This judgement ranked 1 in the hitlist.
Kiran Singh v. Chaman Paswan, (SC) : Law Finder Doc Id # 113300
SUPREME COURT OF INDIA
(Large Bench)
Before :- B.K. Mukherjea, Vivian Bose, Ghulam Hasan and T.L. Venkatarama Ayyar, JJ.
Civil Appeal No. 14 of 1953. D/d. 14.4.1954.
Kiran Singh and others - Appellants
Versus
Chaman Paswan and others - Respondents
For the Appellants :- S.C. Issacs, Senior Advocate, Geneshwar Prasad and R.C. Prasad,
Advocates.
For the Respondents Nos. 1-9 :- B.K. Saran and M.M. Sinha, Advocates.
A. Civil Procedure Code, 1908, Sections 9 and 21 - Decree passed by a court
without jurisdiction is a nullity - A defect of jurisdiction whether it is pecuniary
or territorial, or whether it is in respect of the subject-matter of the action,
strikes at the very authority of the Court to pass any decree, and such a defect
cannot be cured even by consent of parties.
[Para 6]
B. Suits Valuation Act, 1887, Section 11 - Civil Procedure Code, 1908, Sections
21 and 99 - Principle underlying - No decree to be reversed or modified for
error or irregularity not affecting merits or jurisdiction - When a case had been
tried by a Court on the merits and judgment rendered - It should not be liable
to be reversed purely on technical grounds, unless it had resulted in failure of
justice - The policy of the legislature has been to treat objections to jurisdiction
both territorial and pecuniary as technical and not open to consideration by an
appellate Court, unless there has been a prejudice on the merits.
[Para 7]
C. Suits Valuation Act, 1887, Section 11 - Prejudice - Change in the forum of
appeal - The prejudice contemplated by the Section is something different from
the fact of the appeal having been heard in a forum which would not have been
competent to hear it on a correct valuation of the suit as ultimately determined.
[Para 12]
D. Suits Valuation Act, 1887, Section 11 - Prejudice - Mere errors in findings of
fact cannot be held to be prejudice meaning of Section 11 - Appellate Court has
no power under Section 11, S.V. Act, to rehear the appeal and to consider
whether the findings of fact recorded by the lower Court are correct.
[Para 14]
E. Suits Valuation Act, 1887, Section 11 - Jurisdiction of appellate Court - Is an
equitable one to be exercised when there has been erroneous assumption of
jurisdiction by a Subordinate Court, of a result of over-valuation or under-
valuation and a consequential failure of justice - Whether there has been
prejudice or not, is accordingly a matter to be determined on the facts of each
case - The party who has resorted to a forum of his own choice on his own
valuation cannot himself be heard to complain of any prejudice - Held, on facts,
no prejudice was caused to appellant by their appeal having been heard by the
District Court and that there were no grounds for interference under Section 11
of the Act.
[Para 17]
F. Suits Valuation Act, 1887, Section 11 - Prejudice can be a ground for relief
only when it is due to the action of another party and not when it results from
one's own act - Courts cannot recognise that as prejudice which flows from the
action of the very party who complains about it.
[Para 17]
Cases referred :
Ramdeo Singh v. Raj Narian Singh, AIR 1949 Patna 278.
Rajlakashmi Dasee v. Kalyayani Dasee, 38 Cal 639.
Shidappa Venkatrao v. Rachappa Subrao, 36 Bom 628.
Rachappa Subrao v. Shidappa Venkatrao, AIR 1918 Privy Council 188.
Kelu Achan v. Cheriya Parvathi Nethiar, AIR 1924 Madras 6 (FB).
Mool Chand v. Ram Kishan, AIR 1949 Patna 278 (FB).
JUDGMENT
T.L. Venkatarama Ayyar, J. - This appeal raises a question on the construction of
Section 11 of the Suits Valuation Act. The appellants instituted the suit out of which this
appeal arises, in the Court of the Subordinate Judge, Monghyr, for recovery of
possession of 12 acres 51 cents of land situated in mauza Bardth of which defendants 12
and 13. forming the second party are the proprietors. The allegations in the plaint are
that on 12-4-1943 the plaintiffs were admitted by the second party as occupancy
tenants on payment of a sum of Rs. 1,950 as salami and put into possession of the
lands, and that thereafter, the first party consisting of defendants 1 to 11 trespassed on
them and carried away the crops. The suit was accordingly laid for ejecting defendants 1
to 11 and for mesne profits, past and future, and it was valued at Rs. 2, 950, made up of
Rs. 1,950 being the value of the relief for possession and Rs. 1,000, being the part
mesne profits claimed.
