ORDER
N.Y. Hanumanthappa, J.
1. Heard Sri T. Veerabhadraiah, Advocate for the petitioner and Smt. Sumalini Reddy, Advocate-Standing Counsel for the respondent.
2. The point for consideration in this Civil Revision Petition is whether the lower appellate Court is justified in remanding the matter to the trial Court for fresh disposal on the additional ground raised before the lower appellate Court by the defendant/appellant as to the competency and jurisdiction of the trial Court to proceed with the suit, which was not raised before the trial Court in the first instance when the written statement was filed.
3. A few facts are that the petitioner herein was plaintiff in O.S. 1446/1986 on the file of the II Additional District Munsif, Visakhapatnam for mandatory injunction with a direction to the defendant to allot to the plaintiff the suit schedule site measuring about 1600 square yards. The plaintiff valued the relief and paid Court fee as per Section 26(c) of the Andhra Pradesh Court Fees and Suits Valuation Act, 1956. The right of the plaintiff was objected to by the defendant by filing written statement. It is proper to state here that no objection as to the competency or jurisdiction, either pecuniary or territorial, of the trial Court was taken by the defendant in his written statement. Accordingly, the trial Court framed the following issues for trial:-
“1. Whether the plaintiff is entitled for a direction by way of mandatory injunction to the defendant as prayed for?
2. To what relief?”
Evidence was let in. After considering the entire evidence adduced before it, the trial Court found that the plaintiff made out its case and accordingly it decreed the suit on 8-4-1992. Aggrieved by the same, the defendant preferred an appeal, i.e., A.S. No. 59/1992 on the file of the IV Additional District Judge, Visakhapatnam. When the appeal was taken up for arguments, the appellant/ defendant raised an objection as to the competency and jurisdiction of the trial Court for entertaining the suit as the suit was not properly valued. Thus contending, it was argued by the defendant before the lower appellate Court that the judgment and decree passed by the trial Court were vitiated as the same were without jurisdiction. Accepting the said contention, the lower appellate Court allowed the appeal by its judgment and decree dated 12-4-1996 and remanded the matter to the trial Court, i.e., II Additional District Munsif’s Court, Visakhapatnam to apply its mind to the objection raised by the defendant and then pass appropriate order. The same is under challenge now in this Civil Revision Petition.
4. Heard Sri Veerabhadraiah, learned Counsel for petitioner and Smt. Sumalini Reddy, learned counsel for the respondent.
5. In order to understand how far the rival contentions are correct, it is proper to bear in mind the effect of Section 51 of the Andhra Pradesh Court Fees and Suits Valuation Act, 1956 so also Section 21 of the Code of Civil Procedure. Section 51 of the present A.P.C.F. & S.V. Act, 1956 corresponds to Section 11 of the Central Act. Both the Sections are verbatim same. Section 51 of the A.P.C.F. & S.V. Act, 1936 reads as follows:-
“Procedure where objection is taken on appeal or revision that a suit or appeal was not properly valued for jurisdiction purposes:-
(1) Notwithstanding anything contained in Section 99 of the Code of Civil Procedure, 1908 (Central Act V of 1908), an objection that, by reason of the over-valuation or under-valuation of a suit or appeal, a Court of first instance or lower appellate Court, which had no jurisdiction with respect to the suit or appeal, exercised jurisdiction with respect thereto shall not be entertained by an appellate Court, unless,
(a) such objection was taken in the Court of first instance at or before the hearing at which issues were first framed or in the lower appellate Court in the memorandum of appeal to the Court, or
(b) the appellate Court is satisfied, for reasons to be recorded by it in writing that the suit or appeal was over-valued or under-valued, and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.
(2) When such objection was taken in the manner mentioned in clause (a) of sub-section (1), but the appellate Court is not satisfied as to both the matters mentioned in clause (b) of that sub-section, it shall, if it has before it the materials necessary for the determination of the other grounds of appeal to itself, dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower appellate Court.
(3) Where such objection was taken in that manner and the appellate Court is satisfied as to both those matters, it shall, if those materials are not before it, proceed to deal with the appeal or remand the suit or appeal for disposal in accordance with the directions of the appellate Court.
(4) The provisions of this section with respect to an appellate Court shall, so far as may be, apply to a Court exercising revisional jurisdiction under any law for the time being in force.”
Section 21 CPC reads as follows:-
“(1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.”
6. As long ago as in 1954 the Supreme Court had an occasion to deal with the effect of Section 11 of the Suits Valuation Act, 1887 (Central Act) and it held as follows in Kiran Singh v. Chaman Paswan, :-
“The principle that underlies Section 11, Suits Valuation Act, 1887, is that a decree passed by a Court, which would have had no jurisdiction to hear a suit or appeal but for over-valuation or under-valuation, is not to be treated as, what it would be but for the section, null and void, and that an objection to jurisdiction based on over-valuation or under-valuation, should be dealt with under that section and not otherwise.
The same principle has been adopted in Section 21, Civil P.C., with reference to the objections relating to territorial jurisdiction. The policy underlying Section 21 and Section 99, Civil P.C. and Section 11 of the Suits Valuation Act, is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits.”
Subsequently, the Supreme Court had an occasion to explain the scope of Section21(3) of the Code of Civil Procedure in the case of Pathumma v. Kuntalan Kutty, wherein it is held as follows;-
“In order that an objection to the place of suing may be entertained by an appellate or revisional Court, the fulfilment of the following three conditions is essential: (1) The objection was taken in the Court of first instance. (2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement. (3) There has been a consequent failure of justice. All these three conditions must co-exist.
Where the High Court upheld the objection to the territorial jurisdiction of a Court in appeal, the order of the High Court would be liable to be set aside even if the objection was raised at the proper time when the objector was unable to show that the trial in a wrong Court had led to a failure of justice.”
If the law on Suits Valuation Act and Code of Civil Procedure as interpreted by the Supreme Court in the two decisions referred to above is understood properly, the answer we reach is that normally the Court shall not act upon technicalities and interference is warranted only when it is found that the order under challenge has resulted in failure of justice and prejudiced, on merits, the cause of a litigant. From the pleadings it is clear that at no time even when the suit was tried the defendant took objection as to proper valuation of the suit or competency of the trial Court as to its pecuniary jurisdiction. Even when the defendant lost the case in the trial Court and preferred an appeal also, the defendant did not choose to raise such an objection as one of the grounds of appeal but the defendant raised it only at the time of arguments. Taking the defendant’s conduct into consideration, the lower appellate Court should have refused to accept the contention of the defendant which led to interfere with the order of the trial Court. In my view, the procedure followed by the lower appellate Court is incorrect and contrary to the well-settled principle of law on the question involved.
7. Hence, the point raised above is answered holding that the order of the lower appellate Court remanding the matter to the trial Court is incorrect. On the other hand, the lower appellate Court should have heard the appeal on merits.
8. Accordingly, the order under challenge is set aside and it is ordered that the lower appellate Court shall hear both the parties on merits and dispose of the appeal in accordance with law.
With the above observations, the Civil Revision Petition is allowed.