Disposed

Tirunagari Santhalakshmi v. Arun Kumar Jain

Andhra Pradesh HC22 Dec 2024AS/388/2024

Case brief

AI extract

What is this about?

Appeal against a mortgage preliminary decree was challenged on maintainability. Holding that the forum of appeal is determined by the value of the subject-matter of the suit, not the value computed for the appeal under the Court Fees Act, the High Court upheld the Registry objection and held the appeal not maintainable.

What did the court decide?

Registry directed to return original documents, grounds of appeal and court fee paid to the appellant's counsel; miscellaneous applications closed.

Tirunagari Santhalakshmi Vs Arun Kumar Jain — Property and Title | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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MONDAY, THE TWENTY THIRD DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE NINALA JAYASURYA AND

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THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM

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APPEAL SUIT No.388 of 2024

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Appeal filed under Section 96 of C.P.C R/w Order 41^Rule 1 of C.P.C, against the Decree and Judgment, dated 13.04.2022 in^{O.S.No.142of2019} on the file of the Principal Senior Civil Judge, Kakinada, East Godavari District.

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Between:

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Tirunagari Santhalakshmi, W/o. Tirunagari Srinivasa Rao, Aged 54 years, R/o. D.No.29-6-34/B, Koyyavari Veedhi, Santha Cheruvu, Kakinada Urban.

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...APPELLANT/DEFENDANT

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AND

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Arun Kumar Jain, S/o. Mangilal, Aged 49 years, R/o.^{D.No.34-1-11/1} Temple Street, Kakinada-1

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...RESPONDENT/PLAINTIFF

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lA NO: 2 OF 2024

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Petition under Section 151 CPC praying that in the^{circumstances} stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings pursuant to the Decree and Judgment dated 13.04.2022 in OS No. 142 of 2019 on the file of Principal Senior Civil Judge, Kakinada, East Godavari District.

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Counsel for the Appellant : SRI G RAMA GOPAL

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Counsel for the Respondent : SRI M RADHAKRISHNA ALONG^WITHSRI M SRI ATCHYUT

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The Court made the following JUDGMENT :

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APHC010318172011

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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[3495]

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(Special Original Jurisdiction)

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MONDAY, THE TWENTY THIRD DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE NINALA JAYASURYA

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THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM APPEAL SUIT NO: 388 OF 2024

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Between:

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Tirunagari Santhalakshmi

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...APPELLANT/DEFENDANT

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AND

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Arun Kumar Jain ...RESPONDENT/PLIANTIFF

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Counsel for the Appellant: Mr.G.Rama Gopal

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Counsel for the Respondent: Mr. M. Radhakrishna learned^counsel along with Mr. M. Sri Atchyut

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The Court made the following: JUDGMENT:

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Aggrieved by the Judgment and Decree dated 13.04.2022 in O.S.No.142 of 2019 on the file of the Court of the Principal Senior Civil Judge, Kakinada, the present Appeal has been preferred.

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The respondent-plaintiff filed the said suit for recovery^of suit amount of Rs.32,00,000/- together with subsequent interest^attherate of 25.8% per annum from the date of suit till the date^{ofrealizationby}

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creating a mortgage second charge over the plaint schedule property and to pass a mortgage preliminary decree, directing the defendant to discharge the amount within the time frame etc. The appellantdefendant contested the matter by filing a written statement. After considering the matter, the learned Principal Senior Civil Judge, Kakinada, passed a preliminary decree for a sum of Rs.50,53,727/- with subsequent interest at the rate of 6% per annum from the date of decree till the date of realization on the principal amount of Rs. 14,00,000/-. The present appeal is valued at Rs.52,42,484/- in the Memorandum of Appeal and a Court Fee of Rs.56,426/was paid thereon.

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After service of notice the respondent-plaintiff entered appearance through his counsel. Be that as it may. 4) When the matter is taken up for consideration, Mr. M. Radha Krishna, learned arguing counsel on behalf of the learned counsel for the respondent, raised a preliminary objection with regard to the maintainability of the Appeal before this Court. In view of the same, with the consent of the counsel on both sides, the issue of maintainability of Appeal is being adjudicated.

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Mr. G. Rama Gopal, learned counsel for the appellant made submissions, inter alia, to the effect that the value of the appeal, which

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on the date of filing includes the interest awarded by the Trial Court, as Rs.50,00,000/- and therefore, the Appeal is of the Appeal is more than preferred before this court. According to him, it is the vaiue of the appeal, which determines the pecuniary jurisdiction. Referring to Section 17 of the A.P. Civil Courts Act. 1972 (for^{short“theAct”),he} said Section deals with appeals, the value of the contends that as the into consideration for presenting before the Appeal has to be taken Appellate Court, Learned counsel also made submissions with reference to the decision of a Larger Bench of the^{erstwhileHighCourt} of Andhra Pradesh in Vallabhaneni Lakshmana Swamy and another V Vallum Basavaiah and Others^.

