# Tara Prasad Sonkar & Anr. Revisionists v. Smt. Binod Devi & Ors

- **Citation:** (2022) 5 ILRA 1422
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-07
- **Case number:** S.C.C. Revision No. 42 of 2022
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tara-prasad-sonkar-anr-revisionists-v-smt-binod-devi-ors-48520
- **Pages:** 12

## Headnote

Civil Law - Code of Civil Procedure,1908 -
Section 21- Suit for eviction and recovery of
rent filed-suit was filed claiming rent to be Rs.
5000/- per month-Revisionist disputed the rentissue was decided in revisionist's (tenant)
favour-no objection was ever raised even while
filing
the
Written
submission-as
to
the
jurisdiction of Court-only St.d in the W.S. that
excess rent was shown to bring the case in
appellate jurisdiction-No objection with regard
to competence of court as to pecuniary
jurisdiction be allowed by any Appellate or
Revisional
court-jurisdiction
cannot
be
challenged without taking objection in the
Written submission at the first instance.

Revision dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,982 of 41,547. This is a partial read: ask again with offset=39982 for what follows._

1422 INDIAN LAW REPORTS ALLAHABAD SERIES

(देखें : र्ुरुचिि दास चड्ढा प्रलत
िािस्थाि िाज्य ए आई आि : (1966) एस सी
1418, अमरिन्दि लसोंह प्रलत प्रकाश लसोंह बादि :
(2009) 6 एस सी सी 260, िािू प्रसाद यादव
प्रलत झाििण्ड िाज्य : (2013) 8 एस सी सी
593, िाहि लसोंह यादव प्रलत भाित सोंघ (2011)
1 एस सी सी 307 व उसमाि र्िी आदम भाई
व हिा प्रलत र्ुििात िाज्य व एक अन्य : (2016)
3 एस सी सी 370, िािकुमाि साबू प्रलत मे. साबू
िरेड प्राइवेि लिलमिेड : 2021 एस सी सी
ऑििाइि एस सी 378)

लवश्लेिण व लिष्किग

13. आवेदक की भनष्पक्ष व स्वतूंत्र न्याय न
भमलने की आर्ूंका का आधार भवचारण न्यायालय में
कायशरत एक कमशचारी है, जो कभथत रुप से पीभडता
के अभधवक्ता का भमत्र है और अपने पद का अनुभचत
उपयोग कर न्याभयक प्रभक्रया में पीभडता के अनुक ल
व आवेदक के प्रभतक ल आदेर् न्यायालय से पाररत
करवाने में सहायता करता है तथा इसी प्रिाव के
कारण न्यायालय ने अभियोजन साक्ष्य की प्रभतपररक्षा
का अवसर समाप् कर भदया था। परन्तु यह
आकाूंक्षा पत्रावली पर न्यायालय की आदेर् के
पररर्ीलन से भनराधार प्रतीत होती है, क्योूं भक
आवेदक को प्रभतपरीक्षा का आवेदन अपर न्यायालय
द्वारा 10.2.2021को स्वीकार भकया जा चुका है
तथा अभियोजन साक्ष्य सूंख्या 2 (वन्दना) को तलब
िी भकया जा चुका है। परन्तु आवेदक के हाभजर न
होने के कारण उसके भवरुद्ध गैर जमानतीय वारन्ट
भदनाूंक 05.03.2021 व 10.3.2021 को जारी
भकये गये जो प्राथशनापत्र के आधार पर आदेर् भदनाूंक
02.04.2021 द्वारा भनरस्त कर भदये गये। यहााँ यह
उल्लेख करना आवश्यक है भक उपरोक्त आदेर्
भवभधनुसार व उभचत प्रभक्रया के अूंतगशत भकये है।
भजनका भनदान िी प्रभक्रया के अूंतगशत भकया गया है।
इसी दौरान भर्कायतकताश ने एक प्राथशना पत्र धारा
319 िा.द.सूं., के अन्तगशत दान्धखल कर भदया तथा
पत्रावली वतशमान में उक्त प्राथशना पत्र के भनस्तारण के
स्तर पर है। अतः आवेदक का स्थान्तरण का आधार
यथोभचत आकाूंक्षा पर आधाररत नहीूं है। उपरोक्त
वभणशत आदेर् के कारण यह यथोभचत आकाूंक्षा नहीूं
हो जाती है भक आवेदक को भनष्पक्ष व उभचत न्याय
नहीूं प्राप् होगा और यह िी नहीूं प्रतीत होता है भक
आवेदक के प्रभतक ल पाररत आदेर् भकसी प वाशग्रह
या दबाव या अनुभचत प्रिाव के अूंतगशत पाररत भकये
गये हैं। अतः आवेदक इस न्यायालय के समक्ष, ऐसा
कोई यथोभचत कारण या ऐसी पररन्धस्थभतयाूं भजनके
कारण यथोभचत आकाूंक्षा हो भक भनष्पक्ष न्याय नहीूं
भमल पायेगा, प्रस्तुत करने में असमथश रखा है और न
ही कोई ऐसा कारण उपन्धस्थत है भक वतशमान प्रकरण
में स्थान्तरण की प्राथशना स्वीकार करना, न्याय के
उद्देश्य के भलये समीचीन होगा।

