ivil Appeal No 14 of 1953
Appeal by special leave granted by the Supreme Court by its Order dated the 29th October 1951 from the Judgment and Decree dated the 19th July 1950 of the High Court of Judicature at Patna Sinha and Rai JJ in appeal from Appellate Decree No 1152 of 1946 from the Judgment and Decree dated the 24th day of May 1946 of the Court of the 1st Additional District Judge in section J Title Appeal No I of 1946 arising out of the Judgment and Decree dated the 27th November 1945 of the First Court of Subordinate Judge at Monghyr in Title Suit No 34 of 1944
SC Issacs Ganeshwar Prasad and R C Prasad with him for the appellants
BK Saran and M M Sinha for respondents Nos
1 9 1954
April 14
The Judgment of the Court was delivered by VENKATARAMA AYYAR J
This appeal raises a question on the construction of section 11 of the Suits Valuation Act
The appellants instituted the suit out of which this appeal arises in the Court of the Subordinate Judge Monghyr for recovery of possession of 12 acres 51 cents of land situated in mauza Bardih of which defendants Nos 12 and 13 forming the second party are the proprietors
The allegations in the plaint are that on 12th April 1943 the plaintiffs were admitted by the second party as occupancy tenants on payment of a sum of Rs 1950 as salami and put into possession of the lands and that thereafter the first party consisting of defendants Nos 1 to 11 trespassed on them and carried away the crops
The suit was 119 accordingly laid for ejecting defendants Nos
I to II and for mesne profits past and future and it was valued at Rs 2950 made up of Rs 1950 being the value of the relief for possession and Rs 1000 being the past mesne profits claimed
Defendants Nos
I to II contested the suit
They pleaded that they had been in possession of the lands as tenants on batai system sharing the produce with the landlord from fasli 1336 and had acquired occupancy rights in the tenements that the second party had no right to settle them on the plaintiffs and that the latter acquired  no rights under the settlement dated 12th April 1943
Defendants Nos 12 and 13 remained ex parte
The Subordinate Judge held relying on certain receipts marked as Exhibits A to A 114 which were in the handwriting of the patwaris of the second party and which ranged over the period from fasli 1336 to 1347 that defendants Nos
I to II had been in possession for over 12 years as cultivating tenants and had acquired occupancy rights and that the settlement dated 12th April  1943 conferred no rights on the plaintiffs
He accordingly dismissed the suit
The plaintiffs preferred an appeal against this decision to the Court of the District Judge
Monghyr who agreed with the trial Court that the receipts Exhibits A to A 114 were genuine and that defendants Nos
I to 11 had acquired occupancy rights and accordingly dismissed the appeal
The plaintiffs took up the matter in second appeal to the High Court Patna SA No 1152 of 1946 and there for the first time an objection was taken by the Stamp Reporter to the valuation in the plaint and after enquiry the Court determined that the correct valuation of the suit was Rs 9980
The plaintiffs paid the additional Court fees required of them and then raised the contention that on the revised valuation the appeal from the decree of the Subordinater Judge would lie not to the District Court but to the High Court and that accordingly section A No 1152 of 1946 should be heard as a first appeal ignoring the judgment of the District Court
The learned Judges held following the decision 120 of a Full Bench of that Court in Ramdeo Singh vs Raj Narain 1 that the appeal to the District Court was competent and that its decision could be reversed only if the appellants could establish prejudice on the merits and holding that on a consideration of the evidence no such prejudice had been shown they dismissed the second appeal
The matter now comes before us on special leave
It will be noticed that the proper Court to try the present action would be the Subordinate Court Monghyr whether the valuation of the suit was Rs 2950 as given in the plaint or Rs 9880 as determined by the High Court but it will make a difference in the forum to which the appeal from its judgment would lie whether the one valuation or the other is to be accepted as the deciding factor
On the plaint valuation the appeal would lie to the District Court on the valuation as determined by the High Court it is that Court that would be competent to entertain the appeal
The contention of the appellants is that as on the valuation of the suit as ultimately determined the District Court was not competent to entertain the appeal the decree and judgment passed by that Court must be treated as a nullity that the High Court should have accordingly heard SA No 1152 of 1946 not as a second appeal with its limitations under section 100 of the Civil Procedure Code but as a first appeal against the judgment and decree of the Subordinate Judge Monghyr and that the appellants were entitled to a full heating as well on questions of fact as of law
And alternatively it is contended that even if the decree and judgment of the District Court on appeal are not to be treated as a nullity and the matter is to be dealt with under section 11 of the Suits Valuation Act the appellants had suffered Prejudice within the meaning of that section in that their appeal against the judgment of the Subordinate Judge was heard not by the High Court but by a Court of inferior jurisdiction viz the District Court of Monghyr and that its decree was therefore liable to be set aside and the appeal heard by the High Court on the merits as a first appeal
1 ILR 27 Patna 109 AIR 1949 Patna 278 121 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 II 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 fell 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 deservedlyfor 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 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 undervaluation should be dealt with under that section and not otherwise