2. Defendants 1 to 11 contacted the suit. They pleaded that they had been in possession
of the Lands as tenants on 'batal' system, showing the produce with the landlord, from
fasli 1336 and had acquired occupancy rights in the tenements, that the party had the
right to settle them on the plaintiff, and that the latter acquired no rights under the
settlement dated 12-4-1943. Defendants 12 and 13 remained 'ex parte'.
3. The Subordinate Judge held, relying on certain receipts marked as Exhibits A to A-114
which were in the handwriting of the patwaris of the second party and which ranged over
the period fasli fall 1256 to 1347, that defendants 1 to 11 had been in possession for
over 12 years as convicting tenants and had acquired occupancy rights and that the
settlement dated 12-4- 1943 conferred no rights on the plaintiffs. He accordingly
dismissed the suit. The plaintiffs preferred an appeal against this decision to the Court of
the District Judge, Monghyr, who agreed with the trial Court that the receipts, Exhibits A
to A- 114 were genuine and that defendants 1 to 11 had acquired occupancy rights and
accordingly dismissed the appeal.
4. The plaintiffs took up the matter in second appeal to the High Court, Patna, S. A No.
1152 of 1946 and there, for the first time, an objection was taken by the Stamp
Reporter to the valuation in the plaint and after enquiry, the Court determined that the
correct valuation of the suit was Rs. 9,980. The plaintiffs paid the additional court-fees
required of them, and then raised the contention that on the revised valuation, the
appeal from the decree of the Subordinate Judge would be not to the District Court but
to the High Court and that accordingly S.A. No 1152 of 1946 should be heard as a first
appeal, ignoring the judgment of the District Court. The learned Judges held, following
the decision of a Full Bench of that Court in - 'Ramdeo Singh v. Raj Narian Singh',
AIR 1949 Patna 278 , that the appeal to the District Court was competent and that its
decision could be reversed only if the appellants could establish prejudice on the merits
and folding that on a consideration of the evidence no such prejudice had been shown,
they dismissed the second appeal. The matter now cones before us on special leave.
5. It will be noticed that the proper court to try the present action would be the
Subordinate Court, Monghyr, whether the valuation of the suit was Rs. 2,950 as given in
the plaint, or Rs. 9,880 as determined in the forum to which the appeal from its
judgment would lie, whether the one valuation on the other is to be accepted as the
deciding factor. On the plaint valuation the appeal would be to the District Court; on the
valuation as determined by the High Court, it is that court that would be competent to
entertain the appeal. The contention of the appellants is that as on the valuation of the
suit as ultimately determined, the District Court was not competent to entertain the
appeal, the decree and judgment passed by that Court must be treated as a nullity, that
the High Court should have accordingly heard S. A No. 1152 of 1946 not as a second
appeal with its limitations under Section 100, C.P.C. but as a first appeal against the
judgment and decree of the Subordinate Judge, Monghyr, and that the appellants were
entitled to a full hearing as well on questions of fact as of law.
And alternatively, it is contended that even if the decree and judgement of the District
Court on appeal are not to be treated as a nullity and the matter is to be dealt with
under Section 11 of the Suits Valuation Act, the appellants had suffered "prejudice"
within the meaning of that Section, in that their appeal against the judgement of the
subordinate judge was heard not by the High Court but by a Court of inferior jurisdiction,
viz. the District Court of Monghyr and that its decree was therefore liable to be set aside,
and the appeal heard by the High Court on the merits, as a first appeal.
6. The answer to these contentions must depend on what the position in law is when a
Court entertain a suit or an appeal over which it has no jurisdiction and what the effect
of Section 11 of the Suit Valuation Act is on that position. It is a fundamental principle
well-established that a decree passed by a Court without jurisdiction is a nullity and that
its invalidity could be set up whenever and wherever it is sought to be enforced or relied
upon, even at the stage of execution and even in collateral proceedings. A defect of
jurisdiction, whether it is pecuniary or territorial or whether, it is in respect of the
subject-matter of the action, strikes at the very authority of the Court to pose any
decree, and such a defect cannot be cured even by consent of parties. If the question
now under consideration fell to be determined only on the application of general
principles governing the matter, there can be no doubt that the District, Court of
Monghyr was coram non judice, and that its judgment and decree would be nullities. The
question is what is the effect of Section 11 of the Suits Valuation Act on this position.
