P. THIRUMALAI Vs. M.P. KOTTAMALAI AMMAL

JUDGEMENT

(1.) THESE two petitions have been filed for review of a judgment of this Court in S. A. Nos. 790 and 1247 of 1971 on the ground that the value of the subject -matter of the appeals is Rs. 20,000 and upwards and, therefore, ought to have been heard and decided by a Division Bench and could not have been dealt with by a Single Judge. The Office raised an objection as to the maintainability of these petitions on the ground that the values of the subject -matter of the appeals, as given in the trial Court, the lower appellate Court and in the second appeals, were for less than Rs. 20,000 and that it was not open now to question the said valuations. The facts relevant for deciding the question may now be briefly stated. The petitioner in these petitions filed O. S. No. 1517 of 1966 for a declaration that he is the owner of the suit property which is an extent of 6 grounds and 355 sq. fit comprised in R. S. No. 174 of Nungambakkam village within the sub -registration district of T. Nagar and that the defendant has no title to the same. The plaintiff alleged that the property was purchased by him in the name of the defendant under a sale deed dated 6th May, 1941 and that, therefore, he is the real owner of the property. He also pleaded that he had been in possession and enjoyment of the same ever since the date of purchase. He had valued the relief at Rs. 800 under Section 25(d) of the Tamil Nadu Court -fees and Suits Valuation Act, 1955 and had paid a Court -fee of Rs. 60.50. The defendant in the suit, who is the respondent herein, filed O. S. No. 1611 praying for a decree directing the petitioner herein to hand over possession to her of the sale deed dated 6th May, 1941. This prayer was asked for on the basis that the suit property was purchased by her from and out of her own funds and that sometime after the death of her husband, the petitioner, who was residing with her, had stealthily removed the title deed from her possession. She valued the relief at one -fourth of Rs. 1,400 which is the sale consideration under the sale deed dated 6th May, 1941, and paid a Court -fee of Rs. 26.75 P. under Section 24 (2) (a) of the Court -fees Act. The suits were jointly tried by consent of parties and the trial Court decreed O. S. No. 1517 of 1966 and dismissed O. S. No. 1611 of 1968. The respondent herein preferred two appeals in the Court of the Principal City Civil Judge, Madras. In these appeals, the values as given in the trial Court were adopted. The appeals were dismissed and the respondent preferred the above two second appeals, in which also she valued the reliefs as in the Courts below. As the valuations in these second appeals were far below Rs. 20,000 they were posted for final disposal in this Court. At the time of the hearing of these appeals, no objection was taken by either of the parties that the value of the subject -matter of the appeals is more than Rs. 20,000 and that they should be heard by a Division Bench. The second appeals were allowed and the suit, O.S. No. 1517 of 1966 was dismissed and the suit O. S. No. 1611 of 1968 was decreed. Thereafter, these petitions have been filed for review of the judgment on the ground that the market value of the suit property on the day when the appeals were heard and disposed of was more than Rs. 1,50,000 and that therefore, they should have been heard by a Division Bench.

(2.) ORDER 1, Rule 2 (5) (c) of the Rules of the Appellate Side of the High Court reads as follows:

(3.) BUT , the learned Counsel for the petitioner contended that inspite of the provision in Section 54, it was open to him, to raise the question of valuation as, under Order 1, Rule 2 (5) (c) of the Appellate Side Rules of this Court, when the value of the subject -matter of the appeal is Rs. 20,000 or upwards, it shall have to be heard and determined by a Bench of two Judges. He referred, in this connection to the language used, namely, ''the value of the subject -matter of the appeal" and stated that it is similar to the language used in Article 133 of the Constitution of India prior to its recent amendment and Section 110 of the Code of Civil Procedure and that he could raise this question of valuation at the stage of hearing of the second appeal or after the disposal of the same. He also relied on a Full Bench decision of this Court in Kuppanna v. Peruma : AIR 1961 Mad 511. In that case, the suit was valued by the plaintiffs at Rs. 9,650. The suit was decreed by the trial Court. When the defendants filed the appeal to the High Court, they adopted, that value for the purpose of payment of the Court -fee. After the second appeal was dismissed, a petition for leave to appeal to the Supreme Court under Article 133 of the Constitution was filed. In that petition the defendants contended that the value of the subject -matter of the suit, given by the plaintiffs and adopted by the defendants in the appeals, was erroneous and that the real value of the property was and continued, at all times to, be more than Rs. 20,000 and that, therefore, he could prefer an appeal to the Supreme Court. The question that was referred for the opinion of the Full Bench was 'whether, for ascertaining the value of the subject -matter in dispute for the purpose of Article 133 of the Constitution and section no, Civil Procedure Code, in the Court of the first instance or in the proposed appeal, it would be open to any party, be he the plaintiff or the defendant, to go behind the valuation adopted in the plaint or in the memorandum of appeal as the case may be and show the real value thereof.