The reference to section 578 now section 99 of the Civil Procedure Code in the opening words of the section is significant
That section while providing that no decree shall be reversed or varied in 16 122 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 under valuation shall Dot 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 under valuation 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 1 1 of the Suits Valuation Act with reference to pecuniary jurisdiction
The policy underlying sections 21 and 99 of the Civil Procedure Code 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
On behalf of the appellants Rajlakshmi Dasee V Katyayani Dasee1 and Shidappa Venkatrao vs Rachappa Subrao2 which was affirmed by the Privy Council in Rachappa Subrao Jadhav vs Shidappa Venkatrao Jadhav3 were relied on as supporting the contention 1 ILR 2 ILR 36 Bom 628
3 46 IA 24
123 that if the appellate Court would have had no jurisdiction to entertain the appeal if the suit had been correctly valued a decree passed by it must be treated as a nullity
In Rajlakshmi Dasee vs Katyayani Dasee1 the facts were that one Katyayani Dasee instituted a suit to recover the estate of her husband Jogendra in the Court of the Subordinate Judge Alipore valuing the claim at Rs 2100 whereas the estate was worth more than a lakh of rupees
The suit was decreed and the defendants preferred an appeal to the District Court which was the proper Court to entertain the appeal on the plaint valuation
There the parties compromised the matter and a consent decree was passed recognising the title of the defendants to portions of the estate
Then Rajlakshmi Dasee the daughter of Jogendra filed a suit for a declaration that the consent decree to which her mother was a party was not binding on the reversioners
One of the grounds urged by her was that the suit of Katyayani was deliberately under valued that if it had been correctly valued it was the High Court that would have had the competence to entertain the appeal and that the consent decree passed by the District Judge was accordingly a nullity
In agreeing with this contention the High Court observed that a decree passed by a Court which had no jurisdiction was a nullity and that even consent of the partes could not cure the defect
In that case the question was raised by a person who was not a party to the action and in a collateral proceeding and the Court observed  We are not now called upon to consider what the effect of such lack of jurisdiction would be upon the decree in so far as the parties thereto were concerned
It is manifest that so fir as a stranger to the decree is concerned who is interested in the property affected by the decree he can obviously ask for a declaration that the decree is a nullity because made by a Court which had no jurisdiction over the subject matter of the litigation On the facts the question of the effect of section 11 of the Suits Valuation Act did not arise for determination and was not considered
1 ILR 124 In Shidappa Venkatrao vs Rachappa Subrao1 the plaintiffs instituted a suit in the Court of the Subordinate Judge First Class for a declaration that he was the adopted son of one Venkatrao and for an injunction restraining the defendant from interfering with his possession of a house
The plaint valued the declaration at Rs 130 and the injunction at Rs 5 and the suit was valued for purposes of pleader s fee at Rs 69016 9 0 being the value of the estate
The suit was decreed by the Subordinate Judge and against his decree the defendant preferred an appeal to the District Court which allowed the appeal and dismissed the suit
The plaintiff took up the matter in second appeal to the High Court and contended that on the valuation in the plaint the appeal against the decree of the Subordinate Judge lay to the High Court and that the appeal to the District Court was incompetent
This contention was upheld and the decree of the District Judge was set aside
It will be seen that the point in dispute was whether on the allegations in the plaint the value for purposes of jurisdiction was Rs 135 or Rs 69016 9 0 and the decision was that it was the latter
No question of over valuation or under valuation arose  and no decision on the scope of section 11 of the Suits Valuation Act was given
As a result of its decision the High Court came to entertain the matter as a first appeal and affirmed the decree of the Subordinate Judge
The defendant then took up the matter in appeal to the Privy Council in Rachappa Subrao Jadhav vs Shidappa Venkatrao Jadhav2 and there his contention was that in fact on its true valuation the suit was triable by the Court of the Subordinate Judge of the Second Class and that the District Court was the proper Court to entertain the appeal
The Privy Council held that this objection which was  the most technical of technicalities  was not taken in the Court of first instance and that the Court would not be justified  in assisting an objection of that type and that it was also untenable
Before concluding it observed  The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his 1 ILR 36 Bom
2 46 IA 24
125 opponent but to secure revenue for the benefit of the State The defendant in this suit seeks to utilise the provisions of the Act not to safeguard the interests of the Statebut to obstruct the plaintiff  he does not contend that the Court wrongly decided to  the detriment of the revenue but that it dealt with the case without jurisdiction
In the circumstances this plea advanced for the first time at the hearing of the appeal in the District Court is misconceived and was rightly rejected by the High Court
 Far from supporting the contention of the appellants that the decree passed in appeal by the District Court of Monghyr should be regarded as a nullity these observations show that an objection of the kind now put forward being highly technical in character should not be entertained if not raised in the Court of first instance