14. उपरोक्त भवभधक व तथ्यात्मक भवश्लेषण
का एक ही भनष्कषश है भक वतशमान प्रकरण में
आवेदक, स्थान्तरण के भलये उभचत या भनष्पक्ष न्याय
न भमलने का कोई यथोभचत या वास्तभवक आकाूंक्षा
स्थाभपत करने में असमथश रहा है। अतः वतशमान
आवेदन में की गई स्थान्तरण की प्राथशना बलहीन होने
के कारण अस्वीकार की जाती है तथा वतशमान
प्राथशना पत्र इस आदेर् के साथ अूंभतम रुप से
भनस्ताररत की जाती है भक सत्र न्यायालय प्रकरण की
सुनवाई र्ीघ्रता व भनयमनुसार करेगा तथा इस सूंदिश
में इस न्यायालय द्वारा पाररत आदेश लदिाोंक
07.06.2021, िलवन्द्र प्रताप शाही उर्ग पप्पू
शाही बिाम उत्ति प्रदेश िाज्य (आपिालधक
प्रकीणग
िमाित
प्राथगिा
पत्र
सोंख्या-
20591/2021) के मामले में 'त्वररत न्याय' के
भवश्लेषण को ध्यान में रखेगा।
----------

(2022)05ILR A1422
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 42 of 2022

Tara Prasad Sonkar & Anr. ...Revisionists
Versus
Smt. Binod Devi & Ors. ...Opposite Parties

Counsel for the Revisionists:
Sri Devid Kumar Singh, Sri Neeraj Rai, Sri
Prateek Rai, Sri Chandan Sharma
5 All. Tara Prasad Sonkar & Anr. Vs. Smt. Binod Devi & Ors.
1423
Counsel for the Opposite Parties:
Sri Brijesh Chandra Naik

Civil Law - Code of Civil Procedure,1908 -
Section 21- Suit for eviction and recovery of
rent filed-suit was filed claiming rent to be Rs.
5000/- per month-Revisionist disputed the rentissue was decided in revisionist's (tenant)
favour-no objection was ever raised even while
filing
the
Written
submission-as
to
the
jurisdiction of Court-only St.d in the W.S. that
excess rent was shown to bring the case in
appellate jurisdiction-No objection with regard
to competence of court as to pecuniary
jurisdiction be allowed by any Appellate or
Revisional
court-jurisdiction
cannot
be
challenged without taking objection in the
Written submission at the first instance.

Revision dismissed. (E-9)

List of Cases cited:

1. Jagmittar Sain Bhagat Vs Dir. Health Services,
Har. & ors.; (2013) 2 SCC (LS) 841

2. Om Prakash Agarwal Since deceased thr.
L.Rs. & ors. . Vs Vishan Dayal Rajpoot & ors. ;
2018 (191) AIC9

3. Prabha Rani Agrawal Vs Income Tax Officer &
ors. ; (2013) 259 CTR (All) 118

4. Om Prakash Agarwal Since deceased thr.
L.Rs. & ors. . Vs Vishan Dayal Rajpoot & ors. ;
2018 (191) AIC9

5. Rajendra Kumar @ Vinay Kumar Vs Pankaj
Kumar Agarwal; 2019 (3) ARC 621
(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Chandan Sharma,
advocate holding brief of Sri Neeraj Rai,
learned counsel for the revisionists and Sri
Brijesh Chandra Naik, learned counsel for
opposite parties.

