The State of Madras vs Charles Harold Simpson

Anantanarayanan, J.—This second appeal involves two questions of some complexity and interest, relating to the pecuniary jurisdiction of

the Court which tried the suit from which the appeal has arisen, and the legality of the trial itself. If those grounds, which have been urged before us

by the learned Advocate-General for the State of Madras (Appellant), or either of them, should prevail, it may be necessary for the suit to be

retried altogether. There is also an additional ground now raised here by the State, with the leave of Court, which involves a question of

significance for the administration of justice in such a manner as to preserve and maintain the confidence of the public in that administration. We

may observe further that, within the ambit of the second appeal, as now argued, the merits of the claim do not concern us. A history of the claim is,

however, essential for an elucidation of the problems presented by the second appeal. That history, briefly stated, is as follows:

The suit was filed by a certain C.H. Simpson for a declaration of his right to the property in suit and an injunction restraining the State of Madras

(Defendant) from disturbing his possession. Admittedly, the claim relates to an extent of 856.50 acres of forest land in Azhakiapandiapuram. The

suit was originally instituted in the District Court of Nagercoil under the provisions of the Travancore-Cochin Civil Courts Act XXII of 1951,

particularly Section 21 of that Act. As a great deal of the controversy centres round the problem whether this statutory provision is saved,

notwithstanding the merger and the extension of the Madras Acts to the transferred territory, this may be a convenient context for setting forth the

provision verbatim:

Notwithstanding anything contained in this Act, suits or other proceedings by or against the Government, or the Government of India, the Executive

Officer of the Sree Padmanabhaswamy Temple, the Travancore Devaswom Board or the Cochin Devaswom Board shall be instituted in the

District Court having local jurisdiction.

The subsequent events are as follows. The Madras (Transferred Territory) Extension of Law''s Act XXII of 1957, dated 18th December 1957,

extended the Code of Civil Procedure, as amended by the Madras High Court, to the Courts in the Kanyakumari district, as also the Madras Civil

Courts Act, 1873. The Madras Civil Rules of Practice and the amendments thereto were extended to the Kanyakumari district on 1st January

1958. Thereafter this suit was transferred to the Court of the District Munsif of Nagercoil. We shall leave aside, for a moment, the details

concerning the pecuniary valuation of the claim for jurisdiction and Court-fee; as we shall show later, that involves a separate problem, and is one

of the grounds of the learned Advocate-General The suit was tried and decreed by the learned District Munsif. The Defendant (State of Madras)

filed an appeal, and the learned Subordinate Judge of Nagercoil allowed the appeal. The Plaintiff (C.H. Simpson) then filed Second Appeal No.

438 of 1961, which was heard and disposed of by Ramakrishnan J. in a judgment in which the material on record was elaborately considered. For

reasons set out by him, the learned Judge remanded the action for fresh disposal by the first appellate Court in the following terms:

It is clear therefore that we have here an unsatisfactory judgment of reversal. It appears necessary to obtain from the lower Court a fresh decision

after relying on evidence duly admitted according to law, and after discounting irrelevant considerations. I, therefore, allow this appeal and set

aside the decree of the lower appellate Court. The appeal will be restored to file of the lower appellate Court for disposal afresh, after considering

the relevant items of evidence .... It will be open to both parties to adduce fresh evidence, if they chose fit, subject to the restrictions in Order 41,

Rule 27, Code of Civil Procedure.

What happened subsequently was that the learned Subordinate Judge of Nagercoil reheard the appeal (Appeal Suit No. 86 of 1961), after framing

the points for determination, and dismissed it with costs. The State of Madras (Defendant) has now appealed, and the learned Advocate-General

has placed in the forefront of his arguments the following grounds:

Firstly, the learned Advocate-General urges that Section 21 of the Travancore-Cochin Civil Courts Act, which we have extracted and set forth

earlier, is saved notwithstanding the extension of the Madras Acts to the transferred territory, upon a proper interpretation of the relevant statutory

provisions. If that view is to be upheld, it will at once be obvious that the transfer of the suit to the Court of the District Munsif of Nagercoil was

illegal, as that Court would not be a Court of competent jurisdiction to try such a claim. As a logical consequence, it follows that all subsequent

proceedings of an appeal to the Court of the Subordinate Judge and a second appeal to this Court, would be equally invalid, though the Defendant

(State of Madras) might have acquiesced therein. There can be no estoppel against statute. This Court must now set aside the decree, and direct

that the suit be retransferred to the District Court of Nagercoil, and tried afresh. The second ground concerns the absence of jurisdiction, resulting

from a lack of pecuniary jurisdiction. The facts of this matter can be quite briefly stated. Valuation for purposes of jurisdiction and Court-fee, as far

as this claim is concerned, was originally governed by the United State of Travancore and Cochin Court Fees Act II of 1125 (M.E.). That is not in

dispute. Section 3(4)(f) of that Act, ran as follows:

(4) In suits

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(f) to obtain a declaratory decree or order where consequential relief is prayed for,-according to the amount at which the relief sought is valued in

the plaint or memorandum of appeal.

In all such suits, the Plaintiff shall state the amount at which he values the relief sought.

The actual valuation adopted by the Plaintiff, and the basis of valuation are both very clear from the returns on the plaint, to which our attention

has been drawn. The following part of the return explains the matter in both a concise and unambiguous manner. It runs as follows:

Main relief is for declaration. Prayer for injunction is ancillary and consequential injunction is asked for on the same facts on which declaration of

title is asked for. It is not necessary to value the two reliefs separately nor it is necessary to pay Court-fees on the market value, as recovery of

possession is not asked for. Section 3, Clause 4, sub-Clause F of the T.C. Court Fees Act entitles the Plaintiff to state the amount at which the

relief is sought to be valued. Plaintiff has fairly valued at Rs. 1,000. It is submitted, therefore, that the suit is properly valued.

We might here add that, in this respect, the contention of the State of Madras (Appellant) is that the property is worth enormously more than

that indicated by this method of valuation, as the suit concerns a vast area of forest land. The Plaintiff has deliberately made a valuation that is

absurdly low, and thereby fraudulently taken the claim out of the pecuniary jurisdiction of a higher Court. Upon this basis, the submission of the

learned Advocate-General is that the trial of the suit in the Court of the District Munsif was invalid for this reason also, and that an enquiry should

now be made into the true value of the subject-matter of the second appeal. The Plaintiff should be directed to pay the true Court-fee as on the

market-value and the suit should be retried. Very briefly stated, it is contended for the Plaintiff (Respondent) that (i) the Court-fee paid was correct

according to the law then in force and (ii) more importantly, that no ground of lack of pecuniary jurisdiction can be advanced at this stage, as

vitiating the trial of the suit. The Defendant (Appellant) has throughout submitted to the jurisdiction, and the matter is definitely concluded by res

judicata.

There is a very important additional ground, that we have permitted the Appellant (State of Madras) to raise and it may be set forth in the

language of the ground itself:

The judgment does not embody the findings of the learned Subordinate Judge, but appears to be the wholesale adoption of Plaintiff�s written

notes of argument and accordingly is liable to be set aside as contrary to law.

We shall dispose of these grounds in the following order. We shall first deal with the entire issue of pecuniary jurisdiction, in the light of the

authorities cited, and the extent to which the State of Madras (Appellant) can now be heard to question the trial itself upon any argument of lack of

jurisdiction. Incidentally, this will involve the further question whether the State of Madras is precluded from agitating this issue at all, by virtue of

res judicata. Next, we shall deal with the question whether Section 21 of the Travancore-Cochin Civil Courts Act XXII of 1951, is saved,

notwithstanding the extension of Madras laws to the transferred territory. Certainly, if that provision is to be held saved, and in force after such

extension, the transfer of the suit to the Court of the District Munsif of Nagercoil for trial and the subsequent trial will both be invalid as

contravening the statute ; the suit will necessarily have to be; now tried by a Court of competent jurisdiction. Lastly, we shall deal with the very

important ground, important from the point of view of the administration of justice in such manner as to preserve public confidence in that

administration, whether the judgment is bad as a wholesale embodiment of the written arguments of one of the parties.

We must refer here to one more important fact. Admittedly, the question of proper Court-fee, both for jurisdiction and valuation, came up for

consideration as a relevant issue (issue No. 5) at the trial itself. On this issue the finding is in the following terms in the judgment of the learned

District Munsif:

The Defendant raised the contention in the written statement that the court-fee paid is not correct. At the time of arguments it is conceded by the

Defendant''s counsel that the court-fee paid is correct. Hence I find this issue in favour of the Plaintiff.

It is upon this that the learned Counsel for the Plaintiff contends that, in any event, this line of arguments itself is not available to the Appellant,

because of the bar of res judicata.

Upon this aspect, it would appear to be very clear that the arguments of the learned Advocate-General cannot be sustained, because of the

principle of res judicata and because of Section 8 of the Travancore-Cochin States Valuatio Act, 1125 (M.E.), which corresponds to Section 11

of the Indian Suits Valuation Act, 1887. In Kelu Achan v. Cheriya Parvathi Nethiar ILR (1923) Mad. 631, 648 (F.B.) it was held that from the

mere fact that a party was deprived of the right of appeal on facts before the High Court, it cannot be deemed that the undervaluation had

prejudicially affected the disposal of the suit or appeal on merits within the terms of Section 11 of the Suits Valuation Act. The same view was

adopted in Sri Rajah Ravu Venkata Mahipathi Gangadhara Rama Rao Bahadur Garu, Yuvarajah of Pithapuram and Another Vs. The Province of

Madras, , 585, which followed Kelu Achan v. Cheriya Parvathi Nethiar ILR (1923) Mad. 631, 648 (F.B.). It was further held that Section 11 of

the Suits Valuation Act required something more, namely, that there should not only be a defect of jurisdiction by reason of the under-valuation but

also a disposal of the suit on the merits, which has been prejudicially affected by such under-valuation. The matter must now be deemed to have

been set at rest by the decision of the Supreme Court in Kiran Singh and Others Vs. Chaman Paswan and Others, . Apart from holding that

Clauses (a) and (6) of Section 11 of the Suits Valuation Act should be read conjunctively, their Lordships also laid down other principles of great

importance. The policy underlying Section 11 of the Suits Valuation Act and Sections 21 and 99 of the CPC was the same, namely, that when a

case has been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless there

has been a resulting failure of justice. The policy of the Legislature is 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. Further,

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 suit as ultimately determined.

Upon the matter of res judicata, the learned Counsel for the Respondent has also relied upon Katamberi Chuzhali Bhagavati Amma''s owner,

Uralan and Manager Samanthan Karakkattitathil Kammaran Nambiar (since deceased) and Another Vs. Valia Ramunni, Karnavan and Manager

now the Santikkaran of Parachinikkatavath Mattappurakkal Muthappan Deity, styled as ""Matayan"" and Others, . As stated therein:

The general rule, as already stated, is that consent cannot give jurisdiction; but Sections21 (Code of Civil Procedure) and 11 (Suits Valuation Act)

provide exceptions to that rule.