We are therefore of opinion that the decree and judgment of the District Court Monghyr cannot be regarded as a nullity
It is next contended that even treating the matter as governed by section 11 of the Suits Valuation Act there was prejudice to the appellants in that by reason of the under valuation their appeal was heard by a Court of inferior jurisdiction while they were entitled to a bearing by the High Court on the facts
It was argued that the right of appeal was a valuable one and that deprivation of the right of the appellants to appeal to the High Court on facts must therefore be held without more to constitute prejudice
This argument proceeds on a misconception
The right of appeal is no doubt a substantive right and its deprivation is a serious prejudice but the appellants have not been deprived of the right of appeal against the judgment of the Subordinate Court
The law does provide an appeal against that judgment to the District Court and the plaintiffs have exercised that right
Indeed the undervaluation has enlarged the appellants  right of appeal because while they would have had only a right of one appeal and that to the High Court if the suit had been correctly valued by reason of the under valuation they obtained right to two appeals one to the District Court and another to the High Court
The complaint of the 126 appellants really is not that they had been deprived of a right of appeal against the judgment of the Subordinate Court which they have not been but that an appeal on the facts against that judgment was heard by the District Court and not by the High Court
This objection therefore amounts to this that a change in the forum of appeal is by itself a matter of prejudice for the purpose of section 1 1 of the Suits Valuation Act
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 vs Cheriya Parvathi Nethiar 1 Mool Chand vs Ram Kishan 2 and Ramdeo Singh y Baj Narain 3
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 overvaluation 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 decrees 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 lead to the surprising result that the section was enacted with the object of curing 1 ILR 46 Mad
2 ILR 55 All
3 ILR 27 Patna 109 AIR 1949 Patna 278
127 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
It is next argued that in the view that the decree of the lower appellate Court is liable to be reversed only on proof of prejudice on the merits the second appellate Court must for the purpose of ascertaining whether there was prejudice hear the appeal fully on the facts and that in effect it should be Heard as a first appeal
Reliance is placed in support of this contention on the observations of two of the learned Judges in Ramdeo Singh vs Rai Narain 1
There Sinha J observed that though the second appeal could not be treated as a first appeal prejudice could be established by going into the merits of the decision both on questions of fact and of law and that that could be done under section 103 of the Civil Procedure Code
Meredith J agreed that for determining whether there was prejudice or not there must be an enquiry on the merits of the decisions on questions of fact but he was of opinion that that could be done under section I I of the Suits Valuation Act itself
Das J however declined to express any opinion on this point as it did not arise at that stage
The complaint of the appellants is that the learned Judges who heard the second appeal though they purported to follow the decision in Ramdeo Singh vs A Narain 1 did not in fact do so and that there was no consideration of the evidence bearing on the questions of fact on which the parties were in dispute
That brings us to the question as to what is meant by prejudice in section II of the Suits Valuation Act
Does it include errors in findings on questions of fact in issue between the parties  If it does then it will be obligatory on the Court hearing the second appeal to examine the evidence in full and decide whether the 1 ILR 27 Patna tog AI R 1949 Patna 278
128 conclusions reached by the lower appellate Court are right
If it agrees with those findings then it will affirm the judgment if it does not it will reverse it
That means that the Court of second appeal is virtually in the position of a Court of first appeal
The language of section 11 of the Suits Valuation Act is plainly against such a view
It provides that overvaluation or under valuation must have prejudicially affected the disposal of the case on the merits
The prejudice on the merits must be directly attributable to over valuation or under valuation and an error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over valution or under valuation
Mere errors in the conclusions on the points for determination would therefore be clearly precluded by the language of the section
It must further be noted that there is no provision in the Civil Procedure Code which authorises a Court of second appeal to go into questions of fact on which the lower appellate Court has recorded findings and to reverse them
Section 103 was relied on in Ramdeo Singh vs Raj Narain 1 as conferring such a power
But that section applies only when the lower appellate Court has failed to record a finding on any issue or when there had been irregularities or defects such as fall under section 100 of the Civil Procedure Code
If these conditions exist the judgment under appeal is liable to be set aside in the exercise of the normal powers of a Court of second appeal without resort to section 11 of the Suits Valuation Act
If they do not exist there is no other power under the Civil Procedure Code authorising the Court of second appeal to set aside findings of fact and to re hear the appeal itself on those questions
We must accordingly hold that an appellate Court has no power under section 1 1 of the Suits Valuation Act to consider whether the findings of fact recorded by the lower appellate Court are correct and that error in those findings cannot be held to be prejudice within the meaning of that section
