NARAYAN PRASAD SUKUL Vs. RAJ KISHORE MISRA

JUDGEMENT

(1.) This application is for leave to appeal to the Supreme Court on behalf of defendant No. 1 against a judgment of the High Court in second appeal dated 13-4-1951. The dispute relates to a building in the Purulia town known as Pratap Natya Mandir.

(2.) According to the case of the plaintiffs, defendant No. 2 had executed a lease dated 3-11-1941, in their favour, which was registered on 15-11-1941. The plaintiffs brought the suit on 30-8-1943, asking for a declaration and also for permanent injunction against defendant No. 1 from executing the decree which the latter had obtained in Second Appeal No. 68 of 1943. The case of the petitioner, was that, on 5-4-1940, defendant No. 2 executed a registered lease in his favour, and, upon the basis of this transaction, defendant No. 1 had brought a suit against defendants Nos. 2 and 3 for recovery of possession of the building in dispute. The suit was decreed, and the decree was affirmed in appeal by the District Judge, and, in second appeal, the High Court affirmed the decree on 6-5-1943, with certain modification. Upon a consideration of the rival contentions in the present case the Subordinate Judge decreed the suit of the plaintiffs which was affirmed by the District Judge in appeal. On 26-4-1943, defendant No. 1 preferred a second appeal in the High Court which was valued at Rs. 2,100/-. The Stamp Reporter objected that the valuation was Rs. 9,000/- and a first appeal ought to have been preferred. On 9-2-1948, the second appeal was converted into a first appeal by the order of the High Court. On 4-8-1948 a Full Bench of the Court decided in - 'Ramdeo v Raj Narain Singh', AIR 1949 Pat 278 (A) that Clauses (a) & (b) of Sub-Sec. (1) of Sec. 11 of the Suits Valuation Act, 1887, were disjunctive and not conjunctive, and that under Sec. 11 of the Act the disposal of the appeal by the lower appellate Court could not be questioned as being without jurisdiction on the ground of the valuation being beyond the pecuniary jurisdiction of that Court. It was further held by the Full Bench that simply because the lower appellate Court had no pecuniary jurisdiction over the appeal, which should have been heard as a first appeal in this Court, would not by itself amount to prejudice in the disposal of the case on merits. After the decision of the Full Bench, the Stamp Reporter said that the present suit should be treated as second appeal. Accordingly, on 11-3-1949 a Bench of this Court ordered that the first appeal would be reconverted into a second appeal. On 13-4-1951, the case was treated and heard as second appeal and was dismissed.

(3.) When this matter came up before the High Court in the first instance, we directed that the case should be remanded to the Subordinate Judge of Purulia for making an enquiry into the question of valuation. The Subordinate Judge has now made a report stating that the valuation of the subject-matter of the suit was Rs. 11,915.00 on 30/8/1943, and the valuation of the subject-matter at present in dispute is of the same extent. Mr. S. C. Ghosh who appears on behalf of the petitioner, contended that the petitioner had a right of appeal under Sec. 110, Civil P. C., before the promulgation of the Constitution of India, and that right of appeal was a vested right, and would continue irrespective of the fact that Article 133(1) stipulates that the valuation of the subject matter in dispute should be not less than twenty thousand rupees. In support of his argument, learned Counsel relied on a decision of the Bombay High Court, - 'Dajisaheb v. Shankarrao', AIR 1952 Bom 303 (B). We think that the contention of Mr. S. C. Ghosh on this point is well-founded. In the present case, the learned Subordinate Judge has valued the subject-matter in dispute at a sum of Rs. 11,915.00. On behalf of the opposite party, Mr. Mazumdar raised several objections to the report of the Subordinate Judge. Learned Counsel said that the valuation has been made on a wrong principle. But no such objection was raised before the Subordinate Judge before whom the opposite party appeared and contested the valuation. Counsel also stated that the valuation has been made on the profit from the cinema business, and not on the rental paid. This objection also was not raised before the learned Subordinate Judge who said that there was no evidence produced by the parties to show what was the profit from the cinema business.