7. Section 11 enacts that notwithstanding anything in Section 578 of the Civil Procedure
Code an objection that a Court which had no jurisdiction over a suit or appeal had
exercised it by reason of over-valuator or under-valuation, should not be entertained by
an appellate court, except as provided in the Section. Then follow provisions as to when
the objections could be entertained, and how they are to be dealt with. The drafting of
the Section has come in - and deservedly-for considerable criticism; but amidst much
that is obscure and confused, there is one principle which stands out clear and
conspicuous. It is that a decree passed by a court, which would have had no jurisdiction
to hear a suit or appeal but for over-valuation or under-valuation, is not to be treated as,
what it would be but for the Section, null and void, and that an objection to jurisdiction
based on over-valuation or under-valuation, should be dealt with under that Section and
not otherwise.
The reference to Section 578, now Section 99, C.P.C., in the opening words of the
Section is significant. That Section, while providing that no decree shall be reversed or
vaired in appeal on account of the defects mentioned therein when they do not affect the
merits of the case, excepts from its operation defects of jurisdiction. Section 99
therefore gives no protection to decrees passed on merits, when the Courts which
passed them locked jurisdiction as a result of over-valuation or under-valuation. It is
with a view to avoid this result that Section 11 was enacted. It provides that objections
to the jurisdiction of a Court based on over-valuation or under-valuation shall not be
entertained by an appellants Court except in the manner and to the extent mentioned in
the Section. It is a self-contained provision complete in itself, and no objection to
jurisdiction based on over-valuation or under-valuation can be raised otherwise than in
accordance with it.
With reference to objections relating to territorial jurisdiction, Section 21 of the Civil
Procedure Code enacts that no objection to the place of suing should be allowed by an
appellate or revisional court, unless there was a consequent failure of justice. It is the
same principle that has been adopted in Section 11 of the Suits Valuation Act with
reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99, C. P. C.
and Section 11 of the Suits Valuation Act is the same namely, that when a case had
been tried by a Court on the merits and judgement rendered, it should not be liable to
be reversed purely on technical grounds, unless it had resulted in failure of justice and
the policy of the legislature has been to treat objections to jurisdiction both territorial
and pecuniary as technical and not open to consideration by an appellate court, unless
there has been a prejudice on the merits. The contention of the appellants, therefore,
that the decree and judgment of the District Court, Monghyr, should be treated as a
nullity cannot be sustained under Section 11 of the Suits Valuation Act.
8. On behalf of the appellants - 'Rajlakashmi Dasee v. Kalyayani Dasee', 38 Cal 639
and - Shidappa Venkatrao v. Rachappa Subrao', 36 Bom 628 which was affirmed
by the Privy council in - Rachappa Subrao v. Shidappa Venkatrao', AIR 1918 Privy
Council 188 , were relied on as supporting the contention that if the appellate court
would have had no jurisdiction to entertain the appeal if the suit had been correctly
valued, a decree passed by it must be treated as nullity. In - Rajlakshmi Dasee v.
Kalyayani Dasee, the facts were that the Kalyayani Dasee instituted a suit to recover the
estate of her husband Jogendra, in the Court of the Subordinate Judge, Alipore, valuing
the claim at Rs. 2,100, whereas the estate was worth more than lakh of rupees. The suit
was decreed, and the defendants preferred an appeal to the District Courts, which was
the proper Court to entertain the appeal on the plaint valuation. There, the parties
compromised the matter, and a consent decree was passed recognising the title of the
defendants to portions of the estate. Then, Rajlakshmi Dasee the daughter of Jogohe,
filed a suit for a declaration that the consent decree to which her mother was a party
was not binding on the reversioners. One of the grounds urged by her was that the suit
of Kalyayani was deliberately undervalued, that if it had been correctly valued, it was the
High Court that would have had the competence to entertain the appeal, and that the
consent decree passed by the District Judge was accordingly a nullity.
In agreeing withy this contention, the High Court observed that a decree passed by
Court which had no jurisdiction was a nullity and that even consent of the parties could
not cure the defect. In that case, the question was raised by a person who was not a
party to the action and in a collateral proceeding, and the Court observed :
"We are not now called upon to consider what the effect of such lack of
jurisdiction would be upon the decree, in so far as the parties thereto were
concerned. It is manifest that so far as a stranger to the decree is
concerned, who is interested in the property affected by the decree he can
obviously ask for a declaration that the decree is a nuility, because made
by a Court which had no jurisdiction over the subject-matter of the
litigation".
On the facts, the question of the effect of Section 11 of the Suits Valuation Act did not
arise for determination, and was not considered.