2. Present revision has been filed for
setting aside the judgement and order dated
17.02.2022 passed by learned Additional
District Judge, Court No. 10, Varanasi in
Small Causes Case No. 04 of 2019 (Smt.
Bindo Devi and others Vs. Tara Prasad
Sonkar and others).

3. Apart from many other grounds
taken in revision, learned counsel for the
revisionists has pressed the ground of
jurisdiction of the Court only before this
Court.

4. Learned counsel for the revisionists
submitted that opposite parties instituted
Small Causes Case No. 04 of 2019 (Smt.
Bindo Devi and others Vs. Tara Prasad
Sonkar and others) seeking eviction of
revisionists- defendants from disputed
property and for recovery of rent arrears
also. While filing the suit, opposite parties
contended that shop in question was rented
at the rate of Rs. 5,000/- per month
calculating the valuation of suit Rs.
2,40,000/-.
Revisionists-
defendants
disputed the rent and submitted that shop in
question was rented at the rate of Rs. 500/-
per month and accordingly, issue No. 2 was
framed with regard to actual determination
of rent as to whether it was Rs. 5,000/- or
Rs. 500/- per month. He next submitted that
this issue was decided in favour of
revisionists-defendants accepting the rent at
the rate of Rs. 500/- per month. He further
submitted that once the rent was fixed at
the rate of Rs. 500/- per moth by deciding
issue No. 2, valuation of suit has been
decreed to less than one lac and Court of
District Judge would have no jurisdiction to
try the case in light of Section 15 of Code
of Civil Procedure, 1908 (hereinafter
referred to as "CPC, 1908"). Section 15 of
CPC mandate that every suit shall be
instituted in the Court of lowest grade
competent to try and in the present case, it
has to be decided by concerned Small
1424 INDIAN LAW REPORTS ALLAHABAD SERIES
Causes Court. He next submitted that once
the Court has no jurisdiction, order passed
by the Court is nullity in the eye of law. In
support of his contention, he placed
reliance upon the judgements of Apex
Court in the case of Jagmittar Sain Bhagat
Vs. Dir. Health Services, Haryana and
others; (2013) 2 SCC (LS) 841 (paragraph
7) and Om Prakash Agarwal Since
deceased thr. L.Rs. and Ors. Vs. Vishan
Dayal Rajpoot and Ors; 2018 (191) AIC9 (
paragraph 20, 21, 34, 47) as well as of this
Court in the matter of Prabha Rani
Agrawal Vs. Income Tax Officer and Ors;
(2013) 259 CTR (All) 118.

5. Learned counsel for opposite
parties opposed the submissions raised by
learned counsel for the revisionists and
submitted that there are two situations;
first, Court is having inherent lack of
jurisdiction, second, after filing written
statement or any subsequent development,
Court may not have the jurisdiction to
decide the case. He next submitted that in
present case, it is necessarily required on
the part of revisionists-defendants to raise
objection with regard to jurisdiction in
written submission to enable the Court to
frame issue and decide the same. In the
present case, suit was filed alongwith
valuation of Rs. 2,40,000/- and the Court is
having pecuniary jurisdiction to hear the
same on the date of filing, therefore, it is
not the case of lack of inherent jurisdiction.
Further, while filing written statement,
revisionists-defendants has never raised
objection about the jurisdiction of the Court
and only it was stated in written statement
that suit has been filed by showing excess
rent to bring the case in appellate
jurisdiction of Small Causes Court for early
disposal of the matter. It is also stated in
written statement that just to deprive one
step of appellate court at District Judgeship,
excess rent has been shown. He reiterated
that at no point of time, revisionistsdefendants
has
raised
objection
of
jurisdiction, therefore, Court is having full
jurisdiction to decide the case. In support of
his contention, he placed reliance upon the
judgement of Apex Court in the matter of
Om Prakash Agarwal Since deceased thr.
L.Rs. and Ors. Vs. Vishan Dayal Rajpoot
and Ors; 2018 (191) AIC9 ( paragraph 49,
56, 57) as well as of this Court in the matter
of Rajendra Kumar @ Vinay Kumar Vs.
Pankaj Kumar Agarwal; 2019 (3) ARC
621.

6. I have considered the rival
submissions raised by learned counsel for
the parties as well as perused the
judgements relied upon Facts of the case
are undisputed.

