Dismissed

Vinay Juneja v. Kailash Khullar and Another

Allahabad HC17 May 2018A227/3490/2018

Case brief

AI extract

What is this about?

The High Court in supervision under Article 227 held that a transfer order was not perverse despite pecuniary jurisdiction concerns. Relying on Supreme Court precedents, the Court ruled that lack of pecuniary jurisdiction does not render a decree a nullity if the court exercised jurisdiction on merits and no objection was raised earlier.

What did the court decide?

Petition dismissed; case treated as transferred to the Judge, Small Causes Court for execution purposes.

Vinay Juneja Vs Kailash Khullar and Another — Landlord and Tenant | Allahabad HC (2018)

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Court No. - 26

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Case :- MATTERS UNDER ARTICLE 227 No. - 3490 of 2018

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Petitioner :- Vinay Juneja Respondent :- Kailash Khullar And Another Counsel for Petitioner :- Kiran Kumar Arora

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Hon'ble Mrs. Sangeeta Chandra,J.

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(Oral)

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This petition has been filed challenging the order of transfer passed by District Judge dated 26.04.2018 in Transfer Application No. 49/74 of 2018 (Kailash Khullar Vs. Vinay Juneja).

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An Application had been moved by the tenant with a prayer that Misc. Case No. 122/74 of 2016 (Kailash Chandra Vs. Vinay Juneja) under Section 47 of the C.P.C. and Execution Case No. 1 of 2016 (Vijay Vs. Khulla Book Stall) be transferred from the Court of Additional District Judge, Court Room No. 52, Kanpur Nagar to the court of Judge, Small Causes, Kanpur Nagar. This Application was moved on the ground that by a notification dated 07.12.2015 the cases for recovery of arrears of rent valued up to Rs. 1 lac shall be dealt with by Judge, Small Causes Court and not by the Court of District Judge. The Additional District Judge, Fast Track Court, Room No. 52, Kanpur Nagar, however, had decided the Suit No. 138 of 2015 on 04.04.2016 exparte and the decree should not be executed as it was by an incompetent court.

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The learned counsel for the petitioner states that tenants' application for restoration was rejected on 13.10.2016. Thereafter, the tenant preferred writ petition No. 54194 of 2016, which was also dismissed on 17.11.2016. The transfer application has been allowed according to the counsel for petitioner on misconceived grounds that the execution case cannot go on in a court which does not have jurisdiction after 07.12.2015.

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The learned counsel for the petitioner has referred to a judgement rendered by this Court in SCC Revision No. 171 of 2017 decided on 30th of August, 2017: M/s.

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Pankaj Hotel Vs. Bal Mukund reported in 2017 (9) ADJ 516 to say that the said judgment is a later judgment and it has considered all earlier binding precedents of this Court and of the Supreme Court and has laid down the law in paragraph - 65 thereof.

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According to the judgment in M/s. Pankaj Hotel (supra) this Court has observed that there is nothing in the U.P. Civil Laws Amendment Act, 2015 which provides that after enhancement of valuation, the suit pending before the court will automatically be transferred. Section 15 (2) of the Provincial Small Causes Court Act, 1887 operates subject to any other enactment for the time being in force. Therefore, under Section 25(2) of the Bengal, Agra and Assam Civil Courts Act, 1887 and the Notification No. 525 dated 25.10.1972 issued thereunder would continue to operate. The High Court has conferred upon all District Judges and Additional District Judges the jurisdiction of a court of Small Causes for trial of all suits irrespective of their valuation. The High Court in conferring this power on the District Judges and the Additional District Judges, exercised its overriding jurisdiction and it follows that the District Judges and Additional District Judges have no pecuniary limitation to entertain, try and decide the suits of nature of small causes. When the notification was issued under the Civil Laws Amendment Act, 2015 it did not take away the power exercised by the District Judges and Additional District Judges exercising the jurisdiction of Judge, Small Causes Court wherever there is a relationship of lessor and lessee and lease has been determined.

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It is on the basis of this judgment in M/s. Pankaj Hotel (supra) was cited before the District Judge in the Transfer Application by the petitioner-landlord, it has been argued by Shri K.K. Arora that a reference by the District Judge in the order impugned to a judgment rendered in Shobhit Nigam Vs. Batulan and another reported in 2016 (10) ADJ 230 is misconceived.

