AHMEDBHAI KADUBHAI Vs. BADRUDDIN

JUDGEMENT

(1.) The short point that arises for decision in this civil revision application is this. When an administration suit is filed and valued for the purpose of court-fees at Rs. 130 but has been by mistake valued at Rs. 5,500 for the purpose of jurisdiction, and a decree has been passed for Rs. 25,000 odd, does the appeal from such a decree lie to the District Court or to the High Court ? The facts leading to the filing of this application are somewhat complicated, but it is necessary to refer to them, as there have been decisions of this very Court at some stage of the proceedings to which I shall have to refer in deciding the point that arises for decision in this case.

(2.) One Kadubhai Gulabbhai died on February 10, 1894, leaving behind him his widow Ilahibegum, his son Dr. Ahmed and his two daughters Amirbibi and Fejbibi. Fejbibi was married to one Chandmia from whom she had a son named Ahmedmiya. Kadubhai Gulabbhai left some immoveable property, and in the year 1894 his widow Ilahibegum filed a suit, No. 38 of 1894, claiming her share in the property according to the Mahomedan law. The claim was compromised for Rs. 108. Fejbibi died in the year 1924. In 1925 Amirbegum filed a suit, No. 1300 of 1925, for administration of her father's share in the First Class Court at Ahrnedabad. The claim was valued at Rs. 130 for the purpose of court-fees and at Rs. 5,500 for the purpose of jurisdiction. The suit was filed against Dr. Ahmed and Chandmia. Dr. Ahmed contended that the claim had been satisfied on payment of Rs. 2,000 to the two sisters, and further alleged that in any case the claim was barred by limitation. The trial Court upheld this defence and dismissed the suit. Against that order an appeal was filed by Amirbibi in the District Court, being Appeal No. 318 of 1927, challenging the view taken by the lower Court both as regards satisfaction and the bar of limitation. It was further contended that the District Court had no jurisdiction to hear the appeal, but this view was also rejected by the District Judge who proceeded to hear the appeal on merits. On August 11, 1928, the District Court held that the claim of the plaintiff had not be satisfied and that the suit was not barred by limitation. Accordingly the decree of the trial Court was set aside and the suit was sent down for trial on other issues. Against that decree of the District Court Dr. Ahmed filed an appeal to the High Court being Appeal No. 52 of 1929. In this appeal he contended that the District Court had no jurisdiction to hear the appeal, that the claim of the plaintiff was satisfied and that in any case the claim was barred by limitation. On September 12, 1930, the High Court upheld the decision of the District Court on all the points and dismissed the appeal. Thereupon the matter went back to the trial Court for decision on the remaining points at issue. While the suit was pending before the trial Court, the plaintiff and Dr. Ahmed arrived at a compromise, and on September 15, 1931, a purshis was filed in the Court to the effect that the claim of the plaintiff had been satisfied by the payment of Rs. 2,500. Chandmiya died on September 30, 1931, and his son Ahmedmiya applied to be brought on record as the legal representative of his father Chandmiya. On November 5, 1931, the compromise between the plaintiff and Dr. Ahmed was ordered to be recorded, and on April 20, .1932, the Court directed that Ahmedmiya's name should be transposed as plaintiff. The revision application filed in this, Court against the order of transposing Ahmed's name as plaintiff, was rejected. Thereafter Ahmed assigned his right, title and interest in favour of one Badruddin Ziauddin, and on November 7, 1933, the Court substituted Badruddin's name as the plaintiff in the suit. Ultimately an account was taken and eventually the learned trial Judge passed a decree in favour of the plaintiff for, a sum of Rs. 25,493-14-6. Against this decree Dr. Ahmed filed an appeal in the District Court of Ahmedabad being Appeal No. 241 of 1941. After the appeal had been heard for some days it was contended before the learned District Judge that the appeal should properly have been filed not in the District Court but in the High Court, inasmuch as the decree in the administration suit had been passed for a sum of over Rs. 25,000. The learned District Judge upheld this objection and being of opinion that the appeal should have been filed in the High Court returned it for presentation to this Court, It is against that order that this application has been filed in revision.

(3.) Under Section 8 of the Bombay Civil .Courts Act of 1869 " except as provided in Sections 16, 17 and 26, the District Court shall be the Court of Appeal from all decrees and orders passed by the subordinate Courts from which an appeal lies under any law for the time being in force." Under this section therefore an appeal from a decision of the First Class Subordinate Judge would lie to the District Court unless the case falls under Section 261 of the Bombay Civil Courts Act. Under Section 26, as it now stands, in all suits decided by a Subordinate Judge of which the amount or value of the subject-matter (exceeds five thousand rupees, the appeal from his decision shall be direct to the High Court. Therefore the real point to be decided in this application is whether in the suit which the learned First Class Subordinate Judge of Ahmedabad decided the value of the subject-matter exceeded Rs. 5,000 or not. Mr. J. C. Shah for the applicant referred me to the case of Shet Kavasji V/s. Dinshaji (1897) I.L.R. 22 Bom. 963, which was a case similar to the one with which I am dealing. In that case an administration suit was filed in the Court of the Second Class Subordinate Judge valuing the relief claimed at Rs, 130. The Subordinate Judge found that the property in suit was worth over a lakh of rupees, that the liabilities came) to Rs. 5,729, and that the defendant was indebted to the estate in the sum of Rs. 15,199. Hel drew up a preliminary decree, directing (inter alia) that the defendant should pay this amount into Court within two weeks. Against this order the defendant appealed to the District Court. The District Judge returned the appeal for presentation to the High Court, on the ground that the subject-matter exceeded Rs. 5,000. It was held by the High Court reversing the order of the District Judge that the appeal lay to the District Court. But that case does not really support the contention taken up by Mr. J. C. Shah. Section 26 as it then stood provided that " in all suits decided by a Subordinate Judge of the first class in the exercise of his ordinary and special original jurisdiction of which the amount or value of the subject-matter exceeds five thousand rupees, the appeal from his decision shall be direct to the High Court." As that suit was decided by a Second Class Subordinate Judge, a 26 of the Bombay Civil Courts Act did not come into play, and therefore under Section 8 of the Bombay Civil Courts Act the appeal obviously lay to the District Court. It was on that point that the case was decided. Now, by the amendment effected in the year 1930 the words " of the first class in the exercise of his ordinary and special original jurisdiction " occurring in Section 26 of the Bombay Civil Courts Act have been repealed. The result therefore is that the forum of appeal depends not upon the class of the Subordinate Judge who tries the; suit, but solely on whether in the suit tried by him the amount or the value of the subject-matter exceeds Rs. 5,000 or not. If it exceeds Rs. 5,000, then the appeal lies to the High Court. If it does not, the appeal lies to the District Court. The learned District Judge was therefore in my opinion right in distinguishing the case of Shet Kavasji V/s. Dinshaji on the ground that it was decided prior to the amendment of Section 26 of the Bombay Civil Courts Act.