7. After going through the pleadings,
the only question before this Court is to
decide as to whether without raising the
issue of jurisdiction in written submission,
Court is bound to first decide its
jurisdiction based on pecuniary limits i.e.
valuation of case and then proceed to
decide the case on merits or not.

8. Learned counsel for the revisionists
has only submitted that he has raised
objection with regard to amount of rent and
once the objection is accepted, it is required
on the part of Court to first consider its own
jurisdiction to decide the case, but he could
not dispute this fact that in written
statement, no objection has been raised
about the jurisdiction of the Court. Case
was filed showing the rent at the rate of Rs.
5000/-, therefore, Court is having full
jurisdiction to decide the same. After filing
written statement showing the rent at the
rate of Rs. 5,00/-, Issue No. 2 was framed
with regard to determination of rent and
5 All. Tara Prasad Sonkar & Anr. Vs. Smt. Binod Devi & Ors.
1425
that was ultimately decided in favour of
revisionists-defendants accepting the rent at
the rate of Rs. 500/- per month. Thereafter,
proceeded to decide the case on merits.

9. Learned counsel for the revisionists
has relied upon paragraph 7 of judgement
of Apex Court in the matter of Jagmittar
Sain Bhagat (supra), which is quoted
below;

" 7. Indisputably, it is a settled
legal
proposition
that
conferment
of
jurisdiction is a legislative function and it
can neither be conferred with the consent of
the parties nor by a superior Court, and if
the Court passes a decree having no
jurisdiction over the matter, it would
amount to nullity as the matter goes to the
roots of the cause. Such an issue can be
raised at any stage of the proceedings. The
finding of a Court or Tribunal becomes
irrelevant and unenforceable/ inexecutable
once the forum is found to have no
jurisdiction. Similarly, if a Court/Tribunal
inherently lacks jurisdiction, acquiescence
of party equally should not be permitted to
perpetuate and perpetrate, defeating the
legislative animation. The Court cannot
derive jurisdiction apart from the Statute.
In such eventuality the doctrine of waiver
also
does
not
apply.
(Vide:
United
Commercial Bank Ltd. v. Their Workmen,
MANU/SC/0067/1951: AIR 1951 SC 230.
Smt. Nai Bahu v. Lal Ramnarayan & Ors.
MANU/0367/1977: AIR 1978 SC 22;
Natraj Studios (P) Ltd. v. Navrang Studios
& Anr., MANU/SC/0477/1981: AIR 1981
SC 537' and Kondiba Dagadu Kadam v.
Savitribai
Sopan
Gujar
&
Ors.,
MANU/SC/0278/1999: AIR SC 2213)."

10.

Learned
counsel
for
the
revisionists has relied upon paragraphs 20,
21, 34 & 47 of judgement of Apex Court in
the matter of Om Prakash Agarwal Since
deceased thr. L.Rs. and Ors. (supra),
which are quoted below;

"20. By the above amendment in
the Provincial Small Cause Courts Act,
1887 the limit of pecuniary jurisdiction of
small causes court was increased from
Rs.25,000/-to Rs.1 Lakh. The Judge, Small
Causes Court in the State of U.P. is seniormost Civil Judge, working in the district.
Although the Court of Small Causes was
empowered to take cognizance of a suit
upto the valuation of Rs.1 lakh w.e.f.
07.12.2015, the suit in question namely
Small Causes Suit No.1 of 2010 which was
pending in the Court of Additional District
Judge, Firozabad continued to proceed in
the court of Additional District Judge.
None of the parties raised any objection
with regard to hearing of suit by Additional
District Judge, consequently, the Additional
District Judge heard the parties and by
judgment dated 22.10.2016 decreed the suit
for eviction and due rent & compensation.
The tenant aggrieved by the judgment of
Additional District Judge filed a revision
under Section 25 of Provincial Small Cause
Courts Act, 1887, before the High Court.

21. One of the grounds taken
before the High Court was that in view of
the U.P. Civil Laws (Amendment) Act,
2015, the Court of Additional District
Judge ceased to have jurisdiction to try suit
between lessor and lessee of value upto
Rs.1 Lac w.e.f. 07.12.2015, assumption of
jurisdiction subsequent thereto, is without
jurisdiction.