Again, in Kuppanna v. Peruma ILR (1961) Mad. 1143 (F.B.) it was laid down that, for ascertaining the value of the subject-matter in dispute,

for purposes of Article 133 of the Constitution, a party could go behind the valuation adopted in the plaint or memorandum of appeal, but subject

to the attractions of the rule of res judicata. Further, learned Counsel for Respondent has urged that the application, at the present stage for a fresh

enquiry into the value of the subject-matter is not maintainable. It was laid down in Katamberi Chuzhali Bhagavati Amma''s owner, Uralan and

Manager Samanthan Karakkattitathil Kammaran Nambiar (since deceased) and Another Vs. Valia Ramunni, Karnavan and Manager now the

Santikkaran of Parachinikkatavath Mattappurakkal Muthappan Deity, styled as ""Matayan"" and Others, that the objection could not be taken at

some later stage in the suit. It was also held in Yuvarajah of Sri Rajah Ravu Venkata Mahipathi Gangadhara Rama Rao Bahadur Garu, Yuvarajah

of Pithapuram and Another Vs. The Province of Madras, that if an objection is not taken at the earliest possible opportunity, it could never have

been entertained.

On behalf of the State it was further contended that Sections 7, 25 and 53 of the Madras Court Fees Act of 1955 would apply to the instant

case and that the valuation by the Plaintiff of the subject matter in dispute at Rs. 1,000 for jurisdiction cannot be accepted. This aspect of the

matter is independent of the argument based upon res judicata and the operation of Section 11 of the Suits Valuation Act. My learned brother, in

his separate judgment, which I have had the advantage of perusing, has dealt with this matter elaborately and in detail, holding that the Madras

Court Fees Act of 1955 cannot be applied to the instant case but that for purposes of Court-fees and jurisdiction the Travancore and Cochin

Court-fees Act and the Travancore and Cochin Suits Valuation Act alone would apply, and the Plaintiff�s valuation of the subject-matter in

dispute at Rs. 1,000 for purposes of Court-fees and jurisdiction is unassailable and correct u/s 3(iv)(f) of the Travancore and Cochin Court-fees

Act. I entirely agree with my learned brother.

Srimanthu v. Venkatappayya ILR (1948) Mad. 18 (F.B.) is cited for the view that the question of jurisdiction can be agitated at any time, arid

that the transfer would be void if the transferee Court had no jurisdiction. Kuppanna v. Peruma ILR (1961) Mad. 1143 (F.B.) is also relied on by

the Appellant for the view that the furnishing of a notional value does not preclude a party from showing the real value. Ledgard v. Bull ILR (1886)

All. 191 (P.C.) is relied on for the proposition that if the suit is not instituted in a competent Court, even the subsequent transfer to a competent

Court would be invalid. In order to make the decision of a Court conclusive, it must be that of a competent Court, vide Alla Viraswami Vs.

Polavarapu Nayudamma and Others, Amarsangji Dungarji v. Deepsangji Pawabai ILR (1924) 49 Bom. 442 has been cited for the claim that there

is no res judicata if the judgment is not that of a Court of competent jurisdiction. That competency of jurisdiction would depend on the pecuniary

limits as well as the subject-matter, is clear from the authority of the Supreme Court in Mst. Gulab Bai Vs. Manphool Bai, . Vasireddi Veeramma

v. Butchayya ILR (1926) Mad. 646 enunciates that a notional value can prevail only where no other method is provided; but for property of real

value, the market-value should be furnished for the purpose of jurisdiction.

We have referred to these authorities, but the matter seems to be clear beyond doubt because of the effect of Section 11 of the Suits Valuation

Act and the principle of res judicata., both of which flow from the decisions earlier cited by us. It is true that the property in this case would appear

to be of considerable value; and if market-value is to be the criterion, certainly there is a very marked disproportion in the Court-fee actually paid

by the Plaintiff. But, that Court-fee was paid in terms of a valid enactment then applicable to suits of this character. The Plaintiff was given a definite

right to furnish such a notional valuation, both for jurisdiction and for the claim itself and the consequential relief of injunction. Even more

significantly, the Defendant (Appellant) objected to this, and an issue was raised, and it was heard and determined against the Defendant. There

cannot be a clearer case of res judicata. The Appellant is, therefore, definitely barred on this aspect, and he cannot now be heard to question the

forum of trial.

The next aspect is that relating to the saving of Section 21 of the Travancore-Cochin Civil Courts Act, that we have earlier set forth. The

general principles upon this matter may be elucidated as follows:

Before proceeding to these principles, however, we might briefly refer to the provisions which affect the further validity of Section 21 after the

extension of the Madras laws to the transferred territory. Under the Central Act III of 1951, providing for the extension of laws to Part B States,

Section 6 provided for the repeal of any law in those States corresponding to any of the Acts or Ordinances now extended to that State. But there

was a further proviso that the repeal shall not affect:

(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or

* * *

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, for feature or punishment as

aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced...as if this Act had not been passed;

The corresponding provision in Madras Act XXII of 1957, extending certain laws to the transferred territory, which is also Section 6, runs as

follows:

If, immediately, before the commencement of this Act, there is in force in the transferred territory any Act, Ordinance, Proclamation, regulation,

order, by-law, rule or other law corresponding to an enactment specified in the Schedule, whether such Act, Ordinance, Proclamation regulation

order, by-law, rule or other law is in force by virtue of Section 119 of the States Reorganization Act, 1956 (Central Act 37 of 1956), or by virtue

of any other legislative power, such corresponding law shall, upon the commencement of this Act, stand repealed to the extent to which the law

relates to matters with respect to which the State Legislature has power to make laws for the State.

We might add that the Madras Civil Courts Act, 1873, is one of the Acts extended, by virtue of the Schedule, to the transferred territory.

On behalf of the State, reliance was placed on the statement of the law in Craies On Statute Law (fifth edition), page 348 where the principle is

expressed in the following form:

...as stated by Lord Selborne in Seward v. Vera Cruz (1885) 10 App. Case 59, 68, that where there are general words in a later Act capable of

reasonable and sensible application without extending them, to subject specially dealt with by earlier legislation, you are not to hold that earlier and

special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular

intention to do so.

In Maxwell On Interpretation of Statutes (eleventh edition), page 169, after citation of this very judicial authority, the rule is expressed in the

form that

...the general statute is read as silently excluding from its operation the cases which have been provided for by the special one.

The argument of the learned Advocate-General here is very simple. The-relevant Act that was extended to the transferred territory, namely,

the Madras Civil Courts Act, 1873, admittedly does not make any provision for that category of claims for which special provision is made u/s 21

that we-have earlier set forth, namely, suits by or against Government, and Bodies specified in that section. Hence, the provision must be held

saved, and, if it is saved, the transfer of the suit is invalid. It appears to me to be very clear that, in the light of the catena of decisions that I shall

immediately refer to, and the principle itself as flowing from the terminology of Section 6 of Act XXII of 1957, that Section 21 cannot be held

saved, but stood repealed after the extension of certain laws to the transferred territory. The abovesaid passages in Craies On Statutes and

Maxwell On Interpretation of Statutes relied upon by the learned Advocate-General have clearly no application to the instant case. In the first

place, there is no occasion for applying the rule as to how far a later general Act would repeal an earlier special legislation. The Madras Civil

Courts Act and the Travancore and Cochin Civil Courts Act are legislative enactments of the same pattern, dealing with the identical topic of

jurisdiction of Courts, both covering the same field. Secondly, the repeal of Section 21 of the Travancore and Cochin Court Fees Act is effected

neither indirectly nor by any implication. It is a clear case of express repeal and the unambiguous provisions of the later Act have to be given effect

to. In Augusthy v. Ali ILR (1956) Tra. Co. 1078 a division Bench of that Court had to consider the extent to which the Travancore Christian

Succession Act would be repealed or otherwise, by Part B States (Laws) Act III of 1961. The learned Judges held that the Travancore

Succession Act was not repealed but must be regarded as law in force, as Section 29(2) saved that Act, as the Indian. Succession Act was not

intended to interfere with the personal laws of communities which had settled laws of their own. In Khandu v. State AIR 1954 Pepsu 113 an

instance of some interest and importance arose. The Indian Penal Code was adopted by the erstwhile Patiala State, and the question was whether

the offences specified in Chapter XV of the Indian Penal Code (Sections 295 to 298) should be interpreted not merely as offences relating to

religion, but as offences corresponding in any manner to Sections 287 of the Patiala Penal Code (pre-existing law), which rendered punishable

such acts as slaughtering or killing cows, etc. This was with reference to Section 6 of the Part B States (Laws) Act, 1951, particularly with

reference to the word corresponding occurring in the Act. The Court observed that even if the word corresponding be interpreted as of the same

significance as similar it could not be held that the offences defined in Chapter XV of the Indian Penal Code were of the same character or nature

as Sections 287 to 289 of the Patiala Penal Code. On the contrary, the two groups of offences were totally dissimilar in nature and character, and

hence the earlier provisions were held saved. The next case Periyakan and Anr. v. The Government of Mysore AIR 1952 Mys. 84 dealt with the

question, whether the Mysore Mines Act became inoperative even after the Indian Mines Act had become applicable to the Mysore State. Since

the judgment is a very brief one, and the reasoning appears clearly in paragraph 2 of the judgment (page 85), we extract it here below:

There is nothing in the Constitution of India which renders the Mysore Act ipso facto void. No. 23 in the State List is Regulation of Mines and

Mineral Development subject to the provisions of List 1 with respect to regulation and development under the control of the Union. No. 64 to List

1 is Regulation of Mines and Mineral Development to the extent to which such regulation and development under the control of the Union is

declared by Parliament by law to be expedient in the public interest. It is clear from this that the State is competent to enact laws for Mining and

Mineral Development but it is subject to laws of the Union about the same. The Indian Mines Act (1923) became applicable to the State as a

result of the part B States Act. Section 6 of that Act provides for laws corresponding to the enactments mentioned therein ceasing to be operative.

Since it is admitted that there is nothing in the Indian Act which corresponds to the sections now in question and the scope of the Mysore Act and

the Indian Act is not identical, the purpose of each is not the same. The Mysore Act as a whole cannot be regarded as being made in operative.

The objection is untenable....

In Karuppan v. Krishnappa ILR (1958) Mad. 603 Rajagopalan O.C.J., and Rajagopala Ayyangar J., had to deal with the applicability of

Section 3(ii) proviso (c) of Madras Act IV of 1938, to cases of house-tax levied, under the Pudukkottai Regulation III of 1925. The effect of the

provisions of the Merged States (Laws) Act, has been discussed in this context, by the learned Judges. The guiding principle which is evident in

this entire line of cases came in for detailed exposition in Anant Prasad v. State of Andhra Pradesh (1964) 1 S.C.R. 844 (Supp.). That was also a

case u/s 6 of the Part B States (Laws) Act, 1951, and the question was, whether the extension of the Charitable Endowments Act VI of 1890 and

the Charitable and Religious Trusts Act XIV of 1920, to the Part B State of Hyderabad involved a repeal of the Hyderabad Endowments

Regulations, 1940. Their Lordships pointed out that Act VI of 1896, definitely excluded religious and public trusts from its ambit. As to Act XIV

of 1920, although it applied to religious trusts that was for a very restricted purpose, as would be clear from Section 3 of that Act; the Hyderabad

Regulations, on the contrary, constituted a much wider enactment, and since the extended laws did not provide for the subject-matter of the

Regulations, the Regulations were not repealed. That, briefly, is the criterion to be adopted in all such cases.

Applying this criterion, it is very clear that Section 21 cannot survive. The Madras Civil Courts Act, 1873, does not place within any special

category suits as between the State and a subject, whether by or against the State; such suits have to be tried in the Court of the least pecuniary

jurisdiction, and in the ordinary civil Courts of the land. The clear intendment of the statute is that there shall be no such special category of suits by

or against Government involving a special forum. Apart from this, it is certainly competent for the State Legislature to make laws for the State, in

this respect, and hence also Section 21 cannot survive after the extension of Madras laws to the transferred territory, now comprising the

Kanyakumari district. Since Section 21 does not survive, the suit was rightly transferred to the Court of the District Munsif of Nagercoil for trial,

and was properly tried there.