9. In - '36 Bom 628 (c)', the plaintiffs instituted a suit in the Court of the Subordinate
Judge, First class, for a declaration that he was the adopted son of one Venkatrao and
for an injunction restraining the defendant from interfering with his posscession of a
house. The plaint valued the declaration at Rs. 130 and the injunction at Rs. 5, and the
suit was valued for purposes of pleader's fee at Rs. 69,016-9-0 being the value of the
estate. The suit was decreed by the Subordinate Judge and against his decree, the
defendant preferred an appeal to the District Court, which allowed the appeal and
dismissed the suit. The plaintiff took up the matter in second appeal to the High Court,
and contended that on the valuation in the plaint the appeal against the decree of the
Subordinate Judge lay to the High Court, and that the appeal to the District Court was
incompetent. This contention was upheld, and the decree of the District Judge was set
aside. It will be seen that the point in dispute was whether on the allegations in the
plaint the value for purposes of jurisdiction was Rs. 135 or Rs. 69,016-9-0 and the
decision was that it was the latter. No question of over-valuation or under-valuation
arose, and no decision on the scope of Section 11 of the Suits Valuation Act was given.
10. As a result of its decision, the High Court came to entertain the matter as a first
appeal and affirmed the decree of the Subordinate Judge. The defendant then took up
the matter in appeal to the Privy Council in - 'AIR 1918 Privy Council 188 , and there, his
contention was that, in fact, on its true valuation the suit was triable by the Court of the
subordinate Judge of the Second class, and that the District Court was the property court
to entertain the appeal. The Privy Council held that this objection which was "the most
technical of technicalities" was not taken in the Court of First Instance, and that the
Court would not be justified "in assisting an objection of that type", and that it was also
untenable. Before concluding, it observed :
"The Court Fees Act was passed not to arm a litigant with a weapon of
technicality against his opponent but to secure revenue for the benefit of
the State ... The defendant in this suit seeks to utilise the provisions of the
Act not to safeguard the interests of the State", but to obstruct the
plaintiff, he does not content that the Court wrongly decided to the
detriment of the revenue but that it dealt with the case without
jurisdiction. In the circumstances this plea, advanced for the first time at
the hearing of the appeal in the District Court is misconceived and was
rightly rejected by the High Court".
Far from supporting the contention of the appellants that the decree passed in appeal by
the District Court of Monghyr should be regarded as a nullity, these observations show
that an objection of the kind now put forward being highly technical in character should
not be entertained if not raised in the Court of First Instance. We are therefore of opinion
that the decree and judgement of the District Court, Monghyr, cannot be regarded as a
nullity.
11. It is next contended that even treating the matter as governed by Section 11 of the
Suits Valuation Act, there was prejudice to the appellants, in that by reason of the
under-valuation, their appeal was heard by a Court of inferior jurisdiction, while they
were entitled to a hearing by the High Court on the facts. It was argued that the right of
appeal was a valuable one, and that deprivation of that right of the appellants to appeal
to the High Court on facts must therefore be held, without more, to constitute prejudice.
This argument proceeds on a misconception. The right of appeal is no doubt a
substantive right and its deprivation is a serious prejudice; but the appellants have not
been deprived of the right of appeal against the judgement of the Subordinate Court.
The law does provide an appeal against that judgement to the District Court, and the
plaintiffs have exercise that right. Indeed, the under-valuation has enlarged the
appellants' right of appeal, because while they would have had only a right of one appeal
and that to the High Court if the suit ha been correctly valued, by reason of the under-
valuation they obtained right to two appeals one to the District Court and another to the
High Court. The complaint of the appellants really is not that they had been deprived of
a right of appeal against the judgment of the Subordinate Court which they have not
been, but that an appeal on the facts against that judgment was heard by the District
Court and not by the High Court. This objection therefore amounts to this that a change
in the forum of appeal is by itself a matter of prejudice for the purpose of Section 11 of
the Suit Valuation Act.
12. The question, therefore, is, can decree be passed on appeal by a Court which had
jurisdiction to entertain it only by reason of under-valuation, be set aside on the ground
that on a true valuation that Court was not competent to entertain the appeal ? Three
High Courts have considered the matter in Full Benches, and have come to the
conclusion that mere change of forum is not a prejudice within the meaning of Section
11 of the Suits Valuation Act. Vide - Kelu Achan v. Cheriya Parvathi Nethiar', AIR
1924 Madras 6 (FB) : 'Mool Chand v. Ram Kishan', AIR 1949 Patna 278 (FB)'. In
our judgment the opinion expressed in these decisions is correct.
Indeed, it is impossible on the language of the Section to come to different conclusion. If
the fact of an appeal being heard by a Subordinate Court of District Court where the
appeal would have lain to the High Court if the correct valuation had been given, is itself
a matter of prejudice, then the decree passed by the Sub-ordinate Court or the District
Court must, without more, be liable to be set aside, and the words "unless the over-
valuation or under-valuation thereof has prejudicially the disposal of the suit or appeal
on its merits" would become wholly useless. These words clearly show that the decrees
passed in such cases are liable to be interfered with in an appellate Court not in all cases
and as a mother of course, but only if prejudice such as is mentioned in the Section
results. And the prejudice envisaged by that Section therefore must be something other
than the appeal being heard in a different forum.