So far the definition of prejudice has been negative in terms that it cannot be mere change of forum 1 ILR 27 Patna 109
129 Dr mere error in the decision on the merits
What then is Positively prejudice for the purpose of section 11  That is a question which has agitated Courts in India ever
since the enactment of the section
It has been suggested that if there was no proper hearing of the suit or appeal and that had resulted in injustice that would be prejudice within section 11 of the Suits Valuation Act
Another instance of prejudice is when a suit which ought to have been filed as an original suit is filed as a result of under valuation on the small cause side
The procedure for trial of suits in the Small Cause Court is summary there are no provisions for discovery or inspection evidence is not recorded in extenso and there is no right of appeal against its deci sion
The defendant thus loses the benefit of an elaborate procedure and a right of appeal which he would have had if the suit had been filed on the original side
It can be said in such a case that the disposal of the suit by the Court of Small Causes has prejudicially affected the merits of the case
No purpose however is
served by attempting to enumerate exhaustively all possible cases of prejudice which might come under section II of the Suits Valuation Act
The jurisdiction that is conferred on appellate Courts under that section is an equitable one to be exercised when there has been an erroneous assumption of jurisdiction by a Subordinate Court as a result of over valuation or under valuation and a consequential failure of justice
It is neither possible nor even desirable to define such a risdiction
closely or confine it within stated bounds
Pt can only be predicated of it that it is in the nature of a revisional jurisdiction to be exercised with caution and for the ends of justice whenever the facts and situations call for it
Whether there has been prejudice or not is accordingly a matter to be determined on the facts of each case
We have now to see whether the appellants have suffered any prejudice by reason of the under valuation
They were
the plaintiffs in the action
They valued the suit at Rs 2950
The defendants raised no objection to the jurisdiction of the Court at any time
When the plaintiffs lost the suit after an elaborate 17 130 trial it is they who appealed to the District Court as they were bound to on their valuation
Even there the defendants took no objection to the jurisdiction of the District Court to hear the appeal
When the deci sion went on the merits against the plaintiffs they preferred section A No 1152 of 1946 to the High Court of Patna and if the Stamp Reporter had not raised the objection to the valuation and to the Court fee paid the plaintiffs would not have challenged the jurisdiction of the District Court to hear the appeal
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 undervaluation 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 under section 1 1 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 opponents who had acquiesced therein  There is considerable authority in the Indian Courts that clausts a and b of section I 1 of the Suits Valuation Act should be read conjunctively notwithstanding the use of the word or If that is the correct interpretation the plaintiffs would be precluded from raising the objection about jurisdiction in an appellate Court
But even if the two provisions are to be construed disjunctively and the parties held entitled under section 1 1 1 b to raise the objection for the first time in the appellate Court even then the recuirement as to prejudice has to be satisfied and the party who has resorted to a forum of his own choice on his own valuation cannot himself be heard to complain of any prejudice
Prejudice can be a ground for relief only when it is due to the action of another party and not when it results from one s own act
Courts cannot recognise that as prejudice which flows from the action of the 131 very party who complains about it
Even apart from this we are satisfied that no prejudice was caused to the appellants by their appeal having been heard by the District Court
There was a fair and full hearing of the appeal by that Court  it gave its decision on the merits on a consideration of the entire evidence in the case and no injustice is shown to have resulted in its disposal of the matter
The decision of the learned Judges that there were no grounds for interference under section 11 of the Suits Valuation Act is correct
In the result the appeal fails and is dismissed with costs
Appeal dismissed


Summary:
The policy underlying section 11 of the Suits Valuation Actas also of sections 21 and 99 of the Code of Civil Procedure 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 a 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
Mere change of form is not prejudice within the meaning of section 11 of the Suits Valuation Act nor a mere error in the decision on the merits of the case
It must be one directly attributable to over valuation or under valuation
Whether there has been prejudice or not is a matter to be determined on the facts of each case
The jurisdiction under section 11 is an equitable one to be exercised when there has been an erroneous assumption of jurisdiction by a Subordinate Court as a result of over valuation or under valuation and a consequential failure of justice
It is neither possible nor desirable to define such jurisdiction closely or confine it within stated bounds
118 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
Ramdeo Singh vs Baj Narain ILR 27 Patna 109 Bajlakshmi Dasee vs Katyayani Dasee ILR  Shidappa Venkatrao vs Rachappa Subrao I LR 36 Bom
628  Rachappa Subrao Jadhav vs Shidappa Venkatrao Jadhav 46 IA 24  Kelu Achan vs Cheriya Parvathi Nethiar ILR 46 Mad
631 Mool Chand vs Bam Kishan ILR 55 All 315 referred to