34.
Whether
the
Additional
District Judge, in the facts of the present
case, had jurisdiction to take cognizance of
small causes suits having valuation upto
Rs. 1 lakh and could still have proceeded to
decide the suit, whose valuation was less
than Rs. 1 lakh? We may also notice
1426 INDIAN LAW REPORTS ALLAHABAD SERIES
provision of Section 15 of the Code of Civil
Procedure, which provides that suits shall
be instituted in the Court of the lowest
grade competent to try it. Section 15 of the
Code of Civil Procedure is as follows:-
"Every suit shall be instituted in the Court
of the lowest grade competent to try it."

47. As noted above, the proviso to
subsection (2) provides that figure Rs.5,000/-
shall be construed to Rs.25,000/-. By U.P.
Civil Laws (Amendment) Act, 2015, the figure
of Rs.25,000/- stood substituted by Rs.1 lac.
Reading sub-section(2) read with proviso and
U.P. Civil Laws (Amendment Act), 2015
clearly means that Small Cause suits with
aluation not exceeding Rs.1 lac shall be
cognizable by Court of Small Causes. When a
Small Cause suit not exceeding value of Rs.1
lac is cognizable by Court of Small Causes,
obviously,
no
other
court
can
take
cognizance. Additional District Judge to
whom small causes suit in question was
transferred since its valuation was more than
of Rs.25,000/- was not competent to take
cognizance of the suit after U.P. Civil Laws
(Amendment Act), 2015 w.e.f.07.12.2015,
when the suit in question became cognizable
by Small Causes Court i.e. Court of Civil
Judge, Senior Division. To the above extent,
the judgment of learned Single Judge in
Shobhit Nigam's Case has to be approved
and judgment of Single Judge in Pankaj
Hotels (Supra) laying down that even after
07.12.2015, the Additional District Judge had
jurisdiction to decide the suit in question
cannot be approved."

11.

Learned
counsel
for
the
revisionists has also relied upon paragraph
25 of judgement of this Court in the matter
of Prabha Rani Agrawal (supra), which is
quoted below;

"25.
From
the
aforesaid
decisions, it follows that (i) a question
relating to jurisdiction which goes to the
root of the matter can always be raised at
any stage, be in appeal or revision, (ii)
initiation of proceedings under section 147
of the Act and/or service of notice are all
questions
relating
to
assumption
of
jurisdiction to assess escaped income, (iii)
if an issue has not been decided in appeal
and the matter has simply been remanded,
the
same
can
be
raised
again
notwithstanding with the fact that no
further appeal has been preferred, (iv) in
the reassessment proceedings, relief in
respect of item which was not originally
claimed cannot be claimed again as the
reassessment proceedings are for the
benefit of the Revenue, and (v) relief can
only be claimed in respect of the escaped
income. Applying the principles laid down
in the aforesaid cases to the facts of the
present case, we find that in the first round
of proceedings before the Commissioner of
Income-tax (Appeals), the appellant had
specifically questioned the validity of the
proceedings initiated under section 148. of
the Act. That issue was not decided by the
Commissioner
(Appeals)
who
had
remanded the matter for fresh assessment
after providing opportunity of hearing. The
question
relating
to
the
jurisdiction
assumed under section 147/148 of the Act
goes to the very root of the matter and it
can be raised in appeal for the first time.
The appellant had raised this question
again in appeal and, therefore, it was
incumbent upon the ''Commissioner of
Income-tax (Appeals) to adjudicate upon
the grounds' taken before him., In fact, he
had casually observed that the proceedings
under section 148 of the Act had been
validly initiated but, wrongly applied the
principles laid down by the apex court in
the case of Sun Engineering Works P., Ltd.,
MANU/SC/0707/1992: [1992] 198 ITR 297
(SC)."
5 All. Tara Prasad Sonkar & Anr. Vs. Smt. Binod Devi & Ors.
1427

12. Learned counsel for the opposite
parties has also relied upon the judgement
of Apex Court in the matter of Om Prakash
Agarwal Since deceased thr. L.Rs. and
Ors. (supra). In that case when issue of
jurisdiction came before the Apex Court for
adjudication, Apex Court framed three
issues and issue No. 3 covers the
controversy involved in this matter. Issue
No. 3 and findings of Apex Court are
quoted herein below;

"5. From the above submissions
of learned counsel for the parties and the
pleadings on record, following are the
issues, which arise for consideration in this
appeal:

(i)
......................................................................
....................................

(ii)
......................................................................
....................................

