HABIB BHAT Vs. JUMMA PISAR PARVARDAH

JUDGEMENT

(1.) IN this Civil second appeal against the judgment and decree of the District Judge, Anantnag dated 30 -5 -1974, a preliminary objection was raised before the erstwhile Chief Justice (Shri Mr. A Ansari) on behalf of the respondent against the maintainability of the appeal under cl. (d) of Sub -section (1) of section 100 of the Code of Civil Procedure. The objection was raised on the ground that the value of the subject matter of the civil suit did not exceed Rs. 10O/ - It was pointed out that the appellant who is the plaintiff in the suit has valued the suit at Rs. 5/ - for purposes of jurisdiction and court fees and that even in the first appeal filed by the appellant herein as well as in the second appeal filed by him in this court, the subject matter of the appeal was valued at Rs. 5 - for purpose of jurisdiction and court fees. It was contended on behalf of the respondent that the second appeal was not maintainable under cl. (d) of sub -section (1) of Section 100 C. P. C. On the objection being raised on application was filed by the appellant for leave to amend the memorandum of the appeal by raising the valuation of the subject matter of appeal to Rs. I50/ - This application was opposed by the respondent on the ground that such an application war not countenanced by the procedure.The questions were debated before the Chief Justice namely : - 1. What "is the meaning of the word "Subject matter" appearing in cl, (d) of section (I) of Section 190 of the cede of Civil Procedure?

(2.) WHETHER it is permissible for the appellant to change the value of the subject matter of the suit with a view to bring the appeal within the score of cl. (d) of sub -section of Section 100 C. P. C. The learned Chief Justice was of the opinion that the aforesaid questions were of sufficient importance and were likely to arise in a number of appeals and, therefore, these questions required consideration by a larger bench. The case was accordingly placed before a Division Bench consisting of Honble Dr. Anand and G. M. Mir JJs. When the matter came to be heard by the Division Bench, the counsel for the appellant sought to reply upon a decision of a Division Bench of this court Gian Chand Versus Krishen Singh and ors, reported in 1974 JKIR, 245. In that case the precise question decided was regarding the interpretation of cl. (d) of sub -section (1) of Section 100 C.P.C. The Division Bench observed that it was the real or market value of the property involved in the suit which represented the value of the subject matter of suit and not the value given in the plaint adding that it was permissible for the plaintiff or the defendant as the case may be to change the valuation of the subject matter at the stage of the second appeal. Before the Division Perch seized of the present appeal, the soundness of the proposition of law as enunciated in Gian Chand Versus Krishan Singh (supra) was doubted. The Division Bench was of the opinion that the decision required reconsideration in as much as the ratio of the decision was based on the judgment of the Supreme Court reported as A. I. R. 1964 Sc 164, which had proceeded to consider the expression as used in Art 133 may not be applicable to the case in hand as the sole question decided by the SUPREME COURT was that for the purpose of the expression value of subject matter" occurring in Art. 133 of the Constitution of India, the real or market value was the test and not the valuation placed by the plaintiff on the plaint. The consideration for grant of certificate under Art, 133 of the Constitution is entirely different than the consideration relevant for the purpose of section 100 (1) (d) C. P. C. Legislature enacted Section 100 (e) (d) with a purpose that right to file second appeal against the judgment of revesal was directed to lie only if the value of the subject matter exceeded Rs. 100/ - The learned judges observed that it was not permissible, to a party to change the value of the subject matter at the stage of the second appeal as the very purpose for which the restriction of Rs - 100/ - v »as imposed in the aforesaid clause would be defeated. The learned Judges of the Division Bench were of the opinion that the points raised were, indeed of great importance and debatable. They accordingly referred the case to the Honble Chief Justice for constituting a Full Bench in order to decide the questions. This is how the case has come up before us. 2. We have heard the learned counsel for the parties at great, length.

(3.) IN substance the argument of the appellant is that the value of the subject matter as envisaged by section l00 (i) (d) C. P. C. is the real and market value of the subject matter of dispute and not its national or court fee value as fixed by the plaintiff in his plaint, Where, therefore, in a case the real or market value of the property in dispute exceeds Rs. 100/ - but in the plaint the valuation for purpose of court fee and jurisdiction is shown less than its real value, the plaintiff or the defendant will not be precluded from showing the real value of the subject matter of suit in order to attract the provisions of section 100 (1) (d) C. P. C. It is submitted that in cases in which the suit involves some claim or question in respect of the property in dispute valuing above Rs, 100/ - and which represents the real or the market value of the property and the plaintiff is required under law to value his suit according to the real or the market value of the property, then he cannot seek any change in the valuation at the stage of the second appeal as he would be bound by the value fixed by him in the plaint But where in a suit the real or market value of the property in dispute exceeds Rs. 100/ - and the plaintiff has valued the subject matter according to the Court Fees Act, which only represents the court fee value and not the real value, in that case, there is nothing to preclude the plaintiff from showing at the stage of the second appeal the real or the market value of the subject matter of the suit so as to make applicable the provisions of Section 100(1)(d)C. P. C. Reliance is placed upon decision of the Supreme Court reported as AIR 1954 S. C. 164. A Division Bench decision of this court Gian Chand Versus Krishen Singh and ors, and same other decisions reported as 1974 JKLR 245. A. I. R. 1959 Madras, 739, A. I. R, 1961 Madras, 551 (F. B) and A. I. R. 1966 Orissa, 89.