In this view, it will not be necessary for us to deal, at any length, with the argument which turned upon the word instituted as occurring in

Section 21. The question was whether the term instituted would include subsequent proceedings by way of appeal, etc., or would normally indicate

only the commencement of an action. In Hood Barrs v. Cathcart (1894) 3 Ch. 376 Lopes L.J., observed with reference to an argument based on

Section 2 of the Married Women''s Property Act, 1896, wherein the words proceeding instituted occurred, that it conveyed only the idea of an

action commenced. To similar effect are the dicta of Wills J., in Beardsley v. Giddings (1904) 1 K.B. 847. This would not include subsequent

proceedings, such as an appeal. It is not necessary to discuss this aspect further, for the learned Counsel for the Respondent (Plaintiff) can claim

that, where Section 21 is not saved, the proceedings on transfer to the Court of the District Munsif of Nagercoil are valid in their own right.

We finally come to the additional ground, which has occasioned us some concern. The facts upon the matter would appear to be as follows, as

can be gleaned from the data on record, which include two reports of the learned Subordinate Judge, who dealt with the appeal.

It appears that the Government Pleader, Kanyakumari, was led by a perusal of the draft judgment, to believe that the judgment was not one

dictated by the Judge, but merely an adoption of the written arguments on the side of the Plaintiff (Respondent). Admittedly, he filed an affidavit

and petition before the District Judge concerning this matter, and also concerning the absence of notes of a local inspection. From this affidavit, and

from related records, it is clear that the complaint was twofold. The first related to the adoption of the written arguments of one side as the text of

the judgment, or the most crucial portion thereof, and the second to the fact that the learned Subordinate Judge made a local inspection but

recorded no notes. The learned Advocate-General has also made available to us photostat impressions of the typed draft judgment, in support of

the averments.

There are two reports of the learned Subordinate Judge who disposed of this matter. A report was made to the District Judge of Nagercoil,

and we called for a fuller report from the learned Subordinate Judge on the judicial side, as we did not desire to act merely upon records

administratively available. The reports are substantially identical, and it is clear enough from them and from the entire record, that the learned

Subordinate Judge did incorporate the written arguments, or extract and summary of the exhibits of title, whichever way this might be termed, as

the crucial part of his judgment verbatim, and as furnished to him by the learned Counsel for the Plaintiff. This is also clear from the statement made

by the stenographer before the learned District Judge. We desire to make it clear here that the learned Subordinate Judge appears to have been

under the bona fide impression that the learned Counsel for the Plaintiff and the learned Government Pleader had furnished or were furnishing

notes, which they had exchanged. There can be no doubt at all that he felt oppressed by the magnitude and complexity of the case, and the fact

that he had to complete his judgment, ordinarily speaking, within fourteen days of the close of the arguments in the case. The learned Subordinate

Judge had attempted elaborately to explain and defend his conduct. He states that the subsequent portion of his judgment, which is the crucial part,

commencing with the words, Let me now trace the title, was only an expansion of the list of documents giving the translations of the relevant

portions, of the exhibits, in other words, a gist of the exhibits. We regret that we are totally unable to accept this explanation of the learned

Subordinate Judge, though we have no doubt at all of his sincerity. We do not, for a moment, entertain any imputation about his bona fides. This

Court has repeatedly deprecated the submission of written arguments for this very reason that they tend, in certain instances, to furnish a line of

least resistance, which an oppressed judicial officer is only too willing to adopt. It is sufficient here to refer to the dicta in Emperor v. Chinnathambi

1935 M.W.N. (Crl.) 180 and of Devadoss J., in Mannem Venkayya v. Emperor 1928 M.W.N. 788. In the present case, the verbatim adoption

of the notes of arguments of one party, as a crucial part of the judgment, not merely vitiates the judgment, but impairs the confidence of litigants and

the public in the administration of justice. A judgment has to be the evidence of the unfettered application of the judicial mind, to the facts and the

issue in controversy. We are quite unable to accept the contention that, because the judge has approbated a particular line of reasoning which

appears in written arguments, the verbatim adoption of such arguments as the text of his judgment, or of a crucial part of it, will amount to the

exercise of the judicial mind. It will not; and nothing can be more calculated to impair public confidence in the administration of justice than such

laxity of practice. We need not further point out that the learned Subordinate Judge ought not to have felt so oppressed by the rule regarding

fourteen days, as to have fallen into this error. That rule is not absolute, and he could very well have taken the time required for the careful

composition of his judgment, and explained the excess time taken in the light of the circumstances. The rule has been designed only to prevent too

frequent delays in the delivery of judgment. As matters stand, and particularly after a study of the true state of affairs as revealed by the photostat

copy of the judgment of the learned Subordinate Judge himself, we are constrained to conclude that what appears to be the judgment is no

judgment at all; it is a nullity. That has to be necessarily set aside.

Accordingly, we allow the appeal and set aside the judgment and decree of the learned Subordinate Judge and again remand the first appeal

for a proper and fresh disposal to the Court of the Subordinate Judge, Nagercoil. Learned Counsel for the Respondent (Plaintiff) has stated that

from several points of view, it might be desirable that, instead, a Bench of this Court should hear and dispose of the first appeal itself, by

withdrawal of the appeal to its file under the relevant provisions of law. But that would appear to be a different contemplated proceeding that does

not concern us now. The costs will abide and follow the result of the remanded appeal. Court-fee paid on the memorandum of second appeal will

be refunded to the Appellant.

Ramamurti J.

I had the benefit of perusing the pre-delivery judgment of my learned brother, and I entirely agree with him. In view of the importance of the

points involved in the second appeal I desire to give my reasons in a separate judgment.

The two main questions that arise for decision are : (i) Whether the transfer of the suit, Original Suit No. 51 of 1957, by the District Court of

Nagercoil, to the District Munsif''s Court of Nagercoil was valid and whether the latter Court had jurisdiction to try and dispose of the said suit;

and (ii) Whether the subject-matter in dispute had been properly valued for purposes of jurisdiction, whether the Court of the District Munsif had

pecuniary jurisdiction to try and dispose of the suit and whether the Defendant can successfully urge this objection of jurisdiction, and if so whether

it is well founded on merits.

This litigation had a chequered and protracted career and it must be mentioned at the outset that the aforesaid two objections were not raised

at any stage of this litigation, not even in the memorandum of grounds of second appeal filed in this Court. It is only in December 1963, when the

appeal was about to be heard that the Appellant (the State of Madras) filed a petition (supported by an affidavit of the Collector of Kanyakumari)

seeking permission to raise additional grounds involving objections to the jurisdiction of the District Munsif to try and dispose of the suit as set out

in the two questions formulated above. The Respondent objected to any such permission being granted, but in view of the nature of the objections

and the questions involved, and with a view to avoid unnecessary multiplicity of proceedings, we decided to permit the State to raise these

objections. Of course, the omission or failure on the part of the State to raise the objection in the earlier stages of the litigation will have a material

bearing on the tenability of the objections themselves as will be presently noticed in the course of the judgment. It is necessary to set out the facts

briefly.

The Respondent in the second appeal, one Mr. Simpson, filed the suit, Original Suit No. 51 of 1957, on 26th September 1957, on the file of

the District Court of Nagercoil for a declaration of his title to the properties involved in the suit, of an extent of about 850 acres, and for a

permanent injunction restraining the State of Madras from interfering with his possession of the properties in question. He valued the suit for

purposes of court-fees and jurisdiction at Rs. 1,000 u/s 3(4)(f) of the Travancore-Cochin Court Fees Act II of 1125, and paid a court-fee of Rs.

75 thereon. The plaint was returned by the office raising an objection that Court-fee should also be paid on the consequential relief concerning the

large extent of property. The Plaintiff�s Advocate while representing the plaint on 12th October 1957, drew the attention of the Court that the

main relief was one for declaration, that the prayer for consequential injunction would flow directly from the relief of declaration prayed for, that the

two reliefs need not be separately valued, that as the Plaintiff had not asked for the relief of recovery of possession, there was no need to pay

Court-fee on the market value of the property, and that the Plaintiff�s valuation of the reliefs he claimed in the plaint at Rs. 1,000 u/s 3(4)(f) of

the Travancore-Cochin Court Fees Act was correct. On 26th October 1957, the District Judge directed the plaint to be numbered subject to the

question of Court-fee being considered during the trial of the suit, which was numbered as Original Suit No. 51 of 1957, on his file. Summons had

been taken to the Defendant but on 20th January 1958, the District Judge transferred the suit from his file to the Court of the District Munsif of

Nagercoil where it was numbered as Original Suit No. 88 of 1958, on 27th January 1958.

The State filed two written statements, one on 24th September 1958 and another on 10th September 1959. Surely, at that time the

Government must have been aware of the fact that the suit was filed originally in the District Court and later on transferred to the Munsif''s Court.

Strangely enough, in neither of the written statements, filed by the State was any objection raised either about the legality of the transfer of the suit

from the District Court to the District Munsif''s Court, or the competency and jurisdiction of the Munsif to try and dispose of the suit either on the

ground of any pecuniary jurisdiction or wrong valuation or for any other reason. In other words, the suit was contested only on the merits and no

objection whatsoever was taken questioning the jurisdiction of the District Munsif to try and dispose of the suit.

The suit went against the Government which took up the matter in appeal to the District Court where it was originally numbered as Appeal Suit

No. 164 of 1960 and re-numbered as Appeal Suit No. 86, of 1961 when it was transferred to the Sub-Judge, Nagercoil. The learned

Subordinate Judge came to a, contrary conclusion, allowed the appeal and dismissed the Plaintiffs'' suit-with costs. It is very important to mention

at this stage that when the State filed the appeal to the District Court, it adopted the same valuation of the Plaintiff at Rs. 1,000 and paid the Court-

fee of Rs. 75 with regard to the relief of declaration of title and the consequential relief of injunction. But the memorandum of appeal was returned

by the District Judge with the following endorsement, dated 11th June 1960:

The property is valued at Rs. 1,000 only. The extent of the property comes to 856$ acres:. Hence the property has to be properly valued and

court-fees paid on the said value

The learned Government Pleader Mr. Venkateswara Iyer, who appeared for the State represented the appeal with the following note

endorsed on the memorandum of appeal itself:

The Plaintiff paid court-fee in the lower Court u/s 3, Sub-section (4) Clause (f) of the Travancore-Cochin Court Fees Act II of 1125 valuing the

relief at Rs. 1,000, as prayer A is for declaration and prayer B being a consequential relief. The learned Munsif found on issue ft, that the court-fee

paid is correct. The same court-fee is paid in appeal.

This explanation was accepted and the appeal was taken on file. As observed earlier, it was finally disposed of on merits, dismissing the

Plaintiff�s suit. The Plaintiff took up the matter in second appeal in Second Appeal No. 438 of 1961 and Ramakershnan J., set aside the

judgment and decree of the lower appellate Court and remanded the appeal for fresh disposal in the fight of the points adverted to in his judgment.

