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RAM KUNWAR SINGH versus PRAMOD KUMAR & ANOTHER

High Court of Judicature at Allahabad

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Ram Kunwar Singh v. Pramod Kumar & Another - SECOND APPEAL No. 1201 of 1991 [2007] RD-AH 8690 (8 May 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Court No.19

Second Appeal No. 1201 of 1991

Ram Kunwar Singh & Ors. Vs. Pramod Kumar & Anr.

WITH

Second Appeal No. 1202 of 1991

Ram Kunwar Singh & Ors. Vs. Pramod Kumar & Anr.

~~~~~

Hon'ble Dilip Gupta, J.

These two Second Appeals have been filed by the defendants for setting aside the judgment and decree of the learned IInd Additional District Judge, Bijnor by which Civil Appeal No.49 of 1990 and Civil Appeal No. 48 of 1990 that had been filed for setting aside the judgment and decrees of the learned Munsif were dismissed.

Original Suit No. 504 of 1985 and Original Suit No. 505 of 1985 had been filed for cancellation of the sale deeds dated 28th June, 1995 purported to have been executed by the plaintiffs in favour of the defendants in respect of their half share in the plots in dispute and for possession of the sugar cane crops standing over the land by partition. In both the suits the allegations of the plaintiffs were common. It was asserted that the defendants had denied the rights of the plaintiffs over the land in dispute on the basis of the sale deeds dated 28th June, 1985 purported to have been executed by the plaintiffs in favour of the defendants; that they had never executed the sale deeds in favour of the defendants and the sale deeds were forged and fictitious documents which do not bear the signatures or the thumb impression of the plaintiffs and as both the parties had sown and grown the crops, it should be partitioned. The defendants filed written statements stating that the names of the plaintiffs had earlier been mutated in the revenue records due to mistake and the plaintiffs had executed the sale deeds in their favour. It was further asserted that the Civil Court had no jurisdiction to try the suit as it was barred under Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the ''Act'). Both the suits were consolidated and Original Suit No.505 of 1985 was made the leading case.

The learned Munsif by a common judgment partly decreed the suits holding that the respective sale deeds dated 28th June, 1985 had never been executed by the plaintiffs in favour of the defendants and the defendants had obtained the same from some impersonator. The sale deeds were, therefore, forged documents and were not binding on the plaintiffs and were, therefore, cancelled. The learned Munsif further held that the Civil Court had the jurisdiction to try the suit as it was not barred by Section 331 of the Act. The relief for partition of the crop was, however, denied.

The defendants filed two Civil Appeals namely Civil Appeal No.49 of 1990 and Civil Appeal No.48 of 1990 against the aforesaid judgment and decree. These two Civil Appeals were dismissed by common judgment. Two Second Appeals have accordingly been filed by the defendants.

I have heard Sri Anurag Khanna, learned counsel for the appellants and Sri Y.S. Bohra, learned counsel appearing for the respondents.

Learned counsel for the appellants submitted that in view of the provisions of Section 331 of the Act, the Civil Court could not have taken cognizance of the suits and, therefore, the judgments and decrees of the Court below are liable to be set aside. In support of his contention he has placed reliance upon the decision of the Supreme Court in Shri Ram & Anr. Vs. Ist Additional District Judge & Ors., (2001) 3 SCC 24 and the Full Bench decision of this Court in Ram Padarath & Ors. Vs. Second Additional District Judge, Sultanpur & Ors. 1989 (1) AWC 290.

Learned counsel for the respondents, however, submitted that the suit was clearly maintainable and the finding recorded by both the Courts below regarding maintainability of the suits does not suffer from any infirmity and in support of his contention he has placed reliance upon the decision of the Supreme Court in Smt. Bismillah Vs. Janeshwar Prasad & Ors., AIR 1990 SC 540.

The sole point for determination in this Second Appeal is whether the Civil Court had the jurisdiction to take cognizance of the suit and in order to appreciate this contention it would be necessary to reproduce the relevant portion of Section 331of the Act which is as follows :-

"331. Cognizance of suits, etc. under this Act.--(1) Except as provided by or under this Act no court other than a court mentioned in column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908) take cognizance of any suit, application, or proceedings mentioned in column 3 thereof or of a suit, application, or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application :

Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II in so far as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.

Explanation.--If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.