A contrary conclusion will lead to the surprising result that the Section was enacted with
the object of curing defects of jurisdiction arising by reason of overvaluation or under-
valuation, but that, in fact this object has not been achieved. We are therefore clearly of
opinion that the prejudice contemplated by the Section is something different from the
fact of the appeal having been regard in a forum which would not have been competent
to hear it on a correct valuation of the suit as ultimately determined.
13. It is next argued that in the view that the decree of the lower appellate court is liable
to be severed only on proof of prejudice on the merits, the second appellate Court must,
for the purpose of ascertaining whether there was prejudice, hear the appeal fully on the
facts, and that, in effect, it should be heard as a first appeal. Reliance in placed in
support of this contention on the observations of two of the learned Judges in - 'AIR
1949 Patna 278 (FB) . There, Sinha, J. observed that though the second appeal could
not be treated as a first appeal, prejudice could be established by going into the merits
of the decision both on questions of fact and of law, and that that could be done under
Section 103, Civil Procedure Code Meredith, J. agreed that for determining whether there
was prejudice or not, there must be an enquiry on the merits of the decisions on
questions of fact, but he was of opinion that that could be done under Section 11 of the
Suits Valuation Act itself. Das J., however, declined to express any opinion on this point,
as it did not arise at that stage. The complaint of the appellants is that the learned
Judges who heard the second appeal, though they, purported to follow the decision in -
AIR 1949 Patna 278 (FB) did not, in fact, do so and that there was no consideration of
the evidence bearing on the question of fact on which the parties were in dispute.
14. That brings as to the question as to what is meant by "prejudice" in Section 11 of
the Suits Valuation Act, Does it include errors in findings on questions of fact in issue
between the parties ? If it does, then it will be obligatory on the Court bearing the
second appeal to examine the evidence in full and decide whether the conclusions
reached by the lower appellate Court are right. If it agrees with those findings, then it
will affirm the judgment, if it does not, it will reverse it. That means that the Court of
second appeal is virtually in the position of a court of first appeal.
The language of Section 11 of the Suits Valuation Act is plainly against such a view. It
provides that over valuation or under valuation must have prejudicially affected the
disposal of the case on the merits. The prejudice on the merits must be directly
attributable to over-valuation or under-valuation and an error in a finding of fact reached
on a consideration of the evidence cannot possibly be said to have been, caused by over-
valuation or under-valuation. Mere errors in the conclusions on the points for
determination would therefore be clearly precluded by the language of the Section.
It must further be noted that there is no provision in the Civil Procedure Code, which
authorises a Court of second appeal to go into questions of fact on which the lower
appellant Court has recorded findings and to reverse them. Section 103 was relied on -
AIR 1949 Patna 278 (FB) as conferring such a power. But that Section applies only when
the lower appellate Court has failed to record a finding on any issue, or when there has
been irregularities or defects such as fall under Section 100, Civil Procedure Code. If
these conditions exist, the judgment under appeal is liable to be set aside in the exercise
of the normal powers of a Court of second appeal without resort to Section 11 of the
Suits Valuation Act. If they do not exist, there is no other power under the Civil
Procedure Code authorising the Court of second appeal to set aside findings of fact and
to rehear the appeal itself on those questions.
We must accordingly hold that an appellate Court has no power under Section 11 of the
Suits Valuation Act to consider whether the findings of fact recorded by the lower
appellate Court are correct, and that error in those findings cannot be held to be
prejudice within the meaning of that Section.
15. So far, the definition of "prejudice" has been negative in terms - that it cannot be
mere change of forum or mere error in the decision on the merits. What then is
positively prejudice for the purpose of Section 11 ? That is a question which has agitated
Courts in India ever since the enactment of the Section. It has been suggested that if
there was no proper hearing of the suit or appeal and that had resulted in injustice, that
would be prejudice within Section 11 of the Suits Valuation Act. Another instance of
prejudice is when a suit which ought to have been filed as an original suit is filed as a
result of under-valuation on the small cause side. The procedure for trial of suits in the
Small Cause Court is summary; there are no provisions for discovery or inspection;
evidence is not recorded in extenso', and there is no right of appeal against its decision.
The defendant thus loses the benefit of an elaborate procedure and a right of appeal
which he would have had, if the suit had been filed on the original side. It can be said in
such a case that the disposal of the suit by the Court of Small Causes has prejudicially
affected the merits of the case.
