IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 CMA.No. 324 of 1998() --------------------- AS.45/1993 of DISTRICT COURT, KOZHIKODE OS.825/1990 of PRL.MUNSIFF'S COURT, KOZHIKODE-I .................... APPELLANT/RESPONDENT/PLAINTIFF: ------------------- RAVINDRAN, S/O.THACHANGOTHU JANU, RESIDING AT THACHANGOTU, PRADOSH HOUSE, VENGERI AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON SRI.KODOTH PUSHPARAJAN SMT.LEELAMMA ANTONY SRI.TOMY PAUL RESPONDENT/APPELLANT/DEFENDANT: ------------------- PUTHUSSERY ALI, S/O.IMBICHAMMOO, (DIED) RESIDING AT PALLIMAVUNILAM ALIAS PALLIYAPPA VAYAL NILAM HOUSE, THAMARASSERY AMSOM AND DESOM, KOZHIKODE TALUK. SUPPL. R2. SAFIYA, W/O. LATE PUTHUSSERY ALI, RESIDING AT PALLIMAVU NILAM ALIAS PALLIYAPPA VAYAL NILAM HOUSE, THAMARASSERY AMSOM DESOM, KUMARASWAMI ROAD, P.O.CHELANNUR, KOZHIKODE TALUK. '' R3. FIROZ, S/O.LATE PUTHUSSERY ALI, RESIDING AT -DO- -DO-' (SUPPL.R2 AND R3 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT VIDE ORDER DTD. 29/11/2006 IN CMP.5015/2000) BY ADV. SRI.A.ANTONY FOR R2 & R3 SRI.MATHEW SKARIA SMT. LEELAMMA ANTONY THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2010, ALONG WITH CMA NO. 325 OF 1998 THE COURT COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO. 8032/98 IN CMA. NO.324/98 -------------------- DISMISSED 11/2/1998 Sd/- HARUN-UL-RASHID, JUDGE. True Copy P.S. TO JUDGE. HARUN-UL-RASHID,J. ----------------------------- C.M.A.NOS.324 & 325 OF 1998 ----------------------------- DATED THIS THE 11TH DAY OF FEBRUARY, 2010 JUDGMENT These appeals are filed against the judgment and decree in A.S.Nos.45/93 and 153/1998 on the file of the District Court, Kozhikode. The Lower appellate court set aside the decree and judgment passed by the trial court in O.S.Nos.751 & 825 of 1990 and remanded the suits to the trial court for fresh disposal in accordance with law, after affording opportunity to the parties to amend the pleadings and to adduce further evidence, if any. The respondent in the said appeals preferred these C.M.Appeals challenging the direction of the Lower Appellate Court remanding the suits for fresh disposal in accordance with law. 2. The plaint schedule property is 6 7/8 cents of land and the building. The property admittedly belongs to the plaintiff in O.S. No. 825/90 (hereinafter referred to as -2- C.M.A.Nos.324 & 325/98 “the seller”). The defendant in the said suit is the purchaser, (hereinafter referred to as “the purchaser”). He is the plaintiff in O.S.No.751/90 and the seller is the defendant in the said suit. 3. On 3/11/1989 the parties entered into an agreement for sale of 8 7/8 cents of land and the building therein. The sale prize was fixed at Rs.1,77,500/-. Out of the said 8 7/8 cents of land, two cents of land were sold to the purchaser's wife by the seller on 4/12/1989. The remaining 6 7/8 cents of land and the building is the subject matter of the above said suits. Subsequent to the sale deed in favour of the purchaser's wife in respect of two cents of land, the parties again executed another agreement on 4/12/1989 for sale of the remaining extent of the property. The sale prize was fixed at Rs.1,71,500/-. Towards the sale consideration admittedly the purchaser paid an amount of Rs.94,000/- on the date of the agreement. The purchaser claimed that on the date of agreement he was put in possession of the plaint schedule property and that he along with his family is -3- C.M.A.Nos.324 & 325/98 residing in the house situated in the property. The period fixed for execution of the sale deed is four months from the date of the agreement. The purchaser complained that the seller did not take steps to obtain purchase certificate from the Land Tribunal nor did he hand over the title deed of the property and the non- encumbrance certificate. There is a dispute regarding the balance to be paid towards the sale consideration. In the year 1990 both the parties have filed the suits. O.S.No.175/90 was filed by the purchaser. The prayer in the said suit was for mandatory injunction directing the seller to hand over the purchase certificate, title deed, tax receipts, clearance certificate etc. The purchaser also prayed for prohibitory injunction restraining the seller from trespassing into the plaint schedule property. 4. O.S.No.825/90 was filed by the seller. The agreement dated 4/12/1989 is admitted. It is not disputed that the property was agreed to be sold for a sum of Rs.1,71,500/- and that the seller received a sum of Rs.94,000/- as advance -4- C.M.A.Nos.324 & 325/98 amount. It is contended by the seller that the purchaser was not in possession of the entire property. According to him, he retained two rooms in the building and the rest of the rooms in the building were given possession to the purchaser. It was also pleaded that all documents relating to the property and the non- encumbrance certificate have been handed over to the purchaser. The seller contended that the purchaser was responsible for the breach of contract and therefore he has no obligation to sell the property to the purchaser. The suit was filed for a declaration that the sale agreement stands cancelled and for recovery of possession of the suit property on the strength of plaintiff's title with mesne profits at the rate of Rs.1,200/- per annum. The trial court decreed the suit filed by the seller and dismissed the suit filed by the purchaser. 5. In the appeals preferred by the purchaser, the Lower Appellate Court, after considering the matter, remanded the case for fresh disposal in accordance with law. The Lower Appellate -5- C.M.A.Nos.324 & 325/98 Court examined the sufficiency of court fee paid and examined whether the court fee paid by both sides in the suits is correct. In A.S.No.45/93 a contention was raised stating that the trial court has no jurisdiction to entertain the suit and that the suit is under valued. Both sides contended that the respective suits against them are not maintainable. 6. It is admitted by both sides that the contention regarding the sufficiency of court fee paid was not raised by the defendants in the respective suits. In this connection the learned counsel for the appellant brought to the attention of this Court Section 21(2) of the Code of Civil Procedure. Section 21(2) of the C.P.C. mandates that no objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be entertained 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 -6- C.M.A.Nos.324 & 325/98 consequent failure of justice. 