1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR M.C.A. NO. 322/2007 (Review) In Second Appeal No. 593/2005 Sau. Tursabai w/o Surendra Sarjare & another Vs. Sau. Ratnakalabai @ Urkundibai w/o Dharamdas Nandgaye & 2 others. Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------ CORAM : A.P. LAVANDE, J. Order reserved on 19.6.2009 Order pronounced on 26.6.2009. Heard Mr. W.G. Charde, Adv. with Adv. O.W. Gupta for the applicants and Ms. Nivedita Mehta, Adv. with Mr. S.P. Bhandarkar, Adv. for respondent no.1. Mr Y.Y. Ghurde, Advocate for the respondents 2 and 3 is absent. By this application, the applicants seek review of the order dated 20th October, 2006 passed by this Court dismissing Second Appeal No. 593/2005 at the admission stage. The applicants were defendants 1 and 3 in Regular Civil Suit No. 49/1999 filed by respondent no.1 against the applicants, respondents 2 and 3 and one more defendant who has expired. The suit was filed seeking declaration that the sale deed dated 31.5.1996 executed by deceased Ramchandra in favour of defendants 1 to 3 was null and void and seeking partition and separate possession. The trial Court dismissed the suit, however, gave findings on merits in favour of the plaintiff. Defendants 1 to 3 preferred Regular Civil Appeal No. 12/2002 to the District Court, Bhandara against the judgment and decree passed by Civil 2 Judge, Jr. Dn. Arjuni in Regular Civil Suit No. 49/1999. The lower Appellate Court allowed the appeal. The lower Appellate Court set aside the finding of the trial Court on Issue nos. 3 to 6 and held that the plaintiff and defendant no.1 have half share in the suit property and further ordered partition by metes and bounds. The lower Appellate Court also declared the sale deed dated 31.5.1996 null and void and not binding on the appellants. Aggrieved by the said decree, defendants 1 and 3 preferred Second Appeal No. 593/2005 which was dismissed by order dated 20/10/2006. Before this Court two points were urged by the appellants namely (i) The Civil Judge, Jr. Dn. which had jurisdiction to try the suit valued up to Rs. 25,000/- at relevant time had no jurisdiction to try the suit, (ii) It was not necessary for the defendants to file cross-objection in the appeal preferred by the original plaintiff. This Court by order dated 20.10.2006 dismissed the Second Appeal at the admission stage. This Court while dismissing the second appeal held that the valuation of the suit depends upon the averments made in the plaint and not averments in the written statement and consequently rejected the contention. Insofar as second ground is concerned, this Court held that since the trial Court had given findings in favour of the plaintiff in the absence of cross-objection in appeal, the said findings could not have been said set aside and, therefore, no interference was called for with the impugned decree passed by the lower Appellate Court. Mr. Charde, learned counsel appearing on behalf of the applicants submitted that the property forming subject matter of the sale 3 deed was valued at Rs. 1,52,500/- as per the sale deed itself and as such the trial Court who had jurisdiction to try the suit valued up to Rs. 25,000/- had no jurisdiction to entertain the suit. According to learned counsel, this aspect has not been considered by this Court while dismissing second appeal and as such there is error apparent on the face of record. In support of his submission, learned counsel relied upon the judgment of this Court reported in Abdul Gaffar S/o Abdul Samad Vs. Niranjan Kumar S/o Ramnth Prasad Dwivedi 2005 (3) ALL MR 179. Learned counsel further submitted that since the trial Court had no jurisdiction to entertain the suit, the trial Court ought to have returned the plaint. In support of his submission, reliance was placed on the judgment in the case of Khimji Jiva and others V. Narendrakujmar Maganlal Shah and others : AIR 1972 Gujarat 280. Insofar as second ground is concerned, learned counsel submitted that since the trial Court had dismissed the suit after giving findings in favour of the plaintiff, it was not necessary for the defendants- applicants to file cross-objection in appeal preferred by the plaintiff. He placed reliance upon the judgment of the Apex Court in the case of Ravinder Kumar Sharma vs. State of Assam and others : (1999) 7 SCC 435 and submitted that the finding of this Court that in the absence of cross- objection the defendants could not have challenged the findings in favour of the plaintiff is patently contrary to the ratio laid down by the Apex Court and, therefore, discloses an error apparent on the face of record justifying review of the order. Per contra, Ms. Mehta, learned counsel for respondent no.1 submitted that the applicants had submitted to the jurisdiction of the trial Court and as such they are not entitled to raise issue of pecuniary 4 jurisdiction in Second Appeal. Placing reliance upon Section 21 of the Code of Civil Procedure and the judgment of the Apex Court in the case of Subhash Mahadevasa Habib Vs. Nemasa Ambasa Dharamdas (D) by LRS. & others. 