judge (Junior Division) was well-founded the appellant could not be permitted to take it for the first time at the hearing of the Second Appeal since it was not taken at any earlier stage of the proceedings. The questions arising on these rival contentions were of great importance since they affected a large number of suits in the mofussil and hence M. U. Shah J. raised the following two questions and referred them for decision to a Division Bench of this court:-

(2.) The determination of the first question turns on a proper interpretation of a few relevant provisions of the Bombay Civil Courts Act 1869 We shall presently refer to these provisions but before we do so we may point out that the first question is based on the postulate that the suit in regard to which the question arises is one in which the subject matter is incapable of monetary evaluation. This postulate is in our opinion incorrect because as we shall point out a little later so far as valuation for the purpose of jurisdiction is concerned there is no such thing as subject matter being incapable of monetary evaluation. That concept is wholly inappropriate in this context 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. But of that later. Turning our attention first to the provisions of the Bombay Civil Courts Act 1869 we find that there are two sections which primarily call for consideration but in order to understand their true import it is necessary to refer to some other sections as well. Sec. 21 provides that there shall be in each district so many Civil Courts subordinate to the District Court as the State Government shall from time to time direct. The Judges of such subordinate courts are says sec. 22 to be appointed by the State Government and they are called Civil Judges. Sec. 22A empowers the State Government by notification in the Official Gazette to fix and from time to time alter the local limits of the ordinary jurisdiction of the Civil Judges. a hen follows sec. 23 which consists of several paragraphs. We are concerned with the fifth paragraph. It provides that For the purpose of assisting the Judge of any subordinate court in the disposal of the civil business on his file the High Court may appoint to such Court from the members of the subordinate Civil Judicial Service of the State one or more Joint Civil Judges or the District Judge may with the previous sanction of the High Court depute to such court the Judge of another subordinate court within the district and proceeds to add:- A Civil Judge thus appointed or deputed to assist in the court of another Civil Judge shall 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 such court. Sec. 24 divides Civil Judges into two classes:- Civil Judge (Senior Division) and Civil Judge (Junior Division). What shall be the jurisdiction of Civil Judge (Senior Division) and Civil Judge (Junior Division) is set out in the second and third paragraphs of sec. 24 which together with the proviso enact the following provision:-

(3.) 3 The argument of the appellant based on these provisions was that the second paragraph of sec. 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 whether the value of its subject matter exceeds or does not exceed ten thousand rupees. The jurisdiction conferred on a Civil Judge (Junior Division) under the third paragraph of sec. 24 is however a restricted jurisdiction in that a Civil Judge (Junior Division) can try and dispose of only such original suits and proceedings of a civil nature wherein the subject matter does not exceed in amount or value ten thousand rupees. Therefore a question arises whether a Civil Judge (Junior Division) has jurisdiction to try and dispose of a suit or proceeding of a civil nature which has come before him the test which will have to be applied for the purposes of determining the question would be whether the subject matter of the suit or proceeding does not exceed in amount or value ten thousand rupees. Now if the subject matter of the suit or proceeding is capable of monetary evaluation there is no difficulty in applying this test. If the subject matter of the suit or proceeding does not exceed in amount or value ten thousand rupees the Civil Judge (Junior Division) would on the plain terms of the third paragraph of sec. 24 have jurisdiction to try and dispose of the suit or proceeding. If on the other hand the subject matter of the suit or proceeding exceeds in amount or value ten thousand rupees the Civil Judge (Junior Division) would have no jurisdiction and the suit or proceeding would be triable only by the Civil Judge (Senior Division). But the difficulty would arise where the subject matter of the suit or proceeding is not capable of monetary evaluation. Where such is the case it cannot be predicated that the subject matter of the suit or proceeding does not exceed in amount or value ten thousand rupees and in that event the condition defining the jurisdiction of the Civil Judge (Junior Division) would not be satisfied and the suitor proceeding would be outside the jurisdiction of the Civil Judge (Junior Division). The appellant contended on the basis of this submission 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 sec. 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 sec. 24. This contention was sought to be supported by reference to the decision of S. H. Sheth J. in Khimji Jiva v. Narendrakumar (supra). Now they can be no doubt that the decision of S. H. Sheth J. does support the contention urged on behalf of the appellant but for reasons which we shall presently state we do not think the contention is well-founded. If we may say so with the greatest. respect to the learned Judge the decision of S. H. Sheth J. does not lay down the correct law.