7. The learned counsel for the appellants submitted that the Lower Appellate Court has doubted the jurisdiction of the Munsiff's Court for the reason that the cause of action had arisen in the suit and the value of the property fixed by the parties in the agreement is Rs.1,77,500/-. The Lower Appellate Court took the view that if the value of the property is Rs.1,77,500/- it exceeds the pecuniary jurisdiction of the Munsiff's Court and therefore the said court has no jurisdiction to try the suit. 8. In the suit the plaintiff computed the annual income of the property at Rs.1,200/- and the suit is valued at Rs.12,000/-. The connected suit was filed for mandatory and prohibitory injunction and the same was valued under the relevant provisions of the Kerala Court Fees and Suits Valuation Act. Going by Section 21(2 ) of the C.P.C. neither the party can contend before the Lower Appellate Court that the trial court has no pecuniary jurisdiction to try the suit for the reason that the -7- C.M.A.Nos.324 & 325/98 valuation of the suit should have been at Rs.1,71,500/-. O.S.No.825/90 was resisted by the purchaser. No contention regarding the insufficiency of the court fee nor any contention was raised stating that the trial court has no jurisdiction to try the suit. In such a situation, the Lower Appellate Court ought not have entertained the contention raised by the appellant regarding the pecuniary jurisdiction of the Munsiff's Court and sufficiency of the court fee. Whether the court fee paid is correct or not and whether the trial court has no jurisdiction to try the suit are questions cannot be reopened at the appellate stage without the requisite pleadings at the trial stage and within the time permitted under Section 21(2) of the C.P.C. 9. The suit was mainly contested by the parties on merits. The purchaser contended that the seller lost his right over the property, that he was put in possession of the entire property and that he started residence from the date of agreement and therefore the suit filed for declaration is not maintainable. The -8- C.M.A.Nos.324 & 325/98 learned counsel for the purchaser submitted that the present suit for declaration and recovery of possession is not maintainable and that the remedy open to the plaintiff in O.S.No.825/90 is to sue for specific performance. He contended that the suit for recession of contract is not maintainable, in view of Sections 27 to 30 of the Specific Reliefs Act. The learned counsel also submitted that even assuming (not admitting) that the purchaser had failed to perform his part of the contract, then also the remedy open to the seller is to sue for specific performance of the contract or for recovery of the balance sale consideration. It is further contended that the suit is not maintainable. 10. The learned counsel for the seller submitted that the purchaser did not raise the question of maintainability of the suit and therefore the said contention is not available to the purchaser. Whether the suit is maintainable or not for different reasons is a question of law. The maintainability of the suit can be argued by the aggrieved party before the trial court, Lower -9- C.M.A.Nos.324 & 325/98 Appellate Court or even in the second appeal. The maintainability of the suit is a pure question of law, which goes to the root of the jurisdiction rendering the decree so passed in such a suit null and void. Therefore, even if such an objection/ground was not raised before the court below for so many years, it can certainly be raised and considered in second appeal as well. 11. The learned counsel for the purchaser further submitted that the purchaser is entitled to the get protection under Section 53A of the Transfer of Property Act, since he was put in possession of the property pursuant to the agreement for sale. 12. The learned counsel for the seller submitted that the property put in possession is not the entire property; but only a portion thereof. He further submitted that the conditions set out for getting protection under Section 53A are not satisfied in this case. Learned counsel for the purchaser submitted that in the pleadings Section 53A as such is not quoted, the pleadings will -10- C.M.A.Nos.324 & 325/98 show that the contention is regarding the protection under Section 53A of the Transfer of Property Act. Both sides produced copies of the agreement. None of the parties produced the original agreement. Both sides contended that the other side is having possession of the original agreement. Since the original agreement is not available and since there is no serious dispute regarding the terms and conditions of the agreement, the court below can mark the copies produced by both sides and can enter findings as to which is the copy of the original agreement. The terms and conditions of both the agreement are same; but in the agreement produced by the seller additional sentence was seen added in the property schedule. Going by the contentions raised by the parties, I am of the view that the matter can be decided on merits by the Lower Appellate court, since the question of sufficiency of court fee and the pecuniary jurisdiction need not be examined. The appeals against the order of remand were pending for the last 12 years. In the circumstances, necessary -11- C.M.A.Nos.324 & 325/98 directions can be issued to the Lower Appellate Court to decide the appeals as early as possible. 13. In the result, the order of remand passed by the Lower Appellate Court in A.S.Nos.45/93 and 153/98 is set aside. The Lower Appellate Court is directed to decide the appeals on merits and pass orders thereon within six months from today. The parties are at liberty to raise the contentions available to them including the question of maintainability of the suits, before the Lower Appellate court. C.M.Appeals are allowed. There will be no order as to costs. HARUN-UL-RASHID, JUDGE. kcv -12- C.M.A.Nos.324 & 325/98 HARUN-UL-RASHID,J. ----------------------------- C.M.A.NOS.324 & 325 OF 1998 ----------------------------- JUDGMENT 11TH FEBRUARY, 2010 -13- C.M.A.Nos.324 & 325/98