(1-A) Notwithstanding anything in sub-section (1), an objection that a court mentioned in column 4 of Schedule II, or as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the 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."

The main relief claimed by the plaintiffs was for cancellation of the sale deeds on the ground that they were not executed by them but by some impersonator and the ancillary relief was for possession of the crops standing over the land after partition. The names of the plaintiffs were recorded in the revenue records before the mutation was done in favour of the defendants on the basis of the sale deeds. The plaintiffs have not sought a declaration of their right or status as a Bhumidhar of the disputed plots.

Law is well settled that exclusion of the jurisdiction of the civil court is not to be readily inferred and that such exclusion must either be explicitly expressed or clearly implied and that it is for the party which contends that the Civil Court does not have the jurisdiction to establish this fact. In this connection reference may be made to the decision of the Supreme Court in Abdul Waheed Khan Vs. Bhawani and others reported in AIR 1966 SC 1718 :-

"It is settled principle that it is for the party who seeks to oust the jurisdiction of civil court to establish his contention. It is also equally well settled that a statute ousting the jurisdiction of a civil court must be strictly construed."

A Full Bench of this Court in Ram Padarath and others Vs. Second Addl. D.J., Sultanpur and others reported in 1989 (15) A.L.R. 19 very elaborately dealt with the issue relating to cognizance of suits under Section 331 of the Act and observed :-

"Suit for cancellation of a sale-deed or other instruments and documents are essentially suits of civil nature. Every suit of civil nature is cognizable by a civil court except cognizance of which is expressly or impliedly barred.

Section 31 of the Specific Relief Act makes specific provision for cancellation of void as well as voidable instrument. Suits for cancellation of such documents being of civil nature are cognizable by a civil court and even otherwise suits claiming relief provided under Specific Relief Act are entertainable only by a civil court and no revenue court or any other court can entertain such a suit including for cancellation of an instrument or document.

..............

Thus one who has reasonable apprehension that any instrument if left outstanding may cause him serious injury can approach a competent court of law to get it cancelled. Sub-section (2) of Section 31 casts a mandatory duty upon the court passing a decree to send a copy of the same to the registering officer, who is enjoined by law to make a note on the copy of such document regarding the order of its cancellation passed by a particular court and after such an endorsement is made, the document becomes legally ineffective and no benefit of the same can be derived by any one. If a certified copy of such a document is issued it would obviously contain the note regarding its cancellation by a court of law.

So far as voidable documents like those obtained by practicing coercion, fraud, misrepresentation, undue influence etc., are concerned, their legal effect cannot be put to an end without its cancellation. But a void document is not required to be cancelled necessarily. Its legal effect if any can be put to an end to by declaring it to be void and granting some other relief instead of cancelling it."

.................

"Section 331 of the U.P. Zamindari Abolition and Land Reforms Act excludes the jurisdiction of civil court in respect of those matters for which relief can be had from the revenue court by means of a suit, application or proceedings mentioned in Schedule II to the ''Act'. Section 331 of the Act, if read without Explanation, does not create any difficulty. Dispute regarding jurisdiction arises when Explanation which is an integral part of the section is interpreted and applied to the facts of a particular case. The object of Explanation to any statutory provision is to understand the Act in the light of the Explanation which ordinarily does not enlarge scope of the original section which it explains, but only makes its meaning clear beyond dispute. The Explanation thus makes the things still more explicit and exists primarily removing doubts and dispute which may crop up in its absence. Section 331 of the ''Act' along with Explanation cannot be read so as to oust the jurisdiction of civil court if the primary relief on the same cause of action can be granted by the civil court notwithstanding the fact the consequential relief or ancillary relief flowing out of the main relief the grant of which also becomes necessary can be granted by revenue court alone.

