JUDGMENT
S.S. Hasan, J.
1. This is an appeal by
the defendant in a suit for partition of the joint
properties consisting of lands and for an
allotment of separate areas on the basis of half
share in the family properties. The lands are
situated in village Chandol Barahi in the district
of Saharsa. The suit was dismissed but the
appeal by the plaintiffs was allowed leading to
the present second appeal.
2. A very short question was raised in this appeal. It was contended by the appellant that the first appellate Court had no jurisdiction to hear and dispose of the appeal because the admitted value of the property involved in the suit was Rs. 10,000/- and that was the value given in the plaint and the grounds of appeal in the lower appellate Court
3. The matter was referred to a Division Bench by me in view of the fact that two decisions of this Court reported in AIR 1949 Pat 278 (FB) and AIR 1918 Pat 71 needed a deeper examination, in the light of the submission of the learned counsel for the appellant that Section 11A of the Suits Valuation Act does not apply as the valuation of the property in the suit was not increased. Learned counsel for the appellant placed reliance on AIR 1918 Pat 71 to submit that if the value of the property in the suit and the appeal is beyond the pecuniary jurisdiction of the Court concerned, the decree so passed, shall be void and no amount of consent or acquiescence will save the decree from the vice of nullity. The passage relied upon is as follows : —
“Where there is an inherent want of jurisdiction, the consent of parties cannot confer jurisdiction and objection can be taken any tune. Where a Court has no inherent jurisdiction to try a case it cannot pronounce any decree and if it does pronounce a decree that decree is null and void”.
In reply however a Full Bench decision of this Court reported in AIR 1949 Pat 278 is cited by the learned counsel for the respondents. After an elaborate discussion of all the aspects involved the Hon’ble Sinha, J. as he then was, came to the following conclusions : —
“In view of these considerations, I have come to the following conclusions : (1) That the judgment of the trial Court in this case was not vitiated by any error of jurisdiction as a result of the under valuation. (2) That the judgment of the lower appellate Court are not wholly void but only voidable on the appellants showing that they are erroneous in fact or in law, and that thus the appellants have been prejudiced in the disposal of the appeal on merits. (3) That simply because the lower appellate Court had no pecuniary jurisdiction over the appeal, which should have been heard as a first appeal, in this Court, would not by itself amount to prejudice in the disposal of the case on merits. (4) That the established practice of this Court to treat such a second appeal as the present as a first appeal for all purposes, including those of court fees, is not in accordance with the provisions of the Suits Valuation Act or the Court-fees Act I would, therefore, answer the question under reference in the negative”.
4 The second and third conclusions are relevant for the purpose of this application. Undoubtedly in view of these conclusions AIR 1918 Pat 71 stand impliedly overruled Learned counsel for the appellant submitted that the aforesaid decision has no application to the facts of this case because in the instant case there is no doubt that the court hearing the appeal was not in doubt with the pecuniary jurisdiction in view of the admitted valuation of the property hi suit But in the case of Ramdeo Singh v. Raj Narain Singh, AIR 1949 Pat 278 the court trying the suit had jurisdiction to try the matter on the basis of the valuation given by the parties which was found later to be inadequate and had to be increased. In my view this distinction on facts does not affect that conclusions of law arrived at in the Full Bench decision of this Court reported in AIR 1949 Pat 278.1 have no manner of doubt that the Full Bench had laid down the law in this regard and has held that once a case is heard by a court lacking in pecuniary jurisdiction that by itself would not render the decree a nullity unless prejudice is caused in the light of Section 11 of the Suits Valuation Act I may also quote another passage from the aforesaid Full Bench decision which reads as follows :–
“These observations of their Lordships of the Calcutta High Court, in my opinion, do not apply to the facts of the present case, inasmuch as those observations were made in relation to a litigant who was not a party to the decree which was impugned as void for want of pecuniary jurisdiction. In the present case the appellants were defendants to the suit, and could and should have raised, at the earliest opportunity, an objection to the undervaluation. They have taken a judgment against themselves. Is it open to them to ignore that judgment as a mere nullity? In my opinion, if is not”.
Another decision intimately related to the question in hand is AIR 1954 SC 340. Succinctly stated it has held that although the fundamental law is that the Court cannot be endowed with jurisdiction by consent of parties and such point could be raised at any stage of the proceeding, yet considering this aspect along with Section 11 of the Suits Valuation Act, the lack of pecuniary jurisdiction cannot be raised as a point unless prejudice is caused. Paras 6 and 7 of the decision are cited below : —
“The answer to these contentions must depend on what the position in law is when a court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of Section 11 of the Suits Valuation Act is on that position. It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties. If the question now under consideration is to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was ‘coram non judice’, and that its judgment and decree would be nullities. The question is what is the effect of Section 11 of the Suits Valuation Act on this position”.
“Section 11 enacts that notwithstanding anything in Section 578 of the Code of Civil Procedure an objection that a Court which had no jurisdiction over a suit or appeal had exercised it by reason of over valuation or under valuation, should not be entertained by an appellate Court, except as provided in the section. Then follow provisions as to when the objections could be entertained, and how they are to be dealt with. The drafting of the section has come in and deservedly — for considerable criticism; but amidst much that is obscure and confused, there is one principle which stands out clear and conspicuous. It is that a decree passed by a Court, which would have had no jurisdiction to hear a suit or appeal but for overvaluation or undervaluation, is not to be treated as, what it would be put for the section, null and void, and that an objection to jurisdiction based on overvaluation or undervaluation, should be dealt with under that section and not otherwise.”
The reference to Section 578, now Section 99, C.P.C., in the opening words of the section is significant. That section, while providing that no decree shall be reversed or varied in appeal on account of the defects mentioned therein when they do not affect the merits of the case, excepts from its operation defects of jurisdiction. Section 99 therefore gives no protection to decrees passed on merits, when the Courts which passed them lacked jurisdiction as a result of over-valuation or undervaluation. It is with a view to avoid this result that Section 11 was enacted. It provides that objections to the jurisdiction of a Court based on over-valuation or undervaluation shall not be entertained by an appellate Court except in the manner and to the extent mentioned in the section. It is a self-contained provision complete in itself, and no objection to jurisdiction based on over-valuation or undervaluation can be raised otherwise than in accordance with it.
With reference to objections relating to territorial jurisdiction Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99, C.P.C. and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and 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. The contention’ of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act.”
Examining once again the decision reported in AIR 1918 Pat 71 in the light of the aforesaid Supreme Court decision, I have no hesitation in holding that the Patna case merely states the fundamental aspect without considering the effect of Section 11 of the Suits Valuation Act.
5. I have, therefore, no hesitation in holding that having failed to raise any objection to the District Judge hearing the appeal and having ventured to take the risk of obtaining a successful result, it is not open to the appellant now to raise the lack of pecuniary jurisdiction of the appellate Court as a point of law without being able to show that they suffered any prejudice as required by Section 11 of the Suits Valuation Act, I may also state that the judgment of the appellate Court was not assailed on merit within the scope required by Sections 100 and 103 of the Code of Civil Procedure. No other error of law was pointed out nor was anything brought to our notice which would indicate to show that the appellant suffered any prejudice on merit.
6. In the result, the aforesaid appeal is dismissed with cost.
S.S. Sandhawlia, C.J.
1. I agree.