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On the other hand, Mr. M. Radha Krishna, learned counsel made 6) 17 of the Act, as also Section 49 submissions with reference to Section Valuation Act, 1956 (for short “the Act, of A.P. Court Fee and Suits he contends that the appeal 1956”). Relying on various decisions challenge lies to the District Court. It is his against the order under the date of filing of the suit what is the pecuniary submission that on and appeal has to be filed accordingly before jurisdiction has to be seen He submits that for the purpose of determining the the appellate forum filing the appeal, the value as mentioned in pecuniary jurisdiction, for

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' 2004 (5) ALD 807 (LB)

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the suit has to be taken, but not the value of the appeal as sought to be contended.

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The contentions advanced by the learned counsel are^examined with reference to the relevant statutory provisions^and the decisions

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referred to hereinafter. Section 17 of the Act reads as follows:

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“17. Appeals from the decrees and Orders of courts in the districts - (1) An appeal shall, when it is allowed by law, lie - from any decree or order in a civil suit or proceeding (i) of the District Court, to the High Court; (ii) of the court of Senior Civil Judge,(a) to the District Court, when the amount or value of the subject-matter of the suit or proceeding is not more^than rupees fifty lakhs; (b) to the High Court, in other cases ; and

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(iii) of the Court of Junior Civil Judge, to the District^Court. (2) The District Judge may, subject to the orders of the High Court, transfer for disposal any appeal from the decree or order of a Court of Junior Civil Judge preferred in^theDistrict Court, to any Court of Senior Civil Judge within the^district. (3) Where a Court of Senior Civil Judge is established in any district at a place remote from the seat of the District Court, the High Court, may, with the previous sanction of the Government, direct that an appeal from the decree or^orderof any Court of Junior Civil Judge within the local limits^ofthe jurisdiction of such ‘[Court of Senior Civil Judge] shall be preferred in the said Court of Senior Civil Judge; Provided that the District Judge may, from time to time, transfer to his own Court, any appeal so preferred, and dispose it of himself.”

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On a close reading of the statutory provision referred^toabove, it is clear that the emphasis is much on the “Amount or^valueofthe subject matter of the suit” and for the purpose of^{determiningthe} forum to which an appeal lies, “the amount or value of the subject matter of the suit” has to be taken into consideration.

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At this juncture, it may be appropriate to refer Section^49ofthe A.P. Court Fees and Suits Valuation Act, 1956, which^{dealswiththefee} payable in appeal and the same is extracted hereunder:

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“49. Appeals - The fee payable in an appeal shall be^thesame as the fee that would be payable in the Court of first^instanceon the subject-matter of the appeal: Provided that, in levying fee on a memorandum of appeal against a final decree by a person whose appeal against^the preliminary decree passed by the Court of first instance^orby the Court of appeal is pending, credit shall be given^forthefee paid by such person in the appeal against the preliminary decree.

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Explanation (1) - Where the appeal is against the refusal^ofa relief or against the grant of the relief, the fee^payableinthe appeal shall be the same as the fee that would be payable^on the relief in the Court of the first instance. Explanation (2) - Costs shall not be deemed to form^partofthe subject - matter of the appeal except where such costs^form themselves the subject-matter of the appeal or relief^isclaimed as regards costs on grounds additional to, or independent^of,the relief claimed regarding the main subject-matter in^thesuit. Explanation (3) - In claims which include the award^ofinterest subsequent to the institution of the suit, the interest^accrued during the pendency of the suit till the date of decree^shallbe

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<br>

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deemed to be part of the subject-matter of the appeal except where such interest is relinquished.

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Explanation (4) - Where the relief prayed for in the appeal is different from the relief prayed for or refused in^{theCourtoffirst} instance, the fee payable in the appeal shall be the^feethat would be payable in the Court of first instance on the relief prayed for in the appeal. Explanation (5) - Where the market value of the subject-matter of the appeal has to be ascertained for the purpose of computing or determining the fee payable, such market^value shall be ascertained as on the date of presentation of the plaint.”