In the case of void document said to have been executed by a plaintiff during his disability or by some one impersonating him or said to have been executed by his predecessor whom he succeeds, the relief of cancellation of the document is more appropriate relief for clearing the deck of title and burying deep any dispute or controversy on its basis in presenti or which may take place in future. The document after its cancellation would bear such an endorsement in Sub-Registrar's register and would be the basis for correction of any paper and revenue record including record of register. Section 31 of the Specific Relief Act itself prescribes as to who can seek relief of cancellation. A third person cannot file a suit for cancellation of a void document. If in fact no decree for cancellation was needed and real and effective relief could be granted by the revenue court only, the civil court decree would even then be valid and not void if no objection to the same was taken before the trial court. If such an objection was taken before the trial court before framing of issues and objections continued to be taken before appellate and revisional court and there has been failure of justice because of change of forum then the civil court decree could be said to be without jurisdiction." (emphasis supplied)

The Supreme Court in the case of Smt. Bismillah (supra) relied upon the aforesaid decision of the Full Bench of this Court in Ram Padarath (supra) and also observed that the question of jurisdiction depends upon the allegations made in the plaint and not the merits or the result of the suit :-

" .............  It is settled law that the exclusion of the jurisdiction of the Civil Court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. The provisions of law which seek to oust the jurisdiction of Civil Court needs to be strictly construed. Section 331 of the Act has been the subject of series of pronouncements of the High Court as to the circumstances and the nature of the suits in which its exclusionary effect operates. Distinction was sought to be drawn between the class of cases where the binding effect of a deed had had to be got rid of by an appropriate adjudication on the one hand and the class of cases in which a transaction could be said to be void in law where what the law holds to be void, there is nothing to cancel or set aside on the other. In the former case, it was held, a suit was cognizable by the Civil Court while in the later, it was not, it being open to the statutory authority to take note of the legal incidents of what was non est.

 

............... It is true that the question of jurisdiction depends upon the allegations in the plaint and not the merits or the result of the suit. However, in order to determine the precise nature of the action, the pleadings should be taken as a whole. If as, indeed, is done by the High Court the expression ''void' occurring in the plaint as descriptive of the legal status of the sales is made the constant and determinate and what is implicit in the need for cancellation as the variable and as inappropriate to a plea of nullity, equally, converse could be the position. The real point is not the stray or loose expressions which abound in inartistically drafted plaints, but the real substance of the case gathered by construing pleadings as a whole. It is said "parties do not have the farsight of prophets and their lawyers the draftsmanship of a chalmers".

A learned Judge of this Court in Smt. Chhanga & Anr. Vs. Ist Additional District Judge, Jaunpur & Ors., 1998 (3) AWC 2094 while examining almost a similar controversy where the defendant had got his name mutated in the revenue record on the basis of the alleged sale deeds, held that Civil Suit was maintainable :-

"...............

I am unable to persuade myself to agree with the contention of Mr. Prem Chandra in the facts and circumstances of the case, inasmuch as in the present case admittedly the name of the defendant was recorded as tenure-holder only by virtue of the alleged sale deed, therefore, for the purpose of seeking cancellation of the sale deed prima facie the plaintiff had a title in respect of the property which was recorded in her name prior to the alleged execution of the sale deed. If the name of the defendant has been recorded subsequent to the alleged execution of the sale deed that will not turn the table to dispel the ratio decided by the Full Bench in the present case. Then again the relief that might be claimed by the plaintiff would be only a consequential relief, if she succeeds in getting the sale deed cancelled. However, she has not asked for any such relief. If relief in the suit is granted, it would not necessarily change any status or right between the parties. In case she fails in the suit, then also no status or right under the revenue authority is required to be adjudicated upon. Therefore, the ratio decided by the Full Bench as referred to be in the case of Ram Padarth (supra) applies in the present case with full force. Same view has been taken by this Court following the decision in the case of Ram Padarth (supra) by a learned single Judge in the case of Dwarika Singh v. District Judge, Jaunpur and others, 1996 RD 291. Similar view was taken in the decision in the case of Sadaruddin and others v. District Judge, Allahabad and others, 1996 RD 287, by me relying on the decision in the case of Ram Padarth (supra). The decision in the case of Ram Padarth (supra), was also followed in the case of Radhey Shyam v. District Judge, Gorakhpur and others, 1993 AWC 836. The decision of Full Bench in the case of Ram Padarth (supra), was relied upon by the Supreme Court in the case of Bismillah v. Janeshwar Prasad, AIR 1990 SC 540." (emphasis supplied)