At this stage it may be mentioned that in the second appeal the Plaintiff followed the same valuation as in the trial Court and no objection was

raised by the State even at that stage. After remind the learned Subordinate Judge by his judgment, dated 8th August 1962, confirmed the

judgment of the trial Court and dismissed the appeal of the State. It may be mentioned that even when the appeal went back on remand no

objection of any kind was raised, touching the jurisdiction of the Munsif to try and dispose of the suit or of the Subordinate Judge to dispose of the

appeal.

The judgment of the Additional District Munsif shows that the following issue was raised, namely, issue No. 5 : Whether the court-fee paid is

correct and in paragraph 59 of the judgment the District Munsif has recorded his finding as follows:

The Defendant raised the contention in the written statement that the court-fee paid is not correct. At the time of arguments it is conceded by the

Defendant''s Counsel that the Court-fee paid is correct. Hence 1 find this issue in favour of the Plaintiff.

From our scrutiny of the records the State had filed only two written statements, and as observed earlier, there was no reference to any objection

regarding the Court-fees. But that does not matter, as the learned Government Pleader Mr. Venkateswara Iyer while representing the

memorandum of appeal had relied upon this finding of the District Munsif on issue 5 as a correct one on the question of valuation thus entitling the

State to value the relief of declaration and the consequential relief of injunction at Rs. 1,000. This shows that the learned Government Pleader had

conceded before the trial Court accepting the position that the reliefs were correctly valued by the Plaintiff.

It is a matter of regret that the affidavit (filed in support of the application for leave to file additional grounds) should contain reckless

allegations, imputing some fraud or sharp practice on the part of the Plaintiff with regard to the manner in which the Plaintiff valued the reliefs sought

for. Adjectives and adverbs, viz., Respondent-Plaintiff had wilfully and fraudulently and Plaintiff has deliberately put a ridiculously low value on the

relief sought thus fraudulently taking it out...have no meaning or sense in the instant case in view of what has been mentioned above. The most

extraordinary conduct on the part of the State is to have attributed motives to the Plaintiff when the State not only conceded that the Plaintiff�s

valuation was correct, but had also accepted and itself adopted the same when it filed the appeal originally in the District Court and also in the

second appeal in this Court.

I shall now take up the consideration of the first objection that by reason of Section 21 of the Travancore-Cochin Civil Courts Act (Act XXII

of 1951), the only Court which is vested with jurisdiction to try and dispose of suits or proceedings against the Government is the District Court

and no other Court in the State of Travancore-Cochin. Section 21 of the Act delimiting the jurisdiction of the District Court runs as follows:

Section 21. - Notwithstanding anything contained in this Act, suits or other proceedings, by or against the Government or the Government of India,

the Executive Officer of the Shree Padmanabhaswamy Temple, the Travancore Dewaswom Board or the Cochin Dewaswam Board, shall be

instituted in the District Court having local jurisdiction.

This Act was enacted after the merger of the States of Cochin and Travancore. Section 12 of the Act vests jurisdiction in the civil Courts of the

State and u/s 12(4) the jurisdiction of a District Munsif extends to all suits and proceedings not otherwise exempt from his cognisance of which the

subject-matter or value of the subject-matter does not exceed Rs. 3,000, subject to the proviso that the Government by notification may enhance

the jurisdiction of the Munsif up to Rs. 5,000. u/s 3 of Travancore-Cochin Civil Courts Act (Act XXII of 1951), the Travancore Civil Courts Act

II of 1084, and the Cochin Civil Courts Act, (Act III of 1076) were repealed. It may be mentioned that these two Acts which were repealed

contained an analogous provision vesting exclusive jurisdiction in the District Court to try and dispose of suits by or against the Government. After

the formation of the State of Kerala and redistribution of certain areas the necessity arose for the extending the laws in force in the State of Madras

to the areas which were transferred to Madras from the State of Travancore-Cochin as otherwise there will be the anomaly, inconvenience and

hardship arising from two sets of laws operating with different legal consequences though situate in the same State, the State of Madras. With a

view to bring about uniformity in the administration of the laws, Madras Act XXII of 1957, the Madras Transferred Territory (Extension of laws)

Act (hereinafter called the Act) was passed and it also received the requisite assent of the President. The main scheme of the Act is to extend the

Acts (Central and Madras) and the Madras Regulations (specified in the Schedule to the Act) to the transferred area (Kanyakumari district and the

Shencottah taluk) and at the same time to repeal the corresponding law (corresponding to the enactments and the regulations specified in the

schedule aforesaid) which were in force in those areas at the time of the commencement of Madras Act XXII of 1957. The main controversy

centres round the proper interpretation of the provision which extends the operation of the Central and the Madras Acts to the transferred territory

and the provision which repeals the pre-existing law in the then Kanyakumari district and Shencottah taluk. It is necessary to set out here the

relevant provisions:

Section 3. - So much of the enactments specified in the Schedule as is in force on the date of the commencement of this Act in the State of Madras

except in the transferred territory and relates to matters with respect to which the State Legislature has power to make laws for the State is hereby

extended to, and shall be in force in, the transferred territory.

Section 6. - If, immediately before the commencement of this Act, there is in force in the transferred territory any Act, Ordinance, Proclamation,

regulation, order by-law, rule or other laws corresponding to an enactment specified in the Schedule, whether such Act, Ordinance Proclamation,

regulation, order, by-law, rule or other law is in force by virtue of Section 119 of the States Reorganization Act, 1956 (Central Act XXXVII of

1957) or by virtue of any other legislative power, such corresponding law shall, upon the commencement of this Act, stand repealed to the extent

to which the law relates to matters with respect to which the State Legislature has power to make laws for the State.

Schedule

1873 III Madras Civil Courts Act of 1873 (Central Act)

(Other Acts and Regulations specified in the Schedule omitted as not relevant.)

The argument of the learned Advocate-General, on behalf of the State, is that the provision for repeal of the pre-existing law contained in

Section 6 should be restricted in its operation to identical provisions in the existing law and that the words such corresponding law in Section 6

should not be read or construed as the corresponding Act or legislation but as a corresponding provision of law. In substance, his argument is, that

even though by the introduction of the Madras Civil Courts Act of 1873, the Travancore-Cochin Civil Courts Act has been repealed, any special

provision in the Travancore-Cochin Civil Courts Act, will continue to have operation in the transferred territory; so long as there is no such

corresponding special provision in the Madras Civil Courts Act. In other words, his contention is, that the mere fact, that the general scheme and

the pattern of the two Acts the Travancore-Cochin Civil Courts Act and the Madras Civil Courts Act, are the same would not attract the

operation of the repeal provided in Section 6 (in respect of every Section and part of the Cochin Act) but that Section 21 of the Travancore

Cochin Civil Courts Act should itself be regarded as law dealing with a category of suits, suits by or against Government and against

Devasthanams, and that so long as there is no such separate corresponding provision, in the Madras Civil Courts Act, dealing expressly with the

same category of suits, Section 21 of the Travancore-Cochin Act will still continue to govern, vesting the exclusive jurisdiction in the District Court

and at the same time excluding the jurisdiction of any other Court.

Mr. Chellaswami, learned Counsel for the Respondent, contended that the words corresponding law in Section 6 of the Act means the

corresponding legislation having the same pattern and scheme as in Madras Civil Courts Act and that it is not necessary that the Madras Act

should contain individual separate provisions corresponding to such individual similar provisions in the Travancore-Cochin Act. His argument is that

the acceptance of the argument of the learned Advocate-General would completely frustrate and defeat the very object of the Madras

(Transferred Territory) Extension of Laws Act Act XXII of 1957 namely, achieving uniformity in the administration of the Madras laws in the

transferred territory. He further urges that such a view would perpetuate for ever, the anomaly and inconvenience resulting from two parallel

different enactments operating, one in the transferred territory and another in the State of Madras. On a consideration of the rival points of view

urged before us, I have no hesitation in rejecting the argument of the learned Advocate-General as untenable and wholly devoid of substance. The

argument advanced on behalf of the Respondent, in my opinion, clearly follows from the language of the provisions of Madras Act XXII of 1957,

and at the same time effectuates the avowed object with which this legislation was enacted. The contention of the learned Counsel for the

Respondent is clearly well-founded and in my opinion it is impossible to come to any other conclusion.

I shall now take up the question of the relative scope and operation of Section 3 of the Act, Madras Act XXII of 1957 which extended

amongst other things the Madras Civil Courts Act of 1873, to the transferred territory and Section 6 which repealed the pre-existing

corresponding law in that area. The language of Section 3 (extending the enactment to the transferred territory) is plain, unambiguous and

unqualified without any restriction. The evident object of the Legislature in enacting Section 3 is also equally clear. Consequent upon the

redistribution of the areas the necessity for evolving a uniform law had arisen as otherwise there will be great administrative confusion and

inconvenience resulting in two sets of parallel laws operating in the State of Madras. The intention of the Legislature was to sweep away all local

peculiarities and to establish one uniform system and a complete rule on the subject thus securing complete identity and harmony in the application

of the laws in the entire area without any discrimination. The Legislature wanted to avoid two sets of statutes with incompatible and irreconcilable

provisions as that would obviously lead to absurd consequences. In arriving at a proper interpretation of Sections 3 and 6, it is necessary to give

them the meaning which best suits the abovesaid scope and object of the statute. The effect of the extension of the Madras Civil Courts Act is that

in the transferred area as in the rest of the State of Madras the jurisdiction of the Munsif extends to all suits and proceedings of a civil nature of

which the amount or value of the subject-matter does not exceed Rs. 3,000-now Rs. 5,000. No difference is made between suits and proceedings

by or against the Government, and other suits and proceedings of other litigants with the result that after the extension of the Madras Civil Courts

Act if a litigant files a suit against the Government (the subject-matter in dispute being less than Rs. 5,000) the District Munsif is bound to entertain,

try and dispose of that suit. Taking Section 3 of the Madras Act XXII of 1957, it is impossible to come to any other conclusion. The words all

original suits and proceedings of a civil nature in Section 12 of the Madras Civil Courts Act cannot mean some only; we do not find any compelling

context which requires any delimitation on the word all, which is equivalent to each and every. Vide Stroud volume I, third edition, page 112. All is

equivalent to each and every. Reference may also be made to the observations of Greene M.R., in Wellsted''s Will Trusts, In Re Wellsted v.

Hanson (1949) 1 Ch. 296 305 -306:

It appears to me that the phrase is unqualified. One of the two last preliminary observation that I make about that is that the word used is the word

''all'' the powers given are ''all the powers of a tenant for life.'' I do not think it is an exaggeration to say that the word ''all'', in construing a statute,

is extremely recalcitrant, and if the word '' all'' is to be cut down so as to exclude certain things which might come under the description, that must

be done in the clearest possible language. The proper way of construing a word like the word ''all'' in such a context as this is to say that ''all''

means ''all'' and it does not mean ''some'' unless you find a compelling context which forces you to place some limitation on the word.

It is very important to notice that Section 3 of Madras Act XXII of 1957, is not subject to any other provision in the Act. If so much is obvious

from Section 3, it is indeed impossible even to contend otherwise--the question next arises what precisely the words corresponding law in Section

6 convey or signify in the context. In arriving at the true meaning of these words, and the scope of Section 6, we should bear in mind the well

settled rule of interpretation of statute that the statute should be construed as a whole and every effort should be made to avoid any inconsistency

or repugnancy between one Section and other parts of the statute. The correct rule of interpretation is to place a consistent rational and probable

meaning on the whole of the sections by reading them together. In the interests of harmony and consistency and to make the entire statutory

scheme effectual it is necessary that no part of the statute should be rendered insignificant. In this case the application of this rule of harmonious

construction of the several sections of a statute is important and of particular significance. In my opinion the juxta-position of Sections 3 and 6 of

the Act and their avowed object and purpose, leave no room for doubt that the whole of the Travancore-Cochin Civil Courts Act had been

repealed and no part of it would have any subsisting operation after Madras Act XXII'' of 1957, had come into force. Sections 3 and 6 are

inseparably connected in the sense that when the enactments specified in the Schedule are extended u/s 3 the repeal provided in Section 6 is the

direct consequence of the operation of Section 3.