2007 (5) Scale 34, learned counsel submitted that this Court has rightly rejected the contention of the applicants while dismissing the second appeal. Insofar as second ground is concerned, learned counsel submitted that this Court has rightly held that in the absence of cross- objection in appeal preferred by the plaintiff, the applicants could not have challenged the findings in favour of the plaintiff. Learned counsel, therefore, submitted that no case has been made for reviewing the order passed by this Court. I have carefully considered the submissions made by learned counsel for the parties and perused the records as well as the authorities relied upon. The question which arises for consideration is whether the order sought to be reviewed discloses an error apparent on the face of record. Insofar as the first ground is concerned, it is the case of the applicants that since the plaintiff-respondent no.1 has sought declaration that the sale deed was null and void and since the value of the property mentioned in the sale deed was Rs. 1,52,500/-, the suit should have been valued at Rs. 1,52,500/- and corresponding Court fees ought to have been paid by the plaintiff. It is the case of the applicants that the Civil Judge, Jr. Dn. Arjuni had no jurisdiction to try such suit in the year 1996 since Civil Judge, Jr. Dn. could try the suit valued up to Rs.25,000/-. Even if, Bombay Civil Courts Amendment Act, 1998 which came into force in the 5 year 1999 by which jurisdiction of the Civil Judge, Jr. Dn. was extended up to Rs.One lakh is considered, still the suit could not have been tried by Civil Judge, Jr. Dn. Arjuni. It is pertinent to note that in the written statement filed by the applicants the question of jurisdiction was specifically raised although no specific issue was framed by the trial Court. However, the trial Court in the judgment held that the provisions of Section 6 (iv)(ha) of the Bombay Court Fees Act, 1959 bars pecuniary jurisdiction of this Court and hence answered the issue in negative. This finding was given while answering issue no.3 which reads thus:- “Is the plaintiff entitled to the partition and separate possession of her share as prayed?” The Appellate Court further held that even if the defendants were right in their contention, at the most, the suit could be valued at Rs. 76,250/- for the purpose of Court fees and jurisdiction and as such fell within pecuniary jurisdiction of the trial Court. In the case Abdul Gaffar s/o Abdul Samad (supra) learned Single Judge of this Court after placing reliance upon the judgment of this Court has held that half of ad valorem Court fees leviable on the property has to be paid in terms of Clause (ha) as amended in the year 1996. In view of this judgment and in view of the submission of Mr. Charde the question which arises is whether the trial Court had jurisdiction to entertain the suit valued up to Rs. 25,000/- in the year 1996. In my opinion this aspect has not been correctly appreciated while passing the order dated 20th October, 2006. Therefore, there is an error apparent on the face of record and as such the order needs to be reviewed. Insofar as second ground is concerned, the issue is no more res 6 integra and is covered by the judgment in the case of Ravinder Kumar Sharma (supra) relied upon by Mr. Charde. In the said case the Apex Court has held that in terms of Order 41 Rule 22 of the Code of Civil Procedure (as amended in 1976) the filing of cross-objection by the defendant to attack an adverse finding is optional. This being the position, the finding given by this Court that in the absence of cross-objection, the defendant could not have challenged the findings in favour of the plaintiff discloses error apparent on the face of record and, therefore, the order deserves to be reviewed on this ground. The authority relied upon by Ms. Mehta does not advance the case of respondent no.1 since the defendants had challenged the jurisdiction of the Court in their written statement. For the reasons aforesaid, the application is allowed and the appeal is admitted on the following substantial questions of law:- (i) Whether the trial Court had pecuniary jurisdiction to entertain Regular Civil Suit No. 49/1999 filed by respondent no.1 against the defendants? (ii)Whether the finding of the lower Appellate Court that the findings given by the trial Court in favour of the plaintiff could not have been challenged by defendants without filing cross-objection is illegal? JUDGE Ambulkar