(iii)
Whether
respondents
(tenants) having not raised any objection
regarding jurisdiction of the Court of
Additional District Judge where the suit
was pending after amendments made by
Uttar Pradesh Civil Laws (Amendment)
Act, 2015, the respondent (tenant) is
precluded to question the competence of the
Court of Additional District Judge to
decide the suit vide his judgment dated
22.10.2016 in view of Section 21 of Code of
Civil Procedure, 1908 in revision filed
under Section 25 of the Provincial Small
Causes Court Act?

ISSUE NO. 3.

"It is the submission of learned
counsel for the appellant that even if the
Additional
District
Judge
was
not
competent to decide the small causes suit
on 22.10.2016, the judgment of the
Additional District Judge was not liable to
be interfered with by the revisional court in
view of Section 21 of the Code of Civil
Procedure. Section 21 of the Code of Civil
Procedure
relates
to
objection
to
jurisdiction. Section 21 of the Code of Civil
Procedure is as follows:- "21. Objections to
jurisdiction.--[(1)] 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 a consequent failure of justice.

[(2) No objection as to the
competence of a Court with reference to the
pecuniary limits of its jurisdiction 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 a
consequent failure of justice.

(3) No objection as to the
competence of the executing Court with
reference to the local limits of its
jurisdiction shall be allowed by any
Appellate or Revisional Court unless such
objection was taken in the executing Court
at the earliest possible opportunity, and
unless there has been a consequent failure
of justice.]"

The policy underlying Section 21
of Code of Civil Procedure is that when the
case has been tried by a court on merits
and the judgment rendered, it should not be
liable to be reversed purely on technical
grounds, unless it has resulted in failure of
justice. The provisions akin to Section 21
are also contained in Section 11 of the Suit
Valuation Act, 1887 and Section 99 of Code
of Civil Procedure. This Court had
occasion to consider the principle behind
Section 21, Code of Civil Procedure and
Section 11 of the Suit Valuation Act, 1887
1428 INDIAN LAW REPORTS ALLAHABAD SERIES
in AIR 1954 SC 340, Kiran Singh v.
Chaman Paswan. In paragraph 7 of the
judgment following was laid down: -

7.
....The
policy
underlying
Sections 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
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
contention
of
the
appellants, therefore, that the decree and
judgment of the District Court, Monghyr,
should be treated as a nullity cannot be
sustained under Section 11 of the Suits
Valuation Act.

One more submission which was
raised in the said appeal was considered by
this Court. One of the submission of the
appellant who had instituted the suit in the
subordinate court was that as per the
revised valuation, the appeal against the
decree of subordinate judge did not lay
before the District Court but to the High
Court, hence, the judgment of the District
Judge in appeal should be ignored. The
appeal in the High Court be treated as first
appeal. It was contended that appellant has
been prejudiced in the above manner.
Rejecting the above submissions, this court
laid down following in paragraphs 11 and
12:-

11. .....This argument proceeds on
a misconception. The right of appeal is no
doubt
a
substantive
right,
and
its
deprivation is a serious prejudice; but the
appellants have not been deprived of the
right of appeal against the judgment of the
Subordinate Court. The law does provide
an appeal against that judgment to the
District Court, and the plaintiffs have
exercised
that
right.
Indeed,
the
undervaluation has enlarged the appellants
right of appeal, because while they would
have had only a right of one appeal and
that to the High Court if the suit had been
correctly
valued,
by
reason
of
the
undervaluation they obtained right to two
appeals, one to the District Court and
another to the High Court. The complaint
of the appellants really is not that they had
been deprived of a right of appeal against
the judgment of the Subordinate Court,
which they have not been, but that an
appeal on the facts against that judgment
was heard by the District Court and not by
the High Court. This objection therefore
amounts to this that a change in the forum
of appeal is by itself a matter of prejudice
for the purpose of Section 11 of the Suits
Valuation Act.

12. The question, therefore, is,
can a decree passed on appeal by a court
which had jurisdiction to entertain it only
by reason of undervaluation, be set aside
on the ground that on a true valuation that
court was not competent to entertain the
appeal?
Three
High
Courts
have
considered the matter in Full Benches, and
have come to the conclusion that mere
change of forum is not a prejudice within
the meaning of Section 11 of the Suits
Valuation Act. Vide Kelu Achan v. Cheriya
Parvathi Nethiar Mool Chand v. Ram
Kishan and Ramdeo Singh v. Raj Narain. In
our judgment, the opinion expressed in
these decisions is correct.

