HUKMICHAND Vs. SURAJBAI

JUDGEMENT

(1.) THE Respondent Surajbai instituted a suit under Order 21, Rule 63, Code of Civil Procedure code against the Appellants and her husband the Respondent Sagarmal claiming a declaration that a house situated in Jbabua which the Appellants had attached in execution of a decree obtained by them against Sagarmal belonged to her and was, therefore, not liable to attachment and sale in execution of the decree. The Plaintiff did not state the valuation of the suit. On 7th May 1955, the Civil Judge, First Class, Jhabua, recorded an order stating that the Plaintiff had not stated the valuation for purposes of jurisdiction and directing her to state the price for which the house was sold at the auction in the execution proceedings. On 21st October 1955 the Plaintiff made an application for amendment of the plaint so as to add the statement that the valuation of the suit for purposes of jurisdiction was Rs.4,600. This application for amendment was accepted by the trial Court and the Plaintiff was allowed to amend the plaint accordingly. The Defendant -Appellants then raised the objection that the Plaintiff was asked to state the price for which the house was sold in the court -auction; that this price was Rs.6,551; that the Plaintiff had not valued the suit according to the order made by the Court on 7th May 1955; and that, therefore, the suit should be dismissed under Order 7, Rule 11, Code of Civil Procedure code. In reply to this objection, the Plaintiff stated that she had stated the valuation of the suit on the basis of the value of the decree in execution of which the house was sold; that she had overlooked the direction in the order dated 7th May 1955 calling upon her to state the price fetched by the house in the auction; and that if that price was to be the valuation of the suit then she be allowed to amend the plaint in that respect. The trial Judge rejected this prayer of amendment and holding that the Plaintiff had not complied with the order dated 7th May 1955 and had deliberately undervalued the suit. Accordingly we dismissed the suit under Order 7, Rule 11(b), Code of Civil Procedure code.

(2.) THEREAFTER the Plaintiff preferred an appeal before the Additional District Judge of Jhabua. The learned Additional District Judge allowed the appeal and remitted the case to the original Court with the direction that the Plaintiff be allowed to state her own valuation of the suit and that if this valuation was improper then the Court should determine 'judicially' after recording the evidence of the parties. The Defendants Hukmichand and Chunnilal have now filed this appeal against the order of the Additional District Judge.

(3.) I am unable to accept this contention. Under Section 23 of the Madhya Bharat Civil Courts Act, 1949 for the purposes of determining the proper appellate Court in a civil suit, what has to be looked at is "the amount or the value of the subject -matter of the suit". Such ''amount or value of the subject -matter of the suit'' must be taken to be the value assigned by the Plaintiff in his plaint and not the value as found by the Court unless the Plaintiff has accepted the adjudication of the Court as the value of his suit for purposes of jurisdiction or unless it appears that either purposely or through gross negligence the true value of the suit has been altogether misrepresented. This principle has been laid down by this Court in Chunnilal v. Kishandas AIR 1926 Nag. 71 following the decisions of the Allahabad High Court in Mahabir Singh v. Beharilal ILR 13 All. 320 and Madho Das v. Ramji Patak ILR 16 All. 286. The same view was taken by the Judicial Commissioner's Court, Nagpur, in Dhirajsingh v. Rajaram 8 IC 1125 and Olpherts v. Arjundas 20 I.C. 928. In the instant case there was no adjudication by the Court of the value of the suit for purposes of jurisdiction and no acceptance of it ever by the Plaintiff. What happened was that the Plaintiff did not originally state the valuation of the suit. When this defect was noticed, the Court made an order on 7th May 1955 directing the Plaintiff to state the price fetched by the house in suit at the auction sale. This order did not decide that the valuation of the suit would be the value for which the house had been sold in the execution proceedings. It must be remembered that in a suit under Order 21, Rule 63, Code of Civil Procedure code seeking a declaration that the property attached is or is not liable to be attached and sold, the value of the suit for purposes of jurisdiction is the amount of the decree or the value of the property whichever is less. On 21st October 1955 the Plaintiff applied for amendment of the plaint so as to add the statement that the valuation of the suit for purposes of jurisdiction was the value of the decree viz. Rs.4,600. This amendment application was accepted by the Court on that day and the valuation of the suit was fixed at Rs.4600. Subsequently the Appellants raised the objection that the Plaintiff had not complied with the order of the Court made on 7th May 1955 and disclosed the value of which the property had been sold, and as this value was Rs.6,551 the Plaintiff's suit should be dismissed under Order 7, Rule 11, Code of Civil Procedure code. The Appellants also contended that the Plaintiff's willingness now to state the value fetched by the house at the auction was not a compliance of the order dated 7th May 1955, but was only a second application for amendment of the plaint in respect of the valuation for purposes of jurisdiction and that this application for amendment should be rejected. The learned trial Judge accepted this contention of the Appellants and holding that the Plaintiff's application dated 25th October 1955 stating the price at which the house was sold in execution proceedings was an application for amendment of para.8, of the plaint which had already been amended once, before, rejected that application. The result of that rejection was that the valuation put by the Plaintiff by her application dated 21st October 1955 remained unaltered. If the Plaintiff's application dated 25th October 1955 had been accepted by the lower Court and if the Plaintiff had been allowed to state the valuation of the suit as Rs.6,551, that is the price fetched by the house at the auction sale, then it could have been urged with some force that the Plaintiff herself had stated the valuation of the suit as Rs.6,551. The position is very simple. The Plaintiff did not first state the valuation of the suit. She then stated it to be Rs.4,600 which was the amount of the decree. This valuation was first accepted by the Court. Later on when the Plaintiff applied for an alteration in the figure of the valuation she was not allowed to do so. The result of this refusal is that the valuation of Rs.4,600 put by the Plaintiff remains as the value of the suit assigned by the Plaintiff. From what has been stated above, it is plain that there was no adjudication by the Court of the valuation of the suit for purposes of jurisdiction and even if by some stretch of language the order dated 7th May 1955 is regarded as one determining the valuation of the suit there was never any acceptance of that valuation by the Plaintiff. It is noteworthy that in the appeal which the Plaintiff preferred before the Additional District Judge one of the grounds raised in the memorandum of appeal was that the valuation of the suit for purposes of jurisdiction had been correctly put down as Rs.4,600 and that the trial Court had erred in holding that the Plaintiff should have valued the suit at the price for which the house was sold at the auction. This makes it very clear that the Plaintiff never accepted that the value of the suit for purposes of jurisdiction was Rs.6,551. In my opinion, the valuation of the Plaintiff's suit being Rs.4,600 the appeal which she preferred before the Additional District Judge was competent. Learned Counsel for the Appellants referred me to a decision of the Calcutta High Court in Ranjit Missir v. Ramudar Singh 16 I.C. 940. That case does not appear to me to be of any assistance to the Appellants. In that case following the decision in Ijatulla v. Chandra Mohan ILR 34 Cal. 954 it was observed that the forum of appeal cannot be determined by reference to the arbitrary valuation initially put forward by the Plaintiff; it must be regulated by the real valuation as ultimately settled at their instance. Here the valuation of Rs.4,600 put by the Plaintiff cannot be said to be arbitrary. That was the valuation of the decree in execution of which the house in question had been attached and sold, and as the price fetched by the house at the auction was higher than Rs.4,600 the valuation of the Plaintiff's suit could not but be Rs.4,600. There was no adjudication of the valuation of the suit and no acceptance of it by the Plaintiff.