VIJAY KUMAR GARG Vs. SANATAN DHARAM MAHABIR DAL

JUDGEMENT

(1.) One of the issues in the suit from which the present proceedings have arisen was whether the said suit had been properly valued for purposes of Court-fee and jurisdiction. The issue was decided in favour of the plaintiff. The suit for possession was decreed. Against the decree of the trial Court the defendant-petitioners filed an appeal in the Court of the District Judge, Bhatinda. When the appeal came up for hearing before Shri Joginder Singh Sidhu, Additional District Judge, Bhatinda, an objection appears to have been raised by the defendant-petitioners about the suit not having been properly valued for purposes of Court-fee and jurisdiction by the plaintiff respondent in the trial Court. The learned Additional District Judge decided that objection by his order under revision dated July 26, 1976. He held that the suit for possession against the son of a deceased statutory tenant was a suit against a trespasser and, therefore, the plaint thereof was liable to be affixed with ad valorem Court-fee on the market value of the premises. He assessed the market value of the property at Rs. 7,000/- and adding thereto the sum of Rs. 600 representing the amount of the money claimed, directed the plaintiff to make good the deficiency in Court-fee on the plaint of the suit. The learned Additional District Judge further ordered that on the deficiency being made up by August 18, 1976 the defendant-petitioners (the appellants before the District Court) would make up the deficiency in Court-fee on the memorandum of appeal by September 7, 1976. It is against that order that the defendant-petitioners have come up to this Court.

(2.) There are two parts of this order. The first part is against the plaintiff-respondent and the second, which is consequential, is against the defendant-petitioners. If the first part is not found to be justified, the second one must automatically fall, Court-fee on the memorandum of appeal had to be paid in accordance with the valuation of the suit as given in the decree under appeal. The memorandum of appeal, when filed, was admittedly correctly valued in accordance with that proposition. The appeal having been entertained, registered and not having been dismissed under Rule 11 of Order 41 of the Code of Civil Procedure, a day for its hearing had been fixed under Rule 12 of that order and notice of the appeal had been sent under Rule 13 to the plaintiff-respondent. The procedure to be followed after both parties had appeared and the record of the trial Court had been received is laid down in Rule 16 onwards of Order 41. None of those rules envisage the hearing of the appeal on any ground on which a part of the appeal can be disposed of leaving the rest of the appeal intact. If the learned Additional District Judge came to a finding that the suit had not been properly valued for purposes of Court-fee and jurisdiction and, therefore, had not been heard by a Court competent pecuniary jurisdiction and that such defect of jurisdiction had resulted in prejudice to any of the parties, he could have set aside the decree of the trial Court and remanded the suit for hearing and disposal by a Court of competent jurisdiction. In the alternative, the Court could also have declined to entertain the plea of erroneous valuation of this suit for purposes of Court-fee and jurisdiction in the light of the provisions of Sections 11 and 19 of the Code of Civil Procedure read with Section 11 of the Punjab Suits Valuation Act and could have passed appropriate orders under those provisions. The grievance of the defendant-petitioners is that the appeal filed by them was properly valued for purposes of Court-fee in accordance with the terms of the decree against which the appeal had been filed and they could in any circumstances be asked to pay additional Court-fee on their appeal against that decree. The question of paying additional Court-fee or Court-fee on the basis of the market value of the property in the appeal could arise only if and after the original decree is set aside and a fresh decree is passed. Wherein the Court-fee paid on the basis of the market value is included. The other submission of the learned counsel for the petitioners is that the composite order directing the plaintiff to amend the valuation of the suit for purposes of Court-fee and jurisdiction and at the same time asking him to make up the deficiency in Court-fee is contrary to the requirements of Rule 11 of Order 7, as interpreted in Abdul Ghani v. Vishnunath, 1957 AIR(All) 337 I am inclined to agree with both the submissions of the learned counsel for the petitioners. The result is that the order of the lower Appellate Court directing the plaintiff to make up the deficiency in the Court-fee on the plaint cannot be sustained and has to be set aside. Once that is done, it is nobody's case that proper Court-fee has not been paid on the memorandum of appeal before the Court below. In this view of the matter, it is wholly unnecessary to go into the second limb of the defendant-petitioners' argument under which they have claimed and prayed that the order of the Additional District Judge be modified and the decree of the trial Court be set aside as being coram non judica on the ground that it was passed by a Subordinate Judge Third Class whose pecuniary jurisdiction went up to Rs. 5,000/- only. For the same reason it is not necessary for me to go into the details of the argument addressed before me by Mr. Suraj Parkash Gupta, learned counsel for the plaintiff-respondent, that the defendant-petitioners should not be allowed by the lower Appellate Court to raise the question of valuation of the suit for purposes of Court-fee and jurisdiction on account of the provisions of Rule 11 or Order 7 of the Code of Civil Procedure, Section 11 of the Punjab Suits Valuation Act and Section 12(ii) of the Court-fees Act. In the circumstances referred to above, I allow this petition, set aside the order of the lower Appellate Court, and direct that Court to hear and dispose of the defendant-petitioners' appeal in accordance with law. The plaintiff-respondent would be entitled to the refund of the extra Court-fee paid by him under the Order of the lower Appellate Court dated July 26, 1976, which has been set aside by me. Costs of the proceedings in this Court shall abide the result of the appeal in the lower Appellate Court. Parties have been directed to appear before the lower Appellate Court on March 14, 1977.