Section 6 should not be read apart from and in isolation of Section 3. The obvious fallacy underlying the argument of the learned Advocate-

General can be seen by taking the following instance. After the enactment of Madras Act XXII of 1957, if a suit is filed against the Government in

the Munsif''s Court the Munsif is bound to entertain the same by reason of Section 3 of this Act and Section 12 of the Madras Civil Courts Act.

As observed earlier, Section 3 is not subject to any saving Clause and is unqualified in its operation. If according to the learned Advocate-General

Section 21 of the Travancore-Cochin Civil Courts Act were to subsist and survive even now, the District Court alone would be competent to

entertain such a suit and this situation will result in the existence of mutually conflicting jurisdiction. The very evil will ensue which the Madras Act

XXII of 1957, was intended to prevent namely want of uniformity in the laws throughout the State of Madras. As pointed out in Maxwell On

Interpretation of Statutes, eleventh edition, at pages 160-161.

If the co-existence of two sets of provisions would be destructive of the object for which the-later was passed, the earlier would be repealed by

the later.

A complete repeal of the earlier Act has to be necessarily inferred from its repugnancy to the general scheme and course of the subsequent

legislation.

Dealing with the doctrine of repeal of earlier legislation by a subsequent legislation the matter is put thus in XXXVI Halsbury, page 466

paragraph 709:

If, however, provisions are enacted which cannot be reconciled with those of an existing statute, the only inference possible is that Parliament,

unless it failed to address its mind to the question, intended that the provisions of the existing statute should cease to have effect, and an intention so

evinced is as effective as one expressed in terms.

Reference may also be made to the statement of the law at page 474 as it is directly applicable to the instant case:

A saving of any nature in a statute is void if it is repugnant to the substantive provisions thereof; and if, therefore, a statute introduces new

provisions and repeals existing ones with savings, the savings will not be effective to preserve anything the continued existence of which is

incompatible with the new provisions.

It would seem that, in principle, a saving may be made not only expressly, but also by necessary implication.

In this connection reference may also be made to the observations of Collins M.R., R In re (1906) 1 Ch. 730, 736 dealing with the repeal of

the earlier Acts by later Acts:

There were one or two other cases cited which have an important application to the present case, that is to say, cases where you find in an Act a

repealing Clause followed by a saving clause. There you have to see how far the two enactments can co-exist. It seems to me that the principle laid

down in those cases is applicable to the present case. And that principle is this : Where you have a repeal and you have also a saving clause, you

have to consider whether the substituted enactment contains anything incompatible with the previously existing enactment. The question is, Aye or

No, is there incompatibility between the two? And in those cases the Judges, in holding that there was a saving clause large enough to annul the

repeal, said you must see whether the true effect was to substitute something incompatible with the enactment in the Act repealed; and that, if you

found something in the repealing Act incompatible with the general enactments in the repealed Act, then you must treat the jurisdiction under the

repealed Act as pro tanto wiped out. That is settled by the case of In re Busfield. Whaley. Busfleld (1986) 32 Ch. D. 123 and Hume v. Somerton

(1890) 25 Q.B.D. 239. In both those cases the judges relied upon the incompatibility of the substituted enactments with old enactments, and held

that in consequence of that incompatibility the jurisdiction under the old Act could not remain; but they were prepared to hold that the saving clause

would, if there were no incompatibility between the enactments, have the effect of annulling the repeal.

In Craies On Statutes (sixth edition), dealing with the maxim Leges Posteriores Priores Contrarias Abrogamy (Brooms Legal Maxims 347)

meaning, Later laws repeal earlier laws inconsistent therewith, the learned author observes at pages 371-372 as follows:

The prior statute would, I conceive, be repealed by implication if its provisions were wholly incompatible with a subsequent one or if the two

statutes together would lead to wholly absurd consequence or if the entire subject-matter were taken away by the subsequent statute.

In this case the repeal of the earlier Act is made by express provision in the later Act and the limits of the doctrine of implied repeal do not come

into play. Again, there is no saving clause in the express provisions for repeal contained in Section 6. Even if Section 21 of the Travancore-Cochin

Civil Courts Act is to be regarded as a special enactment, as it were, dealing with a category of suits, suits by or against the Government, the same

would stand repealed by reason of Sections 3 and 6 of Madras Act XXII of 1957. On this topic it may be useful to refer to the following

statement of the law in Craies on Statutes (sixth edition), pages 379, 380 and 381:

Special enactment repealed by implication if utterly repugnant to subsequent general Act -- But the rule must not be pressed too far, for, as

Bramweil L.J. said in Pellas v. Neptune Marine Insurance Company (1879) 5 C.P.D. 34 a general statute may repeal a particular statute. And if a

special enactment, whether it be in a public or a private Act, and a subsequent general Act are absolutely repugnant and inconsistent with one

another, the Courts have no alternative but to declare the prior special enactment repealed by the subsequent general Act. Thus in Bramston v. The

Mayor of Colchester 110 E.R. 856 it was held that the provisions of a local Act, under which certain arrangements had been made for maintaining

borough prisoners in country gaols, were repealed by Section 18 of the General Prisons Act, 1842, ''for '' said Campbell C.J., I think it was the

intention of the legislature to sweep away all local peculiarities though sanctioned by special Acts, and to establish one uniform system except in so

for as there are express exceptions''; and Wightman J. added. It was intended to make one general law superseding all local laws as to prisons and

repealing all local Acts''....And in Charnock v. Merchant (1900) 1 Q.B. 474 it was held that Section 1 of the Criminal Evidence Act, 1898, was

intended to establish a single rule for all criminal Courts and cases, and to supersede the special rules as to evidence by the Defendant in criminal

cases created by previous statutes in the case of particular specified offences. And Channeil J. said:'' It is of great importance to hold that the

Criminal Evidence Act, 1898, has established one rule to be observed in all criminal Courts and cases. The sixth Election amply establishes that.

It may be interesting to notice that in Bramston v. The Mayor of Colchester 119 E.R. 856 there was a change of the boundaries of boroughs. The

question arose how far the prior special Act was repealed by the later general Act. The following observations of ERLE J., at page 859 apply to

the instant case.

It is clear to my mind that this case is within the general enactment, and not within the exception ; for there was no special contract. I also agree

that the intention of the Legislature was to repeal all special usages as to particular gaols, whether depending on local customs, or on local Acts

There was good reason for this, as the boundaries of boroughs had been recently altered, and it was convenient to make one general law for all

boroughs.

I may also refer to the case of Daw v. The Metropolitan Board of Works 142 E.R. 1104. The following head-note brings out the purport of the

decision in the case as to how two inconsistent statutes cannot co-exist:

Where two statutes give authority to two public bodies to exercise powers which cannot consistently with the object of the legislature co-exist, the

earlier must necessarily be repealed by the later statute--The 145th Section of the City of London Sewers Act, 1848--as to the naming Of streets

and numbering of houses in the city of London, is repealed by the general provision for that purpose contained in the Metropolis Local

Management Act, 1855....

Erle C.J., explained the position thus at page 1109:

Where two statutes give authority to two public bodies to exercise powers which cannot consistently with the object of the legislature co-exist, the

earlier must necessarily be repealed by the later statute. The purpose of numbering houses is, to distinguish them from each other; and, if the

commissioners of sewers of the city of London and the metropolitan board of work had each the power to alter the numbers, that purpose would

be frustrated. I am therefore of opinion that the two powers cannot co-exist and that the act of 1885 overrides that of 1848.

Willes J., put the matter thus at page 1111:

The same objects are dealt with in both Acts of Parliament. The powers conferred by the two are substantially, if not strictly, the same. So soon as

you find the legislature is dealing with the same subject matter in both acts, so far as the later statute derogates from and is inconsistent with the

earlier one, you are under the necessity of saying that the legislature did intend in the later statute to deal with the very case to which the former

statute applied. I therefore entirely agree with my Lord that the question is reduced to this--does the 141st Section of the Metropolis Local

Management Act, aided by the light thrown upon it by Section 260, override and control the 145th Section of the City of London Sewers Act,

1848? It appears to me that it does, and therefore that our judgment in this case should be for the Defendants.

I shall now refer to the recent decision of the Supreme Court in Anant Prasad v. State of Andhra Pradesh (1964) 1 S.C.R. 844 (Supp.) which

dealt with Section 6 of the Part B States (Laws) Act of 1951, containing provisions analogous to Section 6 of Madras Act XXII of 1957. In that

case the question arose whether the Hyderabad Endowments Regulations, 1940 stood repealed by the extension of the Charitable Endowments

Act, VI of 1890 and the Chritable Religious Trusts Act, XIV of 1920, to the Part B State of Hyderabad by reason of Section 6 of the Part B

States (Laws) Act. As regards the first enactment, Charitable Endowments Act, VI of 1890, the Supreme Court held that that Act definitely

excludes religious public trusts from its purview and that whatever may be its effect on trusts other than religious trusts the Hyderabad Endowments

Regulation of 1940, in so far as it applied to religious trusts cannot be held to have been repealed by the extension of the Charitable Endowments

Act. On the question as to how far the extension of the Charitable and Religious Trusts Act, XIV of 1920, would have the effect of repealing the

Hyderabad Endowments Regulation of 1940, the Supreme Court took the view that the provisions of Act XIV of 1920, are confined to a very

limited purpose and do not touch very many important aspects of a religious trust, while the Hyderabad Endowments Regulation of 1940, is a

much wider enactment providing for various aspects concerning a religious trust and religious endowment. In view of this great difference in the

area of operation of the two legislations and the dissimilarity in many of the provisions, the Supreme Court held that the earlier Hyderabad

Regulation of 1940, could not be held to be repealed by the Charitable and Religious Trusts Act, XIV of 1920. This decision in no way supports

the case of the State of Madras; the observations therein show that if there is clear overlapping and if both the legislations cover the same aspect or

field, the latter would necessarily repeal the earlier.

Reference may next be made to the recent decision of the Supreme Court in State of Orissa Vs. M.A. Tulloch and Co., . In that case the

question arose as to how far the Orissa Mining Areas Development Fund Act of 1952, was superseded by the Mines and Minerals Regulations

and Development Act of 1957 (Central Act). Even though the point for decision related to the scope of Entry No. 23 of the State List as against

the scope of Entry No. 54 of Union List some of the observations on the question of repugnancy of statutes are relevant to the instant case. The

State had the power under entry 23 to legislate regulating mines and minerals development, subject to Entry No. 54 of Union List under which in

regard to Mines and Minerals development the Union can legislate if authorised by Parliament to do so as expedient in the public interests. The

Orissa Act of 1952, was concerned with the raising of a fund for providing for amenities to labour and other residents in mining areas while the

Central Act of 1957, was concerned not with any social purposes as in the Orissa Act, but with the development of the mineral resources of the

country. The argument on behalf of the State of Orissa was that the object to be attained by the two enactments was so dissimilar that there was

no common area covered by the two enactments as to attract the plea of repugnancy. This argument was not accepted. It was held that under the

Central legislation the entire field of mineral development was taken over, which would include the provision of amenity to workmen employed in

the mines and, therefore, a direct conflict or repugnancy arose between the Orissa Act and the Central Act. In this view the Orissa Act was held to

have rendered ineffective or superseded by the Central enactment. The Supreme Court observed that repugnancy would arise when two

enactments within the competence of the Legislature collide and that for the purpose of determining this conflict and repugnancy the test is not by

finding out whether inconsistency is demonstrated by a detailed comparison of the provisions of the two statutes, but by the mere existence of the

two pieces of legislations. Applying this test to the instant case the answer should be clearly against the Appellant.