The above principle has been
reiterated by this Court in AIR (1962) SC
199, Hiralal vs. Kalinath and AIR 1963 SC
634, Bahrain Petroleum Co. vs. P.J.Pappu
and Another.

This court in (1993) 2 SCC 130,
R.S.D.V. Finance Company Private Limited
5 All. Tara Prasad Sonkar & Anr. Vs. Smt. Binod Devi & Ors.
1429
vs. Shree Vallabh Glass Works Ltd. had
again considered Section 21 of the Code of
Civil Procedure. In paragraphs 7 and 8,
following has been laid down: -

7. ....It may be further noted that
the learned Single Judge trying the suit had
recorded a finding that the Bombay Court
had jurisdiction to entertain and decide the
suit. 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.

8. 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 (2005) 7 SCC 791, Harshad
Chiman Lal Modi vs. DLF Universal Ltd.,
this court had again considered Section 21
and other provisions of Code of Civil
Procedure. In paragraph 30, following has
been laid down: -

30. ....The jurisdiction of a court
may be classified into several categories.
The important categories are (i) territorial
or
local
jurisdiction;
(ii)
pecuniary
jurisdiction; and (iii) jurisdiction over the
subject-matter. So far as territorial and
pecuniary jurisdictions are concerned,
objection to such jurisdiction has to be
taken at the earliest possible opportunity
and in any case at or before settlement of
issues. The law is well settled on the point
that if such objection is not taken at the
earliest, it cannot be allowed to be taken at
a subsequent stage. Jurisdiction as to
subject- matter, however, is totally distinct
and stands on a different footing. Where a
court has no jurisdiction over the subject-
matter of the suit by reason of any
limitation imposed by statute, charter or
commission, it cannot take up the cause or
matter. An order passed by a court having
no jurisdiction is a nullity.

Again in (2007) 13 SCC 650,
Subhash Mahadevasa Habib v. Nemasa
Ambasa Dharmadas, this court held that
there is distinction between lack of inherent
jurisdiction and objection to territorial and
pecuniary jurisdiction. This court noticed
the amendments made in Section 21 in the
year 1976. Following was stated in
paragraph 34, 37 and 41:-

34. It may be noted that Section
21 provided that no objection as to place of
the suing can be allowed by even an
appellate or revisional court unless such
1430 INDIAN LAW REPORTS ALLAHABAD SERIES
objection was taken in the court of first
instance at the earliest possible opportunity
and unless there has been a consequent
failure of justice. In 1976, the existing
section was numbered as sub-section (1)
and sub-section (2) was added relating to
pecuniary jurisdiction by providing that no
objection as to competence of a court with
reference to the pecuniary limits of its
jurisdiction shall be allowed by any
appellate or revisional court unless such
objection had been taken in the first
instance at the earliest possible opportunity
and unless there had been a consequent
failure of justice ........

37. As can be seen, Amendment
Act 104 of 1976 introduced sub-section (2)
relating to pecuniary jurisdiction and put it
on a par with the objection to territorial
jurisdiction and the competence to raise an
objection in that regard even in an appeal
from the very decree. This was obviously
done in the light of the interpretation
placed on Section 21 of the Code as it
existed and Section 11 of the Suits
Valuation Act by this Court in Kiran Singh
v. Chaman Paswan followed by Hiralal
Patni v. Kali Nath and Bahrein Petroleum
Co. Ltd. v. P.J. Pappu. Therefore, there is
no justification in understanding the
expression objection as to place of suing
occurring in Section 21-A as being
confined to an objection only in the
territorial sense and not in the pecuniary
sense. Both could be understood, especially
in the context of the amendment to Section
21 brought about by the Amendment Act, as
objection to place of suing.

41. In the light of the above, it is
clear that no objection to the pecuniary
jurisdiction of the court which tried OS No.
61 of 1971 could be raised successfully
even in an appeal against that very decree
unless it had been raised at the earliest
opportunity and a failure of justice or
prejudice was shown. Obviously therefore,
it could not be collaterally challenged. That
too not by the plaintiffs therein, but by a
defendant
whose
alienation
was
unsuccessfully challenged by the plaintiffs
in that suit.