No purpose, however, is served by attempting to enumerate exhaustively all possible
cases of prejudice which might come under Section 11 of the Suits Valuation Act. The
jurisdiction that is conferred on appellate Courts under that Section is an equitable one,
to be exercised when there has been an erronuess assumption of jurisdiction by a
Subordinate Court as a result of over-valuation or under-valuation and a consequential
failure of justice. It is neither possible not even desirable define such a jurisdiction
closely, or confine it within stated bounds. It can only be predicated of it that it is in the
nature of a revisonal jurisdiction to be exercised with caution and for the ends of justice,
whenever the, facts and situation calls for it. Whether there has been prejudice or not, is
accordingly a matter to be determined on the facts of each case.
16. We have not to see whether the appellant have suffered any prejudice by season of
the under valuation. They were the plaintiffs in the action. They valued the suit at Rs.
2,950. The defendants raised no objection to the jurisdiction of the Court at any time.
When the plaintiffs lost the suit after an elaborate trial it is they who appealed to the
District Court as they were bound to on their valuation. Even there, the defendants took
no objection to the jurisdiction of the District Court to hear the appeal. When the
decision went on the merits against the plaintiffs, they preferred S.A. No. 1152 of 1946
to the High Court of Patna, and if the Stamp Reporter had not raised the objection to the
valuation and to the Court-fee paid the plaintiffs would not have challenged the
jurisdiction of the District Court to hear the appeal. It would be an unfortunate state of
law if the plaintiffs who initiated proceedings in a Court of their own choice could
subsequently turn round and question its jurisdiction on the ground of an error in
valuation which was their own.
If the law were that the decree of a Court which would have had no jurisdiction over the
suit or appeal but for the over-valuation or under-valuation, should be treated as a
nullity, then of course, they would not be stopped from setting up want of jurisdiction in
the Court by the fact of their having themselves invoked it. That, however, is not the
position under Section 11 of the Suits Valuation Act. Why then should the plaintiffs be
allowed to resile from the position taken up by them to the prejudice of their opponents,
who had acquiesced therein ?
17. There is considerable authority in the Indian Courts that clauses (a) and (b) of
Section 11 of the Suits Valuation Act should be read conjunctively, notwithstanding the
use of the word "or". If that is the correct interpretation, the plaintiffs would be
precluded from raising the objection about jurisdiction in an appellate Court. But even if
the two provisions are to be construed disjunctively, and the parties held entitled under
Section 11(1)(b) to raise the objection for the first time in the appellate Court, even
then, the requirement as to prejudice has to be satisfied, and the party who has resorted
to a forum of his own choice on his own valuation cannot himself be heard to complain of
any prejudice. Prejudice can be a ground for relief only when it is due to the action of
another party and not when it results from one's own act. Courts cannot recognise that
as prejudice which flows from the action of the very party who complains about it.
Even apart from this, we are satisfied that no prejudice was caused to the appellants by
their appeal having been heard by the District Court. There was a fair and full hearing of
the appeal by that Court it gave its decision on the merits on a consideration of the
entire evidence in the case, and no injustice is shown to have resulted in its disposal of
the matter. The decision of the learned Judges that there were no grounds for
interference under Section 11 of the Suits Valuation Act is correct.
18. In the result, the appeal fails and is dismissed with costs.
Appeal dismissed.
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Subedar Major Sadhu Singh v. Chanda Singh, (Punjab) : Law Finder Doc Id # 59854
PUNJAB HIGH COURT
Before :- Bishan Narain, J.
Regular Second Appeal No. 216 of 1956. D/d. 16.11.1956
Subedar Major Sadhu Singh - (Defendant) - Appellant
Versus
Chanda Singh and others - (Plaintiffs) - Respondents
For the Appellant :- Mr. H.L. Sarin, Advocate.
For the Respondent :- Mr. F.C. Mital, Advocate.
A. Limitation Act, 1908, Article 14 - Applicability - Order passed without
jurisdiction or in excess of authority - A nullity - Need not be set aside - Article
14 of the Limitation Act has no application.
B. Punjab Restitution of Mortgaged Lands Act, 1938, Section 12 - Setting aside
of order - Power of Civil Court - Held that when an order is passed by a
Collector under 1938 Act, the Civil Court cannot set aside that order unless it be
held that the order was without jurisdiction.
C. Punjab Restitution of Mortgaged Lands Act, 1938, Sections 2 and 7 -
Jurisdiction of Collector - Collector has no jurisdiction to extinguish a mortgage
effected after 8.6.1901.