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Interpreting the above statutory provisions, a learned Judge of erstwhile High Court of Andhra Pradesh in G. Venkata Appa Rao v P. Sivaramakrishna Prasad^ was not inclined to accept^{thecontention} that the interest pendente lite is also the subject^{matterofthesuitand} consequently the appeal lies to the High Court. In^{thesaidcasethe} Registry raised an objection with regard to the maintainability of appeal before the High Court. Learned Judge at para 5, inter alia, held as

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follows:

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“5. It is true that while filing an appeal, the court^feehastobe calculated even on the interest that had accrued during^the pendency of the suit till the date of the decree by^virtue of Section 49 of the A.P. Court Fees and Suits Valuation Act, 1956. In fact, that is deemed to be part of the subject matter^ofthe appeal. But, while deciding the question as to what^istheforum for preferring the appeal, we should go by the provisions^ofthe A.P. Civil Courts Act 1972. Section 17(1) says that an appeal

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^ 1979 ALT 334

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lies to the District Court when the amount or value of the subject matter of the suit or proceeding is not more than rupees^fifteen thousand. Therefore, for the purpose of determining^theforum to which an appeal lies, we should go by the amount^orvalueof the subject matter of the suit, but not by the subject^matterof the appeal."

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Similar issue about the maintainability of appeals^was raised before a Division Bench of the erstwhile High Court^{ofAndhraPradesh} in A.S.No.910 and 908 of 2017. Before the Division Bench, the contention like in the present case was advanced, that^itis the value of the suit, which is required to be taken into consideration in determining the appellate forum and not the value of the appeal. The Hon’ble Division Bench after referring to the decision of a Full Bench in Motichand Jain v Jaikumar M^, wherein it was held that while the right of the appeal is a substantive right, the right regarding^{theforumbefore} which an appeal should be filed, was within the realm of adjectival law being the procedural in nature, and therefore not a vested right and the subsequent Larger Bench judgment in Vallabhaneni Lakshmana Swamy case (1 supra), upheld the objection to the maintainability of the Appeals.

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In N. Mehar Baba v T. Satyanarayana*, initially the Registry raised an objection about the valuation. The said objection was

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^ 2004 (1) ALT 250 (FB) '' AS 1406 of 2018

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overruled, however, in view of the decision of the Division Bench in Bank of India, Visakhapatnam v M/s. Begi Venkateswara Rao and others^, the learned Judge felt it appropriate to reopen the matter and hear the case. The appellant in the said appeal suffered a decree for a sum of Rs.7,95,666/and calculated the interest thereon, which amounted to Rs.6,85,833.33 ps., and valued the appeal at Rs.14,81,499.33 ps. A contention was advanced that as the value of the appeal, which is calculated in terms of Section 49 (3) of the Act is above Rs. 10,00,000/-, an appeal is maintainable in the High Court. The learned Judge after referring to the decisions in Vallabhaneni Lakshmana Swamy (1 supra), M.Mohan Reddy v. D. Rajamallu^, also a Full Bench decision of the Madras High Court reported in Putta Kannayya v Venkata Narasayya^ and a decision of three Judges Bench reported in Kalla Yadagiri v Kotha Bal Redd/^{wasinclinedto} recall the earlier order and upheld the office objection. The relevant portions of the earlier decisions which were extracted in Mehar Baba case (4 supra) is a complete answer to the contentions raised on behalf of the appellant.

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^ AS No.910 a 908 of 2017

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® 2015(1) ALD 447

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^AIR 1918 Madras 998

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“ 1999 (1) ALD 222

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In a subsequent case in K. Rama Naidu and Others v E. Durvasula Naidu and others^ the issue of maintainability of the appeals with an objection that once the original valuation of Rs.22,625/, as shown in the plaint is taken into account, the appeals would not be maintainable before the High Court, in as much as, the pecuniary jurisdiction for the appeals as stipulated under Section 17 of the Act, would require the appeals to be filed before the appropriate District Court was raised. After referring to the relevant statutory provisions viz.. Sections 49 and 51 of the Act, 1956 and Section 17 of the Act (as amended from time to time), as also the various legal precedents, the Division Bench held that the appeals are not maintainable^beforethe High Court and have to be filed before the appropriate^{DistrictCourt.} The special leave petitions filed against the decision of the Division Bench were dismissed by the Hon’ble Supreme Court of India by an order dated 02.03.2021 in Special Leave to Appeal (C)^Nos.3388- 3390 of 2021.

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The above stated legal position makes it clear^that it is the value of the suit, which is the decisive factor and governs the forum of appeal. Therefore, the contention that it is the value of the Appeal, which has to be taken into consideration for determining the pecuniary jurisdiction, in the light of the decisions referred to above, on which reliance is placed

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® 2021 (2) ALD 370 (AP) DB

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by the learned counsel for the respondent, merits no acceptance and is accordingly rejected.

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In the aforesaid view of the matter, the appeal as presented before this Court is not maintainable and the objections with regard to the maintainability of the appeal are upheld. The Registry^isdirectedto return the original documents along with the grounds of appeal and the Court Fee paid to the learned counsel for the appellant, as per the procedure.

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