While deciding the aforesaid case the learned Judge also very elaborately analysed the provisions of Sections 229, 229B and 229C mentioned at Serial No. 34 of Schedule II and observed as follows :-

"Now Serial No.34 of Schedule II deals with suit for declaration of right under Sections 229, 229B and 229C. Therefore, if the present suit is a suit for declaration within the meaning of Sections 229, 229B and 229C and in that event the suit before the civil court cannot be entertained. Section 229 deals with declaration that might be sought for by the Gaon Sabha against any person claiming to be entitled to any right in any land for the declaration of the right of such person in such land. Thus Section 229 is a right given to the Goan Sabha to institute a suit against any person. This provision does not apply to a suit between two private individuals both of whom are claiming to be Bhumidhars in respect of the land, one by reason of the alleged sale deed and the other by reason of non-execution of such sale deed.  Therefore, the present suit does not come within the purview of Section 229. Similarly, the preent suit also does not satisfy the criteria provided under Section 299C under which the Gaon Sabha or a Bhumidhar of any land may sue any person claiming to be an asami of such land for a declaration of the rights of such person, which is not a case in the present one since both the parties are seeking themselves to be Bhumidhars against each other. Now Section 229B sub-section (1) confines to a declaration in respect of a person claiming to be an asami under a land holder for a declaration of his right as asami in such holding or any part thereof, as the case may be. Therefore, the present suit also does not come within the purview of sub-section (1) of Section 229B. Sub-section (3) of Section 229 provides that the provisions of sub-sections (1) and (1) shall apply mutatis mutandis in a suit by a person claiming to be a Bhumidhar under a land holder which is to mean the State Government and the Gaon Sabha. Therefore, the dispute, contemplated in sub-section (3) of Section 229B, is between the Bhumidhar and the State Government or the Gaon Sabha, as the case may be. It does not contemplate a dispute between two Bhumidhars. Neither the Goan Sabha nor the State Government is disputing the right of these Bhumidhars to the extent that either of them may be Bhumidhar. Whether the plaintiff is the Bhumidhar or the defendant is the Bhumidhar, it may be a dispute between two Bhumidhars but it is not a dispute between either of them and the State Government or the Gaon Sabha. In the present case, plaintiff has claimed cancellation of deed on the ground mentioned in the suit. Int the suit, she has not claimed any declaration of right nor she has asked for any consequential relief in the suit. Thus, the plaintiff has also not claimed any right in respect whereof any proceedings can be had before the revenue authority nor she is claiming any right which can be had before any of the authority mentioned in Column 4 in respect of any relief mentioned in Column 3. The suit is a suit for cancellation of sale deed. No declaration of right either as Bhumidhar or otherwise is being asked for in the suit and that too, not against the State Government or the Gaon Sabha. Thus, the suit does not fall within the purview of Section 229B as well."

The Supreme Court in Shri Ram (supra) approved the view taken by the Full Bench in Ram Padarath (supra) and observed as follows :-

"On analysis of the decisions cited above, we are of the opinion that where a recorded tenure-holder having a prima facie title and in possession filed suit in the civil court for cancellation of sale deed having been obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure-holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure-holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the Revenue Court, as the sale deed being void has to be ignored for giving him relief for declaration and possession."

In the present case the names of the plaintiffs were earlier recorded as tenure-holders and it is only by virtue of the sale deeds purported to have been executed by the plaintiffs in favour of the defendants that the names of the defendants were recorded as tenure-holders. In Smt. Chhanga (supra) it was held that the suit for cancellation of the sale deed in such circumstances, maintainable in the Civil Court as prima facie the plaintiffs had a title in respect of the property. The decision of the Full Bench of this Court in Ram Padarath (supra) was also considered and it was observed that the ratio decided by the Full Bench applies with full force because if the name of the defendant had been recorded on the basis of the alleged execution of the sale deed then that will not dispel the ratio of the Full Bench.

I entirely agree with the view taken by the learned Judge in Smt. Chhanga (supra) and, therefore, hold that the Suits were clearly maintainable before the Civil Court. The same view was expressed by this Court in Jai Singh Vs. IInd Additional District Judge, Muzaffarnagar & Ors., 2001 (4) AWC 2826 and Smt. Kalindi & Anr. Vs. IIIrd Additional District Judge, Deoria & Ors., 2001 (3) AWC 1978.

There is, therefore, no error in the judgments of the Courts below holding the suits to be maintainable before the Civil Court..  

Even otherwise, Section 331(1-A) of the Act provides that objection regarding jurisdiction of the Civil Court shall not be entertained by any Appellate or Revisional Court unless the objection is taken before the Court in the first instance at the earliest possible opportunity and unless there had been a consequent failure of justice. It is, therefore, clear that both the two conditions namely that the objection must be taken before the Court of first instance at the earliest possible opportunity and secondly there was a consequent failure of justice have to be satisfied.