I shall briefly refer to the decisions relied upon by the learned Advocate-Genera in the course of his arguments, all cases arising under the Part

B State (Laws) Act of 1951. In Periyakan and Anr. v. The Government of Mysore AIR 1952 Mys. 84 it held that the Mysore Mines Act was not

ipso facto superseded by Indian Mine was Act of 1923. The judgment is a very brief one and there is no discussion throwing any light on the point.

There is no reference in the judgment to the main scheme of the Mysore Mines Act and the Indian Mines Act and their salient features to show the

dissimilarity between the two Acts. The judgment proceeds on the admission that there was nothing in the Indian Act which corresponds to the

provisions in the Mysore Mining Act and that the two Acts are not identical and the purpose of each is not the same. In the first place the question

arises whether this can be regarded as the correct statement of the law after the recent judgment of the Supreme Court referred to above.

Secondly the purposes in the two Acts there, were not the same, while in the instant case the purpose of the Madras Civil Courts Act and the

Travancore-Cochin Civil Courts Act is one and the same. It is thus clear that this decision of the Mysore High Court does not help the contention

of the State.

The next decision relied upon on behalf of the Appellant is Khandu v. State AIR 1954 Pepsu 113. In that case the Patiala Penal Code made

slaughtering or killing of bullocks and cows an offence punishable with imprisonment for seven years. Later on the Indian Penal Code was

extended to the erstwhile Patiala State. The accused who was sought to be prosecuted for the offence of slaughtering or killing a cow filed an

application for quashing the proceedings on the ground that the Patiala Penal Code stood repealed as a result of Section 6 of the Part B States

(Laws) Act of 1951. But this argument was not accepted by the Court. The learned Judge took the view that the Indian Penal Code did not

exhaust all the offences and that the killing of cows was a distinct offence under the Patiala Penal Code and as there was no corresponding law in

the Indian Penal Code, the (sic) of cows would still be an offence. The Court took the view that the particular sections in the Patiala Penal Code,

Sections 287, 288 and 289, became a separate law from the Indian Penal Code and would not be affected by the extension of the Indian Penal

Code. This decision cannot help the Appellant as in the instant case the Madras Civil Courts Act covers in express terms the particular aspect or

situation. In the Patiala case the Indian Penal Code did not deal with a particular category of offence, that is cow slaughter. The observations in the

above case themselves indicate that if the latter enactment contained provisions touching that particular aspect covered by the earlier Act the pre-

existing law would stand repealed.

In Augusthy v. Ali ILR (1956) Tra. Co. 1078 it was held that the Travancore Christian Succession Act was not repealed by the introduction of

the Indian Succession Act of 1925, into the State of Travancore-Cochin by the Part B States (Laws) Act of 1951. If the ratio decidendi of this

decision is borne in mind it will at once be seen that this decision does not support the contention the State. The learned Judges held that the

Travancore Christian Succession Act was not a corresponding law within the meaning of Section 6 but on the other hand it became part of the

Indian Succession Act itself by reason of Sub-section (2) of Section 29 of the Indian Succession Act of 1925. The learned Judges held that by

reason of Section 29(2) of the Indian Succession Act the Travancore Christian Succession Act would be any other Law for the time being in force

within the meaning of Section 29(2) of the Indian Succession Act and, therefore, the Travancore Christian Succession Act would continue to

operate notwithstanding Section 6 of the Part B States (Laws) Act of 1951. It is sufficient to refer to the following observations at page 1083 to

bring out he basis of the decision:

If the effect of the saving clause in Section 29(2) of the Indian Succession Act is to adopt all laws for the time being in force relating to intestate

succession as part of the Indian Succession Act as regards intestate succession, the Travancore Christian Succession Act should be regarded as

the law relating to intestate succession under the Indian Succession Act so far as Christians in Travancore are concerned. In this view of the matter,

the Travancore Christian Succession Act can in no sense be regarded as law corresponding to Part V of the Indian Succession Act. It has to be

regarded as forming part of the Indian Succession Act. If the Travancore Christian Succession Act cannot be regarded as law corresponding to

Part V of the Indian Succession Act it is clear that it will not stand repealed by Section 6 of the Act III of 1951 (Central.) We, therefore, agree

with the opinion of the Court below that the Travancore Christian Succession Act has not been repealed by reason of the introduction of the Indian

Succession Act into the Travancore-Cochin State by Act III of 1951.

It will be seen that in that case the scope of Section 6 of the Part B States (Laws) Act of 1951, came up for discussion in an entirely different

context.

I may next refer to another decision of the Supreme Court in Municipal Council Palai Vs. T.J. Joseph and Others, . In that case the question

arose about the legality of the resolution of the Municipal Council, Palai, levying certain charges for buses passing through the Municipal limits and

also imposing restrictions upon bus stands and halting places for buses. That case dealt with the aspects of the doctrine of implied repeal of an

earlier special enactment by a later general enactment. On the facts of that case it was held that Sections 286 and 287 of the Travancore District

Municipalities Act (the earlier Act) were not repealed by implication by virtue of the provisions of Section 72 of the (later Act) Travancore-Cochin

Motor Vehicles Act of 1125. The statement of the law in Daw v. The Metropolitan Board of Works 142 E.R. 1104 referred to earlier was

considered in detail. After the examination of the relevant case law and the general principles, the Supreme Court held that there was no rule of law

to prevent repeal of a special statute by a later general statute and that where the provisions of the special statute are wholly repugnant to the

genera statute, it would be possible to infer that the special statute was repealed by the general enactment. The following statement from Crawford

On Statutory Construction at page 631, paragraph 311 was referred to with approval at page 96:

There must be what is often called such a positive repugnancy between the two provisions of the old and the new statutes that they cannot be

reconciled and made to stand together. In other words they must be absolutely repugnant or irreconcilable. Otherwise, there can be no implied

repeal for the intent of the legislature to repeal the old enactment is utterly lacking.

Finally the law was summed up as follows at page 98:

It must be remembered that at the basis of the doctrine of implied repeal is the presumption that the legislature which must be deemed to know the

existing law did not intend to create any confusion in the law by retaining conflicting provisions on the statute book, and, therefore; when the court

applies this doctrine it does no more than give effect to the intention of the legislature ascertained by it in the usual way, i.e., by examining the scope

and the object 01 the two enactments, the earlier and the later.

The further question which is to be considered is whether there is any repugnancy between the old and the new law. In order to ascertain whether

there is repugnancy or not this Court has laid down the following principles in Deep Chand v. The State of Uttar Pradesh (1959) 2 S.C.R. 8, 43.

Whether there is direct contrast between the two pro visions;

whether the legislature intended to lay down an exhaustive code in respect of the subject matter replacing the earlier law;

whether the two laws occupy the same field.

The above statement of the law applies to our case a fortiori as it is not a case of an implied repeal, but an express provision of repeal.

To sum up, therefore, the words corresponding law in Section 6 of Madras Act XXII of 1957, should take its colour from and be controlled

by the scope of Section 3 of the Act read with Section 12 of the Madras Civil Courts Act. The words corresponding law cannot be understood as

corresponding to separate provisions of each enactment.

In Stroud''s Judicial Dictionary, third edition, volume I, page 645 the learned author says to correspond does not usually or properly mean to

be identical with but to harmonise with or to be suitable to. I am clearly of the opinion that the words corresponding law are used only in this sense.

It must also be noticed that the acceptance of the argument of the learned Advocate-General would result in utter chaos and intolerable results.

The principle of interpretation which applies to Section 6 of the Madras Act XXII of 1957, equally applies to Section 6 of the Part B States

(Laws) Act of 1951. Numerous Indian enactments have been extended to the Part B States and it is obvious that the prior enactment in the Part B

States, even though of the same pattern (like the Law of Limitation, Transfer of Property Act, etc,) may not contain identical provisions as in the

Indian enactments extended to the Part B States. According to the argument of the learned Advocate-General whenever one notices any

difference in individual relevant relative provisions of the pre-existing enactments in Part B States and the Central enactments, the former would

prevail. It is sufficient to state the argument to reject it as unsustainable. I, therefore, hold that Section 21 of the Travan-core-Cochin Civil Courts

Act will have no operation after Madras Act XXII of 1957.

I shall now take up the second question as to whether the suit has been properly valued for the purposes of jurisdiction and whether the

District Munsif had pecuniary jurisdiction to try and dispose of the suit. The argument of the learned Government Pleader is that when the Madras

Civil Courts Act of 1873, was extended to transferred territory in 1957, Section 14 of the Civil Courts Act had been omitted from the Madras

Civil Courts Act, by reason of Section 84 of the Madras Court Fees Act, XIV of 1955, and that the valuation of the subject-matter in dispute for

purposes of jurisdiction u/s 12 of the Civil Courts Act should be as provided in Section 25 of the Madras Court Fees Act of 1955. In substance

his argument is that Section 25 of the Court Fees Act has taken the place of Section 14 of the Civil Courts Act and the rules and the notifications

framed thereunder, and then in existence, and that when the Civil Courts Act was extended to the transferred territory the statutory provision or the

rule which would govern the valuation of suits for purposes of jurisdiction in the State of Madras would equally apply to suits in the transferred

territory, even though there is no legislation extending the operation of the Madras Court Fees Act of 1955, as such to the transferred territory. On

an examination of the relevant statutory enactments both in Madras, as well as in the transferred territory, I am of opinion that there is no substance

in this contention of the learned Government Pleader. I shall first examine the position with regard to the State of Madras, excluding the transferred

territory.

The first enactment is the Court Fees Act VII of 1870, as amended in Madras. u/s 7(iv)(c) if the suit is for a declaration and consequential

relief relating to immovable property the valuation should be not less than half the value of the immovable property calculated on the basis of twenty

times the cist where the suit relates to land or garden. Vide Government Notification, dated 1st November 1943. If the suit is for possession of

land or garden u/s 7(v) the value of the subject-matter of the suit will be twenty times the revenue payable.

The next enactment is the Madras Civil Courts Act of 1873, Section 12 (as now amended) provides that the value of the subject-matter,

thereby meaning the value of the property involved, will be the value for purposes of jurisdiction, so that without anything more, if the subject-

matter in dispute concerns properties over the value of Rs. 5,000 the suit should be instituted in the Sub-Court. But Section 14 of the Civil Courts

Act has provided that if the subject-matter of any suit is land, house or garden, its value for purposes of jurisdiction shall be fixed in the manner

provided by the Court Fees Act of 1870, Section 7(v) with the result that for purposes of jurisdiction it is not the real market value of the property

as specified in Section 12, but the value as determined u/s 7(v) of the Court Fees Act wherever the suit relates to a house, land or garden.