Cases referred :-
1. Kaura v. Ram Chand, AIR 1925 Lahore 385.
2. Secretary of State v. Faredoon Jijabhai Divecha, AIR 1934 Bombay 434.
3. Prativadi Bhayankaram Thiruvenkatacharayulu v. Secretary of State for India in
Council, ILR 57 Madras 501.
JUDGMENT
Bishan Narain, J. - This second appeal has been filed by Subedar Major Sadhu Singh
against the decision of the Additional District Judge, Amritsar, dismissing his appeal and
affirming the judgment of the trial Court to the effect that the possession of the property
in dispute should be given to the plaintiffs.
The land in dispute at one time belonged to Jagat Singh father of Subedar Sadhu Singh.
On 27th June, 1895 he mortgaged this land with Dhanna Singh for Rs. 900/-. Then on
16th November, 1900 he mortgaged it again with Dhanna Singh for Rs. 1600/-. The
third mortgage was effected by him on 11th December, 1905, in favour of Dhanna Singh
for Rs. 2,000/- and finally the fourth mortgage was effected on 3rd June, 1914 for Rs.
3,850/-. This time the mortgage was by Jagat Singh in favour of Pal Singh, Tehl Singh
and Mahl Singh sons of Dhanna Singh. On 6th August, 1943 Sadhu Singh applied for
restitution of the mortgaged land in the Court of the Special Collector, Lahore, under the
provisions of the Punjab Restitution of Mortgaged Lands Act, 1938 (Punjab Act No. IV of
1938). Apparently this application was contested on behalf of the mortgagees and on 6th
March, 1945, the Collector ordered redemption of the mortgages on payment of Rs. 77/-
odd. The mortgagees filed an appeal in the Court of the Commissioner at Lahore but its
fate is not known in view of the partition of the country during the pendency of that
appeal. The village in which the land in dispute is situate was a part of the Lahore
District but on partition it fell to the territory of India and is now a part of Tehsil Patti,
District Amritsar. Sadhu Singh then applied to the Assistant Collector, Amritsar for
possession and he took possession of the property on 21st May, 1950. Apparently the
mortgagees again filed an appeal against the Special Collector's order but it was
dismissed by the Financial Commissioner by his order dated 10th April, 1953. Thereupon
the mortgagees filed the present suit on 6th July, 1954, for possession of the mortgaged
land on the basis of the usufructuary mortgage dated 3rd June, 1914 out of which this
appeal has arisen. The plaintiffs alleged that they are entitled to possession of the land
under the said mortgage deed. The suit was contested on various grounds but it is not
necessary to refer to them in this appeal. The only two points that have been argued
before me on behalf of the defendant-appellant are that the suit is barred by time and
that in any case the order of the Special Collector ordering redemption of the mortgages
was within the jurisdiction of the Special Collector and that a civil suit is not maintainable
to contest that order. I shall first deal with the question of limitation. The contention of
the learned counsel for the appellant is that Article 14 of the Indian Limitation Act
applies to this case and as the suit was not filed within one year of the order of the
Special Collector dated 6th March, 1945, the present suit is barred by time. Mr. Sarin in
support of his argument has strongly relied on the decision of a Division Bench of this
Court reported in Kaura v. Ram Chand, AIR 1925 Lahore 385. In that judgment the
learned Judges were dealing with Punjab Act 2 of 1913 and it was laid down -
"When an order passed under a special Act is declared by that Act to be
conclusive, it cannot be ignored and no relief is open to the aggrieved party
unless that order be set aside."
It was further observed that an individual who takes advantage of a summary procedure
must suffer its disadvantages as well as enjoy its benefits. Accordingly it was held that a
mortgagor's right to redeem which would otherwise be within limitation is barred if the
action is brought later a year of the date of an order passed to the plaintiff's deteriment
by the Collector on an application under Punjab Act No. II of 1913, Their Lordships were
dealing with an Act in which it was laid down in section 12 that any party aggrieved by
art order under various sections of that Act may institute a suit to establish his rights in
respect of the mortgage, but, subject to the result of such suit, if any, the order shall be
conclusive. Under that Act it is, therefore, open to a party to challenge the order of the
be Special Collector by a suit filed in civil Court. Article 14 of the Indian Limitation Act
prescribes a limitation of one gear from the date of the order for a suit to set aside the
order made by an officer in official capacity. 'The present suit, however, relates to Act
No. IV of 1938. Section 12 of the 1938 Act lays down that no civil Court shall have
jurisdiction to entertain any claim to enforce any right under a mortgage declared
extinguished under this Act, or to question the validity of any proceedings under this Act.