In this connection it may be pertinent to refer to the decision of a learned Judge of this Court in Parashuram Tewari Vs. Bhanu Pratap Tewari, 1974 RD 176. The Court examined the provisions of Section 331(1-A) and also the decision of the Full Bench of this Court in Thakur Dhyan Singh Vs. Indra Pal Singh, 1973 ALJ 193 and observed as follows :-

"In the aforementioned Full Bench case of our Court in Thakur Dhyan Singh's case it has been laid down that it debars a litigant from raising the question of jurisdiction either of the civil or of the revenue court in an appeal or revisional court unless the two conditions mentioned in it are satisfied."

The two conditions mentioned in the said sub-section are, firstly, that the objection to the court's jurisdiction must have been taken in the court of first instance at the earliest possible opportunity, and, secondly, there must have been a consequent failure of justice on account of the trial taking place in the wrong court. It has not been shown to me as to how the defendants-appellants were prejudiced by the trial of the suit in the civil court. I am not satisfied that there has been a failure of justice on account of the trial in the civil court. Therefore, even though the first condition laid down in the said sub-section has been satisfied in this case, the second condition remains unfulfilled. Therefore, in the second appeal, I cannot entertain the objection which has been raised by the defendants-appellants on the question of jurisdiction. Sub-section (1-A), which has been inserted in Section 331, is almost identical with Section 11 of the U.P. Suits Valuations Act and Section 21 of the Civil Procedure Code. ........."

The Court thereafter drew an analogy from the aforesaid two Sections namely Section 11 of the U.P. Suits Valuations Act and Section 21 of the Civil Procedure Code and after referring to the decision of the Supreme Court in Kiran Singh Vs. Chaman Paswan, AIR 1954 SC 34 observed that both the conditions must be satisfied.

In Kiran Singh (supra) the Supreme Court had observed :-

"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, 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 words ''unless the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits' in Section 11 clearly show that the decrees passed in such cases are liable to be interfered with in an appellate Court, not in all cases as is mentioned in the section results and 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.

The prejudice on the merits contemplated by Section 11 must be directly attributable to over-valuation. An error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over-valuation or under-valuation. Mere errors in the conclusions on the points for determination cannot, therefore, be held to be prejudice within the meaning of that section. Further, an appellate Court has no power under Section 11, S.V. Act, to rehear the appeal and to consider whether the findings of fact recorded by the lower Court are correct." (emphasis supplied)

In Raj Bahadur Singh v. Smt. Gaura, 1977 RD 165, it was observed:

"In my view, even though the question of jurisdiction was raised at the earliest stage by the defendants-appellants still, the second condition laid down in the said provision has not been satisfied in the instant case. The second condition is that there should be a consequent failure of justice by the trial in the wrong forum. It has not been shown to me that by the trial of the suit in the Civil Court there was any consequent failure of justice. This provision is in line with S. 11 of the Suits Valuation Act and S.21 of the Code of Civil Procedure. The purpose of these analogous provisions is not to allow a decree, delivered after contest in the wrong Court, to be questioned in the appellate or revisional Court merely on the ground of want of jurisdiction unless it is shown that prejudice has been caused or there has been failure of justice in consequence of the trial in the wrong forum. It has been judicially held that prejudice is not to be equated with the error in a finding recorded by the wrong forum. In the same manner, prejudice is not shown to be caused merely because the wrong forum has tried the suit. A reference may be made to Kiran Singh v. Chaman Paswan (AIR 1954 SC 340) in this connection. The controversy was considered with reference to S. 11 of the Suits Valuation Act and S.21 of the Civil P.C. and, as I observed above, in my view, the newly added provision in sub-sec. (1-A) of Sec. 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1951, is substantially analogous to the aforesaid provisions in the Suits Valuation Act and the Civil P.C. In this view of the matter also, I hold that the question of jurisdiction cannot be allowed to be raised in the instant second appeal at this stage." (emphasis supplied)

A Division Bench of this Court in Nasiruddin & Ors. Vs. Ram Swarup & Ors., 1978 All. L.J. 1316 while interpreting the provisions of Section 331(1-A) of the Act observed :-

"................ In the instant case in view of the fact that an issue had been framed by the trial court on the question of its jurisdiction to try the suit, it may be taken that the appellant has succeeded in establishing that he had raised the objection with regard to trial court's jurisdiction to try the suit before framing of issues and that the first condition enabling him to raise such an objection before the appellate and revisional court has been made out. However, before the appellant can be heard on the point he has still to show that the other condition viz.-- that a wrong decision by the trial court on the question of jurisdiction has occasioned a failure of justice.

