Shivpujan Yadav vs Bishnudeo Prasad and Others

M.Y. Eqbal, J.—This application under Article 227 of the Constitution of India is directed against the order 23.7.2008 passed by 1st Addl. District Judge, Garhwa in Misc. Appeal No. 06 of 2007 whereby he has allowed the appeal and set aside the order passed by the Subordinate Judge-I, Garhwa in Title Suit No. 23 of 2007 rejecting prayer of the plaintiff-respondent under Order 39, Rules 1 & 2 of the CPC and further granted temporary injunction.

The brief fact of the case is that the plaintiff-respondent filed aforementioned suit before the Subordinate Judge, Garhwa for declaration of his right under the deed of reconstitution of partnership dated 11.2.2003 between the plaintiff and defendant Nos. 1, 2, 3, 5 and 13. The defendants appeared in the suit and filed written statement controverting the statements made in the plaint. The plaintiff, in the meantime, filed application under Order 39, Rules 1 & 2 of the C.P.C. and prayed for temporary injunction restraining the defendant from executing the performance of the duty and further to restrain the defendant from withdrawing any amount. The said application was opposed by the defendants. The learned Subordinate Judge after hearing the parties, rejected the application and refused to grant any injunction. Aggrieved by the said order, the plaintiff filed appeal before the District Judge, Garhwa being Misc. Appeal No. 06 of 2007 which was eventually transferred to the Court of 1st Addl. District Judge, Garhwa. The appellate Court after hearing the parties reversed the order passed by the Subordinate Judge, Garhwa and allowed the appeal and granted temporary injunction in the manner prayed for by the plaintiff. Hence, this application challenging the order passed by the appellate Court.

Mr. Rajeev Ranjan, learned Counsel appearing for the petitioner-defendants, raised a preliminary objection with regard to jurisdiction of the Court of Appeal below. Learned Counsel submitted that admittedly suit was valued at Rs. 30 lacs and, therefore, the Court of Appeal below committed serious illegality in entertaining the appeal and passing the impugned order which is wholly without jurisdiction.

On 22.9.2008, this matter was placed before this Bench and the following order was passed:

The preliminary objection raised by Mr. Rajeev Ranjan that the impugned order passed by the Court of appeal below is without jurisdiction in as much as admittedly the valuation of the suit was Rs. 30 lakhs and therefore, the o refusing to grant injunction ought to be challenged before the High Court and not before the District Judge.

Let this case be listed in the next week for passing appropriate order.

Hence, I shall first decide the preliminary objection raised by the petitioner.

Before deciding the objection, I would first like to refer Section 21 of the Code of Civil Procedure:

Objections to jurisdiction. � (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.

At this stage, it would also be proper to refer Section 11 of the Suit Valuation Act, 1887 which reads as under:

Section 11- Procedure where objection is taken on appeal or revision that a suit or appeal was not properly valued for jurisdictional purposes.- (i) Not withstanding anything in Section 578 of the Code of Civil Procedure, 1882 (14 of 1882) an objection that by reason of the overvaluation or under-valuation of a suit or appeal a Court of first instance or lower Appellate Court which had no jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an Appellate Court unless�

(a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower Appellate Court in the memorandum of appeal to that Court, or

(b) the Appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit or appeal was over-valued or under-valued, and that the over-valuation or under-valuation thereof has prejudicially affect the disposal of the suit or appeal on its merits.

(2) If the objection was taken in the manner mentioned in Clause (a) of Sub-section (1), but the Appellate Court is not satisfied as to both matters mentioned in Clause (b) of that Sub-section and has before it the materials for the determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in Court of first instance or lower Appellate Court.

(3) If the objection was taken in that manner and the Appellate Court is satisfied as to both those matters and has not those materials before it, it shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of appeals; but if it remands the suit or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a Court competent to entertain the suit or appeal.

(4) The provisions of this section with respect to an Appellate Court shall, so far as they can be made applicable, apply to a Court exercising revisional jurisdictional u/s 622 of the Code of Civil Procedure, 1882 (14 of 1882), or other enactment for the time being in force.

(5) This section shall come into force on the 1st day of July, 1887.

From bare perusal of Sub-section (2) of Section 21 of the Code of Civil Procedure, it is manifestly clear that in cases where objection with regard to pecuniary jurisdiction is not taken in the Court at the first instance, at the earliest possible opportunity, such objection at the appellate or revisional stage cannot be allowed to be taken. Similarly, Section 11 of the Suit Valuation Act provides that an objection with regard to pecuniary jurisdiction cannot be allowed to be taken where such objection with regard to jurisdiction was not taken at the first instance or before the lower appellate Court. It is, therefore, clear that the same principle has been enunciated both u/s 21 of the CPC and Section 11 of the Suit Valuation Act. The object of these provisions is that when a case had been tried by a Court on merits and judgment and order is passed, it shall not be reversed purely on technical ground, unless it had resulted in failure of justice. In my considered opinion, therefore, in cases where interlocutory orders are challenged on the ground that the Court, at the first instance or the first appellate Court, having no pecuniary jurisdiction, then such objection cannot be allowed if the objection with regard to pecuniary jurisdiction of the Court had not been raised at the first instance or before the first appellate Court.

In the instant case, Mr. Rajeev Ranjan, learned Counsel appearing for the petitioner, fairly admitted that no objection was raised by the petitioner in the first appellate Court with regard to its pecuniary jurisdiction. In that view of the matter, merely because of want of pecuniary jurisdiction, the impugned order cannot be set aside. However, the propriety of the impugned order passed by the appellate Court shall be considered at the time of final hearing of this application.