Pankaj Narain Shah vs Shantilal Himatlal Shah

D.P. Buch, J.—The petitioners above named have filed this Civil Revision Application u/s 115 of the Code of Civil Procedure, 1908

challenging the judgement and order recorded by the Learned Assistant Judge at Vadodara on 5.3.1999 in Civil Misc. Appeal No. 409 of 1998

whereby the Learned Assistant Judge allowed the said appeal and set aside the order passed below application Exh.7 on 28.10.97 in Special Civil

Suit No. 326/97 by the Learned 3rd Joint Civil Judge (SD) Vadodara.

It appears that the Learned Civil Judge by order dated 20.10.1997 granted interim injunction in favour of the original plaintiff and against the

defendants. The Learned Assistant Judge allowed the appeal and set aside the aforesaid order of injunction and dismissed the said application of

the plaintiff. Therefore the original plaintiff have brought this revision before this Court.

A primary objection has arisen as to whether the Learned Assistant Judge had jurisdiction to entertain the aforesaid Civil Misc. Appeal. The

matter has been argued on behalf of the parties by their respective advocates. I have gone through the papers and I have also gone through the

provisions contained in the Bombay Civil Courts Act.

Learned Advocate for the petitioners argued at length that the Learned Assistant Judge while hearing the Misc. Appeal against the judgment and

order of the Civil Court had no jurisdiction to entertain the said appeal. On the other hand, the Learned Advocate for the respondents has argued

that he did possess the jurisdiction to entertain the said appeal.

Now incidentally the aforesaid point was raised before the Learned Assistant Judge also and the Learned Assistant Judge relied upon a decision

of this Court in order to hold that he had jurisdiction to entertain the said appeal.

The said decision can be read from Filoma Pathubhai Patel and Others Vs. Ambalal D Bhagat and Others reported in 1987(1) G.L.H. (U.J.)

Hon''ble Mr. Justice S.B.Majmudar, J (as his Lordship then was) considered in FA No. 557/84, the provisions contained in Section 6(iv)(j) of

the Bombay Court Fees Act, 1959 and also considered the provisions contained in Section 8 of the Suit Valuation Act, 1887. The provisions

contained in Section 8, 24 and 26 from the Bombay Civil Courts Act, 1869 were also considered. It appears that the aforesaid suit was filed on a

Court Fee stamp of Rs.30/- and was valued for the purpose of court fees u/s 6(iv)(j) of the Bombay Court Fees Act accordingly. Then so far as

the valuation for jurisdiction is concerned, this Court found that the valuation for the purpose of court fees would automatically govern the valuation

for the purpose of jurisdiction, therefore it has been observed that the suit will have to be treated by deeming fiction of Section 8 of the Suit

Valuation Act to be valued for the purpose of jurisdiction also on that basis. Therefore, it was held that the appeal would lie to the District Court.

Thereby holding that the valuation for the purposes of court fees and jurisdiction was limited to Rs.300/-.

If we can turn to the provisions containing Section 26 of the Bombay Civil Courts Act, we find that there it has been made clear that when the

valuation of the suit exceeds Rs.50000/- then the appeal from the decision would lie directly to the High Court. In other words if the valuation is

below Rs.50000/-, the Appellate Authority is the District Court. It may be an appeal under Order 41 or it may be a Misc. Appeal under Order 43

of the Civil Procedure Code. In both the events if the valuation of the suit for the purpose of jurisdiction is below Rs.50000/-, the appeals would lie

to the District Court and if it exceeds that value then the appeal would lie directly to the High Court.

In the case before us, it is an admitted position that the valuation of the suit for the purpose of Court Fees and jurisdiction, both, is exceeding

Rs.50000/-. In that view of the matter, the aforesaid decision of 1987(1) GLH (U.J) 21 (Supra) will not come into play in view of facts of the case

before us. There, the valuation for the purpose of court fees and jurisdiction was Rs.300/-. In the case before us the valuation of the suit for the

purpose of court fees and jurisdiction is exceeding Rs.50,000/-.

Therefore even if we ignore the fact that the suit has been registered as Special Civil Suit the position remains that in the case before us the

valuation of the suit for the purposes of court fees and jurisdiction exceeds the amount of Rs.50000/- and therefore the appeal would directly lie

before this Court u/s 26 of the Bombay Civil Courts Act.

A reference was made to Satya Narain Vs. Smt. Mamta and Another, . There ordinarily the plea was not taken before the trial Court and

hence was allowed to be taken in appeal fo the first time.

In the present case, the issue touches the jurisdiction of the District Court and the point was specifically raised before the District Court.

Therefore, the aforesaid decision will not apply to the facts of the case before us.

I am therefore of a clear decision that the suit in question has been valued for the purposes of court fees and jurisdiction at a amount exceeding

Rs.50000/and therefore u/s 26 of the Bombay Civil Court Act, the appeal would lie to the High Court and not to the District Court. The District

court had therefore no jurisdiction to entertain the appeal. In that view of the matter, the Learned Assistant Judge has committed jurisdictional error

in holding that he had jurisdiction to entertain the said Civil Misc. Appeal before him.

In aforesaid view of the matter, it is very clear that the Learned Assistant Judge had no jurisdiction to entertain the Civil Misc. Appeal. The

appeal entertained by him is without jurisdiction and when the Court functions and passes an order without having any jurisdiction to entertain the

said matter, it would be the duty of this Court to interfere with the said decision of the said Court while exercising revisional powers u/s 115 of the

Code of Civil Procedure, 1908. Under the aforesaid circumstances, I am of a clear decision that the Learned Assistant Judge has acted without

jurisdiction in entertining, hearing and allowing the said appeal. The said judgement and order of the Learned Assistant Judge therefore require

interference by this Court and therefore they are required to be quashed and set aside.

Under the circumstances, this Civil Revision Application is allowed. The judgement and order of the Learned Assistant Judge are set aside.

Considering the facts and circumstances of the case there shall be no orders as to costs. Rule made absolute.