Apart from contending that a failure of justice has been occasioned because the suit was in fact not triable by the civil court, learned counsel for the appellant was not able to bring anything to our notice to show that trial of the suit by the civil court has resulted in injustice. ............"

Another Division Bench of this Court in Sabha Chand & ors. v. Narayan Singh & ors., 1981 ALR 298, considered the scope of sub-section (1-A) of Section 331 of the Act and observed :-

"Section 331 of the U.P. Zamindari Abolition and Land Reforms Act 1951 lays down that no Court other than a Court mentioned in Column 4 of Schedule II shall take cognizance of any suit for partition of Bhumidhari land. Entries contained in Schedule II provide that suit for partition of Bhumidhari land is cognizable by Assistant Collector 1st Class. Since Section 331 provides special forum for filing suit for partition of agricultural land, Civil Court has no jurisdiction to entertain such a suit. The question whether the suit is cognizable by a Civil Court or by a revenue Court has often given rise to multiplicity of proceedings and unnecessary litigation which has often resulted into great hardship to the litigant public. Many a times the question of jurisdiction was raised even at the second appellate stage or even under Art. 136 of the Constitution and in some cases it was found that the Court had no jurisdiction to entertain suit as it happened in Chandrika Misir and another v. Bhaiyalal (1). In order to meet the situation the Legislature intervened and enacted Section 331 (1-A) (added by U.P. At No. 4 of 1969) which lays down that it is not open to a party to raise the question of absence of jurisdiction unless the objection was taken by it in the Court of first instance at the earliest possible opportunity or before the settlement of issues. Even if such an objection is raised, the party has further to prove that there has been failure of justice and he suffered on account of the Civil Court taking cognizance of the suit. The conditions must be satisfied before the question of jurisdiction can be raised before an appellate or revisional Court. Firstly, the objection must be taken before the trial Court at the earliest stage and secondly, the party must show that there has been failure of justice on account of the suit being tried by the Civil Court. If either of the two conditions are not fulfilled, it is not open to party to raise the question of jurisdiction before the appellate Court or the revisional Court and a decree or order passed by the Civil Court shall be valid notwithstanding the provisions contained in Section 331 of the Act......" (emphasis supplied)

In Baldeo Vs. Beni Lal Kedia & Ors., 1981 All. C.J. 148 yet another Division Bench of this Court observed that since the appellant failed to satisfy the Court that the trial of the Suit by the Civil Court resulted into failure of justice, the second condition stipulated in Section 331(1-A) of the Act was not satisfied and, therefore, the appellant was not entitled to raise the question of jurisdiction before the Court.

In Mohan Lal v. Banwari Lal, 1982 All. L. J. 971, it was observed :-

"Section 331 (1A) of the U.P. Act No. 1 of 1951 clearly lays down that no objection to the lack of jurisdiction of a Court would be entertained unless, apart from other requirements mentioned in the said provision, it was also shown that there had been a consequent failure of justice, i.e. failure of justice in consequence of the trial having taken place in the Court which lacked jurisdiction."

The Full Bench of this Court in Ram Padarath (supra) also considered this aspect and observed :-

"Section 331 (1-A) of the ''Act' provides that objection to the jurisdiction of court is to be taken before framing of issue, otherwise its notice will not be taken by appellate or revisional court also with a further rider that unless there is failure of justice, notice of such objection will not be taken by the superior court. As frivolous and technical pleas of jurisdiction every now and then were being taken which resulted in lingering on proceedings and delay or defeat of justice, the U.P. Legislature by U.P. Act No. IV of 1969 inserted Section 331(1-A) extracted earlier in the U.P. Zamindari Abolition and Land Reforms Act. The statement of objects and reasons for U.P. Act No. IV of 1969 itself provides that the said amendment was being made as it was considered necessary in order to curtail frivolous and technical pleas in litigation. The statements and the reasons of a statute cannot be ignored and are to be given due importance and are the safest guide for interpreting a particular statute.

...............

...............