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In Shobhit Nigam Vs. Batulan and another (supra) this Court had observed that w.e.f. 7th December, 2015 the jurisdiction to try all suits between lessor and lessee for rent and eviction under Section 15 (2) of the Provisional Small Cause Courts Act, 1887 as applicable to the State of U.P. up to the valuation of Rs.

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1 lac, irrespective of the date of their institution, would lie before the Small Causes Court presided over by Civil Judge (Senior Division) and District Judge/Additional District Judge would not have any jurisdiction to decide them except those having a valuation of over Rs. 1 lac.

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The District Judge in the order impugned has observed at one place that the decree sought to be executed is dated 04.04.2016 i.e. after the notification dated 07.12.2015 and therefore, the learned counsel for the petitioner says that this observation will go against his client.

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This Court, therefore, thinks it proper to clarify in view of the law settled by the Supreme Court in RSD Finance Co. Private Limited Vs. Shree Vallabh Glass Works Ltd., AIR 1993 SC 2094 that an objection to the jurisdiction of court under Section 21 should be taken at the first instance and in all cases where issues are settled then at or before such settlement and only when there has been consequent failure of justice an interference can be made on the point of jurisdiction.

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In the judgment by the Supreme Court in RSD Finance Co. Private Limited (supra) objection regarding the court not having jurisdiction to render the judgment sought to be executed was taken at the time when execution proceedings were initiated. Similar was the case in M/s. Pankaj Hotel (supra). The Supreme Court has held and this Court had followed the law so settled that on the basis of Section 21 CPC and Section 11 of the Suit Valuation Act, 1887, a distinction has to be made between the jurisdiction with regard to the subject matter of the suit and that of territorial or pecuniary jurisdiction. Whereas, in the case falling within the former category, the judgment would be a nullity, in the latter it would not be. So far as the pecuniary jurisdiction and territorial jurisdiction are concerned, Section 21 CPC and Section 11 of the Suit Valuation Act, have laid down the procedure for raising objection in this respect at the earliest opportunity to contest.

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Prior to insertion of Section 21(2) CPC w.e.f. 01.02.1977, a Bench of Four Hon'ble Judges of Supreme Court in Kiran Singh and others Vs. Chaman Pawan and others, 1954 SC 340, had observed that Section

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11 of Suit Valuation Act and Section 21 read with Section 99 CPC gives no protection to the decrees passed on merits, when the court which passed them lacks jurisdiction as a result of overvaluation or undervaluation.

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However, in the same judgment of the Supreme Court there is an observation that objection to the jurisdiction of a court based on overvaluation or undervaluation shall not be entertained by Appellate Court except in the manner and to the extent mentioned in the statute. No objection to the jurisdiction based on overvaluation or undervaluation can be raised otherwise than in accordance with it. In reference to Sections 21 and 29 of CPC the Supreme Court had observed that when a case had been tried by a court on merits and judgement rendered, it would not be liable to be reversed purely on technical grounds unless it has resulted in failure of justice and the policy of legislature has been to treat the objection to the jurisdiction, territorial and pecuniary, as technical and not open to consideration by Appellate Court. Therefore, the decree and judgment of the District Court cannot be treated to be a nullity if the order has been passed on merits and objection has not been taken at the first instance.

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Even otherwise, it is settled law that the courts of higher jurisdiction have the capacity to decide the cases of lower valuation. There is no inherent lack of jurisdiction which may make such a decree passed by such a court void in law.

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In view of the law settled by the Supreme Court regarding the territorial and pecuniary jurisdiction as aforesaid, the observation made in the order impugned that on the date of decision of the suit i.e. on 04.04.2016, the suit having a valuation of Rs.53,522/was cognizable by a Judge, Small Causes Court and not by an Additional District Judge/Fast Track Court, Court Room No. 52, Kanpur Nagar may not be treated to be of any consequence.

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This Court however does not find any other legal infirmity in the order of transfer dated 26.04.2018 to show interference in the matter under its supervisory jurisdiction. The case shall be treated as transferred to the court of Judge, Small Causes for the purpose of

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execution.

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This petition is disposed of with the aforesaid observations.

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Order Date :- 17.5.2018 LBY

Vinay Juneja v. Kailash Khullar and Another

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Vinay Juneja v. Kailash Khullar and Another

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