The next enactment is the Suits Valuation Act, Act III of 1887. Section 3 empowers the State Government to make rules for determining the

value of the land for purposes of jurisdiction in the suits mentioned in the Court Fees Act of 187C, Section 7, paragraphs 5 and 6. Till 1955 the

position, therefore, was that if a case does not come u/s 14 of the Civil Courts Act read with Section 3 of the Suits Valuation Act of 1887 and

Section 7(v) of the Court Fees Act, the subject-matter in dispute will have to be valued on the basis of the market value for purposes of

jurisdiction even though for purposes of Court fees the valuation may be different. After the Madras Court Fees Act of 1955, the position is that,

with regard to suit for land, for declaration of title and for possession or for consequential relief the valuation for purposes of Court fees and

jurisdiction will be as provided in Sections 7, and 25 of the Court Fees Act. Section 53 of the Court Fees Act of 1955, provides that in the

absence of specific provision the value for purposes of jurisdiction shall be the same as the value for purposes of Court fees determined under the

Court Fees Act of 1955. Section 87 provides for the repeal of the Suits Valuation Act, 1887, in its application to the State of Madras. From this it

will follow that if the suit concerns land the value for purposes of jurisdiction would not be the real market value of the land but it would be based

upon thirty times the cist as provided u/s 7 of the Court Fees Act of 1955.

The question is whether this rule determining the value of the subject matter for purposes of jurisdiction would apply in the transferred territory

when the Madras Civil Courts Act alone had been extended to the transferred territory without at the same time extending the Madras Court Fees

Act of 1955.

It is true, that as Section 14 of the Civil Court Fees Act had been repealed, a litigant in the transferred territory would have to value the

subject-matter in dispute u/s 12 normally based upon the market value. Reference may be made to the Bench decision of this Court in Vasireddi

Veeramma V. Butchayya ILR (1926) Mad. 646 in which it was held that a suit for declaration of the factum of the validity of adoption without any

consequential reliefs regarding lands or houses likely to be affected by the declaration should be valued for purposes of jurisdiction u/s 12 of the

Madras Civil Courts Act on the basis of the market value of the lands or houses likely to be affected by such declaration, and that it cannot be

valued either according to the Plaintiff�s pleasure or according to the valuation under the Court Fees Act. The Bench took the view that if the

statutory notional value is not applicable to a case the words value of the subject-matter should be understood as market value of the subject-

matter likely to be affected as a result of the decision in the litigation. The ratio of this decision would not, however, apply to the instant case as the

matter does not stop with Section 12 of the Civil Courts Act.

But the Plaintiff has at the same time the right to value the subject-matter for purposes of jurisdiction as per the Travancore-Cochin Court Fees

Act of 1125, read with the Travancore-Cochin Suits Valuation Act of 1125. u/s 3(iv)(f) of the Travancore-Cochin Court Fees Act for purposes of

court fees, the Plaintiff is entitled to value the relief as he likes where he seeks a declaration of title to lands and consequential relief. Section 6 of

the Travancore-Cochin Suits Valuation Act of 1125, provides that in suits other than suits referred to in Sub-clauses (a) and (c) of Clauses (v) and

(ix) and Sub-clauses (2) and (10) of Section 3 of the Travancore-Cochin Court Fees Act, the value as determinable for the computation of court

fees and the value for purposes of jurisdiction shall be the same. The result therefore, is that so far as the transferred territory is concerned

valuation for purposes of jurisdiction would not be on the basis of the market value u/s 12 of the Civil Courts Act but only upon the valuation for

purposes of court fees determined under Travancore-Cochin Court Fees Act, Section 3(iv)(f)read with Sections 3 and 6 of the Travancore-

Cochin Suits Valuation Act. In other words, the subject-matter for purposes of jurisdiction is the amount at which the Plaintiff values the relief

regardless of the market value of the property concerning which the suit is filed. It must not be forgotten that when the Civil Courts Act was

extended to the transferred territory, Madras Court Fees Act of 1955, was not extended to the transferred territory, evidently because the

Legislature thought that in the transferred territory the Travancore Cochin Court Fees Act and the Travancore Cochin Suits Valuation Act should

still continue to be in operation. If one can speculate it may be because the Legislature thought that the rate of Court fee contained in the Madras

Court Fees Act of 1955, would either be unsuitable to or excessive in the transferred territory. It is not a case of omission, but it is a case in which

the Legislature has deliberately allowed the Travancore-Cochin fiscal enactments in the transferred territory to have continued operation. When the

Travancore-Cochin Court Fees Act and the Travancore Cochin Suits Valuation Act are still in force in the transferred territory it is impossible to

apply the rule contained in Sections 7, 6 and 53 of the Madras Court Fees Act of 1955, especially when the latter Act has not been extended to

the transferred territory. As observed earlier there is no lacuna or omission and, therefore, there can be no question whatsoever of applying the

principle or the scheme underlying the Madras Court Fees Act of 1955, if not the Act itself. I am, therefore, of the clear opinion that the value

adopted by the Plaintiff for purposes of court fees and jurisdiction at Rs. 1,000 k correct and the District Munsif has undoubted jurisdiction to try

and dispose of the suit whatever may be the real market value of the properties involved in the litigation.

On this portion of the case the learned Government Pleader relied upon the decision of the Privy Council in Ma Mi and another v. Kallandar

Ammal (No. 1) ILR (1926) Rang. 7 (P.C.) where several provisions of the Transfer of Property Act were extended to the Pegu district in Burmah

and the question arose whether a gift under the Muhammadan law would be valid merely because it was made by a registered instrument as

provided u/s 123 without being followed by delivery of possession. The Privy Council held that the rule in Section 129 of the Transfer of Property

Act that the provisions of Chapter VII should not be deemed to affect any rule of Mohammadan law would govern the case and that without

delivery of possession there cannot be a valid gift under Muhammadan law. We are unable to see how this decision supports the contention of the

Government.

The learned Advocate-General also relied upon the judgment of the Supreme Court in Rajnarain Singh Vs. The Chairman, Patna

Administration Committee, Patna and Another, . In that case Section 3 of the Bihar and Orissa Act I of 1915, empowered the local Government

u/s 3(1)(f) to extend any of the provisions of the Act to Patna. The Supreme Court held that when the Section of the Act was selected for

application it must be done so as not to affect any change of policy or any essential change in the Act regarded as a whole. A perusal of the

judgment shows that the Supreme Court only dealt with the scope of a delegated legislation applying the law as declared by the Privy Council in

Empress v. Burah I.L.R (1878) Cal. 172 (P.C.). There is nothing in this decision of the Supreme Court which is of relevance to the instant case.

Even if the objection of the Defendant as regards the valuation of the Plaintiff is well founded on merits the objection still remains that it would

not be open to the State to urge this objection at this belated stage. The argument of the Plaintiff that the Defendant is precluded by the doctrine of

res judicata and the principles of estoppel as well as by reason of Section 21 of the CPC and Section 8 of the Travancore-Cochin-Suits Valuation

Act is clearly well founded. Reference may first be made to the decision of the Supreme Court in Kiran Singh and Ors. v. Chaman Paswan and

Ors. (1956) 1 S.C.R. 117 as it completely supports the contention of the Plaintiff. In that case, the Plaintiff filed a suit in the Sub-Court, Monghyr

for recovery of possession against the Defendants who claimed occupancy rights. The Plaintiff valued the relief of possession at Rs. 1,950. The

Subordinate Judge dismissed the Plaintiff�s suit and on appeal by the Plaintiff, the District Judge of Monghyr, confirmed the decision of the trial

Court. The Plaintiff took up the matter in second appeal to the High Court at Patna. In the High Court, the stamp reporter raised the objection

regarding the valuation in the plaint and after enquiry the Court determined that the correct valuation of the suit was Rs. 9,980. The Plaintiff

thereupon paid the additional court fee and then raised the contention that on the revised valuation the appeal from the decree of the Subordinate

Judge would lie not to the District Court but to the High Court and that the judgment of the District Court should be ignored. This objection was

overruled by the Patna High Court and on an appeal to the Supreme Court the decision of the High Court was affirmed. The Supreme Court relied

upon Section 11 of the Suits Valuation Act and Section 21 of the CPC and also applied the principle that a party who has resorted to a forum of

his own choice on his own valuation cannot himself be heard to complain of any prejudice. The Supreme Court observed that the rule of law 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, is not of universal application, but that it would be subject to the provisions of Sections 21 and 99 of the CPC and Section 11 of

the Suits Valuation Act. It was further held that the policy underlying Section 11of the Suits Valuation Act as also Sections 21 and 99 of the CPC

is that when a case has been tried by a Court on the merits and judgment rendered it should not be liable to be reversed purely on technical

grounds unless failure of justice has resulted. The policy of the Legislature has been to treat objections as to jurisdiction both territorial and

pecuniary as technical and not open to consideration by an appellate Court unless there has been prejudice on the merits. On the question whether

the Appellant in that case suffered any prejudice within the meaning of Section 11 of the Suits Valuation Act, the Supreme Court held that the

prejudice envisaged by the Section was something other than the appeal being heard in a different forum. The matter was put thus at page 126:

The question, therefore, is, can a decree 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 (1923) ILR 46 Ma. 631, (F.B.), Mool Chand Motilal v. Ram Kishen ILR (1933)

All. 315 and Ramdeo Singh v. Raj Narain ILR (1948) Pat. 1091 (F.B.) In our judgment, the opinion expressed in these decisions is correct.

Indeed, it is impossible, on the language of the Section to come to a different conclusion. If the fact of an appeal being heard by a Subordinate

Court or 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 Subordinate 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 affected the disposal of the suit or appeal on its merits would become wholly useless.

These words clearly show that the decree passed in such cases are liable to be interfered with in an appellate Court, not in all cases and as a

matter 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 (sic) to the surprising result that the Section was

enacted with the object of curing defects of jurisdiction arising by reason of over-valuation 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 heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined.

While adverting to the equitable jurisdiction of the Court u/s 11of the Suits Valuation Act, the Supreme Court observed as follows at page

130:

It would be an unfortunate state of the 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 estopped from setting up want of jurisdiction in the Court by the fact of their having themselves invoked it. That however, is not the

position u/s 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 (sic) who had acquiesced therein.

These observations clearly apply to the instant case as the State of its own choice not only filed the appeal in the District Court, and in the High

Court, but at the same time adopted and accepted the Plaintiff�s valuation of the subject-matter in dispute. I have no hesitation in holding that the

State would be precluded from raising the present objection as to jurisdiction.

In this connection, I may also refer to the Full Bench decision in Kelu Achan v. Cheriya Parvathi Nethiar ILR (1923) Mad. 631 (F.B.)

(referred to with approval in the decision of the Supreme Court referred to earlier). In that case, the Plaintiff filed a suit in the Munsif''s Court

valuing the relief at less than Rs. 3,000. The Defendant''s objection as to the valuation was overruled and the suit was decided on the merits in

favour of the Plaintiff. The Defendant on appeal to the District Judge attacked the decision of the Munsif both on the preliminary point of

undervaluation and on the merits of the case. On the dismissal of his appeal by the District Court, the Defendant preferred a second appeal and

contended that as a result of the under-valuation the Defendant was deprived of his right of first appeal on the facts to the High Court. The Full

Bench negatived this contention and held that from the mere fact that a party was deprived of the right of appeal on facts before the High Court he

cannot be held to have suffered a prejudice within the meaning of Section 11 of the Suits Valuation Act. From this it follows that it is not open to

the State to urge the complaint that it had been prejudiced in having been denied a right of first appeal to the High Court.