Thus under the 1938 Act Civil Courts have no jurisdiction whatsoever to entertain a suit
challenging the decision of the Collector extinguishing the mortgage. This provision of
law is very different from section 12 of Act No. II of 1913. When an order is passed
under the 1938 Act then civil Court cannot set aside that order unless it be held that the
order was without any jurisdiction. The present case is precisely of that nature. The
mortgagees' claim is that the order passed by the Special Collector relating to the
present mortgage was without jurisdiction, When an order is passed without jurisdiction
or in excess of authority it is a nullity and need not be set aside. If the act or an order of
an officer is illegal or ultra vires it does not require to be set aside and Article 14 of the
Limitation Act has no application vide inter alia Secretary of State v. Faredoon
Jijabhai Divecha, AIR 1934 Bombay 434 and Prativadi Bhayankaram
Thiruvenkatacharayulu v. Secretary of State for India in Council, ILR 57 Madras
501. I am, therefore, of the opinion that Article 14 of the Indian Limitation Act, has no
application in this case. It is conceded that the suit, for possession under the 1914
mortgage independently of the order of redemption made by the Collector is within time.
Accordingly I reject, this contention of the learned counsel for the appellant.
It was then argued that the order of the Special Collector was made validly in the
exercise of jurisdiction vested in him and therefore this suit is not competent. Both the
lower Courts have held that 1914 mortgage is independent of the previous mortgages. If
this be so then the Special Collector would have no jurisdiction to extinguish it, in view
of section 7 read with Section 2 of the Punjab Restitution of Mortgaged Lands Act, 1938.
This is not disputed by the learned counsel the appellant. His contention is that the
finding given by the lower Courts is not warranted by the documents on the record. After
going through the various transactions given above the learned counsel pointed out on
the mutation relating to the mortgage of 1900 discloses that the transaction of that year
consisted of the previous mortgage of Rs. 900 and of the new mortgage for Rs. 700
bringing the total to Rs. 1600. It is clear to my mind from this mutation entry that the
1960 transaction was a mortgage in addition to the 1895 mortgage. Similarly the
documents P. 10 and P. 17 show that the 1905 mortgage was in addition to the previous
mortgages. The question however, still remains whether the 1914 mortgage was
independent of the previous mortgages or not. The original mortgage deed is not
forthcoming on this record. The lower Courts have held that this document is in
possession of the defendant who has not deliberately produced it in spite of the
application by the mortgagees asking him to do so. The lower appellate Court has drawn
a presumption against the defendant to the effect that if that mortgage deed had been
produced it would have shown that the 1914 mortgage is independent of the previous
mortgages. This is a finding of fact. The learned counsel took me through certain
documents to show that the original mortgage deed is not in possession of his client. But
considering the entire matter it is clear that the defendant got it back from the Special
Collector's Court. Sadhu Singh made an application (Ex. P. 6) on 13th June, 1950, to the
Collector, Amritsar, for return of the mortgage deed dated 27th June, 1895, and other
mortgages. Next day the necessary order was made by the Collector and the defendant
took possession of the document at pages 23-24 of the file (Ex. P. 4). The index Ex. P. 3
shows that on those pages was a document executed by Jagat Singh in favour of Pal
Singh. The only mortgage that was effected by Jagat Singh, father of Sadhu Singh, in
favour of Pal Singh, Tehal Singh and Mehal Singh was the mortgage of 1914 and the
previous mortgages had been executed in favour of Dhanna Singh alone. From this it is
clear that the defendant got possession of the original mortgage deed of 1914 and the
lower appellate Court was right in drawing a presumption against the appellant for not
producing that document in Court. Moreover the mutation relating to this mortgage
shows that it, was an independent transaction. It is clear from the mutation P. 7 that it
was an independent mortgage. The language used in the mutation relating to previous
mortgages is different from the language need in this mutation. In the previous
mutations the older mortgages are mentioned but not in Ex. P. 7 The reasonable
inference is that the 1914 document had no connection with the previous mortgages.
There was a lapse of about nine years between the mortgages of 1905 and 1914 and it
is quite possible that all the, mortgages up to 1905 may have been redeemed earlier and
this mortgage was effected not in connection with the previous mortgages but in
connection with some other requirements. I, therefore, see no reason to interfere with
this finding of the lower Courts that the 1914 mortgage is independent of the previous
mortgages. That being so the Special Collector, Lahore, had no jurisdiction under the
1938 Act to extinguish this mortgage. It is conceded that if the order of the Special
Collector does not affect, the rights of the parties then the plaintiffs are entitled to a
decree for possession under the 1914 mortgage. I therefore, hold that the plaintiffs' suit,
was rightly decreed by the lower Courts.
The result is that this appeal fails and is dismissed with costs.
Appeal dismissed.