The reasons which led the State Legislature to insert Section 331(1-A) in the ''Act' show that the legislature intended to put an end to frivolous and technical pleas of jurisdiction. The reasons of the amendment rather discourage plea of jurisdiction unless it is really not substantial plea. In doubtful cases the civil court's jurisdiction can easily be not ousted and a person is not to be deprived from real relief desired and made to remain satisfied with some relief in the present only.

Section 331(1-A) of U.P. Zamindari Abolition and Land Reforms Act is analogous to Section 21 of Civil Procedure Code. Section 21 of the Civil Procedure Code is also in similar language. Section 331(1-A) of U.P. Zamindari Abolition and Land Reforms Act, like Section 21 of Civil Procedure Code, requires that all the three conditions must co-exist i.e., objection is raised before the trial court before framing of the issues and that there has been no failure of justice and the appellate court or revisional court cannot entertain such an objection except when it is established that there has been failure of justice in trial of the proceedings in the court.

The Supreme Court interpreting Section 21, C.P.C. In Koapilan Umeen's daughter Pathumman and other v. Koopilan Umen's son Kuntalan Kutty dead by LRs. and others observed that all the three conditions mentioned in Section 21(1) of the Civil Procedure Code must co-exist and the failure of justice can be inferred only from the material and record. This indicates that unless it is not established that because the case was taken cognizance of by a particular court and a party was deprived from tendering evidence or because of procedural defect or difficulty he could not get full opportunity to substantiate his case or things of like nature and the same resulted in failure of justice, the plea of jurisdiction can be entertained only in such circumstances." (emphasis supplied)

In Kunwar Singh and ors. v. Sri Thakurji Maharaj, reported in 1992 AWC 890, this Court dealt with the contention that the Civil Court had no jurisdiction to entertain the suit as the principal relief claimed was for possession of agricultural land after dispossessing the defendants and observed:-

".....Section 331 (1-A) of the Act is a complete answer. It emphasises that before an appellate or revisional Court entertains the objection of jurisdiction it has to be satisfied by the party making the grievance that there has been a failure of justice. Nothing has been shown by the appellants which may even remotely suggest that they have been in any manner prejudiced by the trial of the suit by a competent Civil Court rather than a Revenue Court. No occasion has, therefore, arisen of failure of justice."

The policy underlying S. 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 objection 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 Supreme Court explained S.21(1) of Code of Civil Procedure in R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd., AIR 1993 SC 2094 and observed:-

"........Sub-section (1) of Section 21 of the Code of civil Procedure provides that 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 consequent failure of justice. The above provision clearly lays down that such objection as to the place of suing shall be allowed by the appellate or revisional court subject to the following conditions:

(i) That such objection was taken in the court of first instance at the earliest possible opportunity;

(ii) in all cases where issues are settled then at or before such settlement of issues;

(iii) there has been a consequent failure of justice.

In the present case though the first two conditions are satisfied but the third condition of failure of justice is not fulfilled. As already mentioned above there was no dispute regarding the merits of the claim. The defendant has admitted the deposit of Rs. 10,00,000 by the plaintiff, as well as the issuing of the five cheques. We are thus clearly of the view that there is no failure of justice to the defendant by decreeing of the suit by the learned Single Judge of the Bombay High Court, on the contrary it would be totally unjust and failure of justice to the plaintiff in case such objection relating to jurisdiction is to be maintained as allowed by the Division Bench of the High Court in its appellate jurisdiction."

In view of aforesaid decisions, there cannot be any doubt that the two conditions prescribed in sub-section (1-A) for entertaining an objection regarding jurisdiction of forum, should be conjunctively satisfied. In other words, a person taking an objection to the jurisdiction has to satisfy that he took the objection in the Court of first instance and in all cases, where issues are settled, at or before such settlement, and secondly that there has been a "consequent failure of justice". Such legislative policy is for the reason that when a case has been tried by a Court on merits and judgment has been delivered, such judgment should not be reversed purely on a technical ground. Whether a suit has been tried by a Revenue Court or by a Civil Court and the trial has not prejudiced any party resulting in failure of justice, no fruitful purpose would be achieved by setting aside such judgment on ground of technicality pertaining to jurisdiction.

In the present case, though the defendants-appellants had raised the objection on the question of jurisdiction, but the same cannot be entertained as the second condition regarding "consequent failure of justice" remains unfulfilled. Thus, for this reason also the Second Appeals are liable to be dismissed.

The Second Appeals are, accordingly, dismissed at the admission stage.  

Date: 8.5.2007

GS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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