Reference may next be made to the Bench decision of this Court in Katamberi Chuzhali Bhagavati Amma''s owner, Uralan and Manager

Samanthan Karakkattitathil Kammaran Nambiar (since deceased) and Another Vs. Valia Ramunni, Karnavan and Manager now the Santikkaran

of Parachinikkatavath Mattappurakkal Muthappan Deity, styled as ""Matayan"" and Others, . In that case the Plaintiff filed a suit in his capacity as

karnavan of his tarwad as well as the Uralan of Goddess Bhagawathy for recovery of possession of the properties. The Defendant raised a plea of

res judicata that this claim was substantially in issue in a previous litigation. The Plaintiff�s suit was dismissed after upholding this plea of res

judicata. On appeal to the High Court it was contended that the prior decision would not operate as res judicata as the subject matter in dispute in

the earlier litigation exceeded the pecuniary jurisdiction of the District Munsif in whose Court the suit was laid. In rejecting this argument

Venkatasubba Rao J., put the matter thus at page 197:

It is a fundamental rule that a judgment of a Court without jurisdiction is a nullity and that want of jurisdiction cannot be waived. To this rule there

are two exceptions recognized by the Indian Law; Section 11 of the Suits Valuation Act deals with defects of jurisdiction due to wrong pecuniary

valuation and Section 21 Code of Civil Procedure, makes a like provision when the place of suing has been wrongly chosen. But in another way,

there is a distinction between inherent in competency in a Court and irregular exercise of jurisdiction and under the Indian Statute Law, the two

defects, mentioned above are treated as irregularities which can be waived.

The learned Judge also observed that want of territorial or pecuniary jurisdiction cannot be treated as amounting to inherent incompetency as

such a view would be incompatible with the idea underlying Section 21, CPC and Section 11 of the Suits Valuation Act, and that the aforesaid

provisions embody the basic principle that these defects of jurisdiction are not fundamental in character and are no more than irregularities in the

exercise of jurisdiction. It was also held that the Plaintiff himself who on the former occasion invoked the jurisdiction of the Court should not be

allowed to raise the objection. Newsam J., stated the law in these terms at page 203:

But as I have said, parties have been given a limited right to choose the forum which shall hear their causes and when once they hive chosen they

must abide by their choice. If it were otherwise, Courts would be at the mercy of parties litigant, would become mere arenas for preliminary trials

of strength. It has been argued further that Section 11, Suits Valuation Act and Section 21, Code of Civil Procedure, must be strictly construed.

They bar the plea being taken in the subsequent stages of the same suit; but do not in terms bar another suit. This argument I have already

answered. As soon as it is realised that these two sections are applications of the general principles of constructive res judicata to the valuation of

suits and to the place of suing, it becomes rather absurd to attempt to detract from a principle so wide and universal as the rule of res judicata.

There is no substance in the contention urged on behalf of the State that the competency to try and dispose of within the meaning of Section

24, CPC is not at the time when the transfer of the suit is made but at the time when the proceeding was instituted. The point is concluded by the

Full Bench decision of this Court in Ramamirtham v. Rama Film Service (1951) 2 M.L.J. 121 (F.B.). In that case a suit was filed in the High Court

and after the notification by the Government enhancing the jurisdiction of the City Civil Court to Rs. 10,000, the High Court transferred the suit to

the City Civil Court. The Full Bench held that even though the City Civil Court had no jurisdiction at the time of the institution of the suit to entertain

the same the transfer u/s 24 of the CPC was invalid as at the time the jurisdiction of the City Civil Court had been increased to Rs. 10,000.

On behalf of the State, placing reliance upon the leading decision in Ledgard v. Bull ILR (1886) All. 191 (P.C.), it was contended that

objections as to local jurisdiction or pecuniary valuation stand on a different footing from an objection to the very competence of a Court to try and

dispose of a suit, and that the latter objection goes to the very root of the matter and that when there was a lack of such inherent jurisdiction the

decision rendered is a nullity, and that neither estoppel, waiver nor consent would confer jurisdiction upon the Court. This principle is well settled

that if a Court has no jurisdiction over the subject-matter the parties cannot by their mutual consent convert the proceedings into a judicial process.

The Advocate-General also relied upon the Bench decision of this Court in Swamy v. Mohideen ILR (1958) Mad. 622. In that case the Plaintiff in

a passing off action also alleged an infringement of his registered trade mark and sought relief on that basis. The suit could not be filed in the City

Civil Court by reason of the bar u/s 73 of the Trade Marks Act of 1940 as the City Civil Court is neither a District Court nor a Court superior to

the District Court. When the decree passed by the City Civil Court in such a suit was sought to be executed it was held that such a decree was a

nullity as the City Civil Court lacked inherent jurisdiction to try the subject-matter in dispute and dispose of the same. In my opinion this principle

has no application to the instant case where the objection as to jurisdiction is not in relation to the subject-matter or the inherent competence of the

Court but relates to pecuniary valuation. The principle in Ledgard v. Bull ILR (1886) All. 191 (P.C.) would support the contention of the State

only if it is held that Section 21 of the Travancore-Cochin Civil Courts Act still continued to be in operation, in which case the District Munsif will

be lacking jurisdiction or inherent competence to entertain a suit of a particular description, i.e., suits by or against Government.

The learned Advocate General in the course of his arguments laid considerable stress upon the fact that at the time when the suit was filed by

the Plaintiff, the Madras Civil Courts Act had not been extended and Section 21 of the Travancore-Cochin Civil Courts Act alone applied with the

result that there was no need for the Plaintiff to apply his mind to the question of valuation for purposes of jurisdiction, and that whatever may be

the value adopted by the Plaintiff the suit could have been filed only in the District Court. He urged that in such a setting (where valuation for

purposes of jurisdiction was not of any significance) the rule that valuation for purposes of court-fees and jurisdiction would be the same would not

apply. I see no force in this contention. In the first place the objection was raised by the State but was not pressed at the time of the trial. Secondly

when the suit was transferred to the Munsifs Court it was the obvious duty of the Defendant to have raised this objection, especially when in the

plaint there is the categorical statement that the valuation of the relief at Rs. 1,000 was for purposes of court-fees and jurisdiction.

In Firm Ram Sahay Mall Rameshwar Dayal and Others Vs. Bishwanath Prasad, , it was held that if a plea that the Court has no jurisdiction

was taken up in the written statement and issue raised but the issue was given up at the hearing the Defendant-Appellant cannot raise the plea in

appeal by reason of Section 21 of the Code of Civil Procedure. The ratio of this decision clearly applies to the instant case. The learned

Advocate-General relied upon the Full Bench decision of this Court in Kuppanna v. Peruma ILR (1961) Mad. 1143 (F.B.). On an examination of

the reasoning in that case I am of opinion that, far from supporting the contention of the State it completely supports the Respondent. In that case

the Plaintiffs valued the suit at Rs. 9,650 and when the Defendants filed the appeal to the High Court they adopted that value for the purposes of

payment of necessary court-fee. The judgment of the trial Court was affirmed by the High Court and the Defendants filed a petition under Article

133 of the Constitution for the grant of leave to appeal to the Supreme Court stating that the appeal involved the determination of a substantial

question of law and that the real value of the properties involved in the litigation was more than Rs. 20,000 at all material times. The Full Bench had

to consider the question whether the Defendants were estopped from proving the real market value of the properties involved, merely because for

purposes of court-fees in the appeal before the Court they have adopted the Plaintiff�s valuation. The Full Bench held that on the facts of that

case there was no estoppel. The Full Bench held that if there has been a judicial adjudication of the correctness of the original valuation the rule of

res judicata would apply or where the party adopting the original valuation had an option to give that value or the correct value and while exercising

the option by giving one of such values he gained for himself an advantage or made the opposite party suffer a detriment that party cannot be

allowed to go back upon the valuation. It is important to notice that the Full Bench had observed that if the objection as to valuation is well

founded and would oust the jurisdiction of the particular Court it is obligatory upon the Defendants to raise such an objection and if not raised, the

Defendants will be precluded from urging it in the subsequent stages of the litigation. On the facts of that case it did not matter whether the subject-

matter in dispute was Rs. 9,650 or more. In any case the appeal could be filed only in the High Court. A careful examination of the reasonings of

the Full Bench decision shows that the Full Bench has recognized and accepted the distinction between a case of a mere erroneous valuation for

jurisdiction or fiscal purposes having no relation to the forum in which the proceeding is instituted and a case in which such a value would

completely alter the particular forum. The matter was put by Ramachandra Ayyar J., (as he then was) as follows at page 1154.

It is evident that where no advantage accrues to a party by making or adopting a wrong statement, no question of approbate and reprobate or

blowing hot and cold can arise. In the instant case, no advantage accrued to the Defendant by the lower valuation, because the appeal against the

judgment of the trial Court would lie to the High Court whether on the original valuation or the revised one. When, therefore, he attempted to show

that the subject-matter of the suit was of a higher value than what was stated in the memorandum of appeal to this Court, his attempt, to quote the

words of Greer L.J., in Mills v. Duckworth (1958) 1 All. E.R. 318 was not to blow hot and cold but to blow hotter.

After dealing with the case law on the point the learned Judge summed up the matter in these terms at page 1155.

In both the cases the Plaintiffs valued the suit so as to come within the jurisdiction of a District Munsif''s Court. The Defendant accepted the

valuation and filed an appeal against the decision in the District Court and a second appeal was thereafter taken by the Plaintiff who succeeded in

the High Court. With a view to appeal to the Privy Council, the Defendant attempted to prove at a later stage that the real value of the property

was different from the one made by the Plaintiff. It was held that he could not do so, as he obtained an advantage by adopting the lower valuation

in that he was enabled to appeal to the District Court. The true principle if we may say so with respect, was laid down in Radhika Nath Biswas Vs.

Midnapore Zemindari Co. Ltd., where the Plaintiff valued the suit at less than Rs. 10,000 and filed it in the Sub-Court. The suit was decreed and

the Defendant in filing the appeal to the High Court adopted the plaint valuation. He succeeded in the High Court. The Plaintiff applied for leave to

appeal to the Privy Council stating that the real value of the property was more than Rs. 10,000. That was a case where no change of forum of the

appeal was involved, even if the real value had been adopted by the Plaintiff in the first instance. The learned Judges observed at page 296:

On the other hand, the trend of authorities is to the effect that whether by way of estoppel res judicata the courts have considered whether the

question of valuation has been raised and decided at an earlier stage and also whether the opposite party has been led to act upon such valuation,

as for instance by way of second appeal; or to put it another way, whether the party seeking to vary the valuation for the purpose of appeal to

England is in the position of approbating and reprobating. Where this is the case, variation of value should not be allowed. But where this is not the

case, a party should not shut out from his right to appeal to England merely because of an erroneous valuation in the plaint.

From this statement of the law it will be clear that in this case it was obligatory on the part of the Defendant to raise the objection as to

valuation as the suit could not be filed in the Munsif''s Court in view of the value of the property involved. At any rate, the Defendant having filed

the appeal in the District Court adopting the Plaintiff�s valuation would be clearly estopped from urging the present objection. The technical

objections as to jurisdiction and valuation raised by the State are, therefore, over-ruled.

On the question of the irregularity in the procedure adopted by the learned Subordinate Judge in reproducing the typed notes furnished to him

by the learned Counsel in the lower Court, I am in entire agreement with my learned brother. I am clearly of the opinion that the judgment of the

learned Subordinate Judge be set aside and the appeal should be re-heard.

I concur with my learned brother regarding the order as to costs.