Now, reverting back to facts of
this case it is apparent from the judgment
dated 22.10.2016 of Additional District
Judge, that no objection to the competence
of Additional District Judge to decide the
case was taken by any of the parties. No
objection having been taken to the
pecuniary jurisdiction of the Additional
District Judge, Section 21 of the Civil
Procedure
Code
comes
into
play.
Subsection (2) of Section 21 provides that
no objection as to the competence of the
Court with reference to the pecuniary limits
of the jurisdiction shall be allowed by any
Appellate or Revisional Court unless
conditions mentioned therein are fulfilled.
No objection has been raised by respondent
tenant regarding competence of the Court.
Subsection (2) precludes the revisionist to
raise any objection regarding competence
of the court and further revisional court
ought not to have allowed such objection
regarding
competence
of
Court
of
Additional District Judge to decide the suit.
The respondent tenant did not raise any
objection regarding competence of the
Court and took a chance to obtain
judgments in his favour on merits, he
cannot be allowed to turn-round and
contend that the court of Additional District
Judge had no jurisdiction to try the Small
Cause Suit and the judgment is without
jurisdiction and nullity. Section 21 has been
enacted to thwart any such objection by
unsuccessful party who did not raise any
objection regarding competence of court
and allowed the matter to be heard on
merits. Further, in deciding the small cause
suit by Additional District Judge, the tenant
5 All. Tara Prasad Sonkar & Anr. Vs. Smt. Binod Devi & Ors.
1431
has not proved that there has been a
consequent failure of justice.

The High Court in the impugned
judgment has not adverted to Section 21 of
the Code of Civil Procedure. In judgment of
Shobhit Nigam (Supra) also, affect of
Section 21 was neither considered nor
raised. Section 21 contains a legislative
policy which policy has an object and
purpose. The object is also to avoid retrial
of cases on merit on basis of technical
objections.

There is another judgment of
Single Judge of the High Court referred to
by the learned counsel for the respondent
i.e. SCC Revision No.305 of 2016, Tejumal
vs. Mohd. Sarfraz, 2017 (121) ALR 392. In
the above case, learned Single Judge had
allowed the revision under Section 25
against the judgment dated 12.08.2016
passed by Additional District and Sessions
Judge on the ground that the judgment of
Additional District Judge was without
jurisdiction. In paragraph 6 of the
judgment,
High
Court
had
noticed
judgment of this court in R.S.D.V. Finance
Company Private Limited vs. Shree Vallabh
Glass Works Ltd. where it was held that in
view of Section 21(1) of the Code of Civil
Procedure, objection as to the place of
suing should be taken by the party
concerned in the court of first instance at
the earliest possible opportunity and the
objection to this effect shall not be allowed
by the Appellate or Revisional Court but
relying on the judgment of this Court in
Kiran Singh Vs. Chaman Paswan, learned
Single Judge held that defect of jurisdiction
whether pecuniary or territorial or to the
subject matter cannot be cured and can be
set up at any stage of the proceeding.

We are of the view that the above
view of the learned Single Judge is neither
in consonance with the judgment of this
Court in Kiran Singhs case nor with
R.S.D.V. Finance Company Private Limited
(supra) which has been noted and referred
to by learned Single Judge. Section 21 is
statutory recognition of the legislative
policy which cannot be ignored or given a
go-by by the litigants who challenges an
unfavourable decision.

We thus of the view that the view
of the learned Single Judge in Tejumal Vs.
Mohd. Sarfraj does not lay down the
correct law and cannot be approved.

In the foregoing discussion, we
are of the view that High Court committed
error in allowing the S.C.C. Revision filed
by the respondent tenant without taking
into consideration Section 21 of the Code
of Civil Procedure.

We thus hold that even when the
court of Additional District Judge was not
competent to decide the Small Causes Suit
in question on the ground that the
pecuniary jurisdiction is vested in Court of
Small Causes i.e. Civil Judge, Senior
Division w.e.f. 07.12.2015, no interference
was called in the judgment of Additional
District Judge in the exercise of Revisional
Jurisdiction by High Court in view of the
provisions of Section 21 of Code of Civil
Procedure."

13. Learned counsel for the opposite
parties has also relied upon paragraph 5 of
judgement of this Court in the matter of
Rajendra Kumar @ Vinay Kumar (supra),
which are quoted below;

"5. In view of the fact admitted by
learned counsel for the tenant-revisionist
that
objection
as
to
the
pecuniary
jurisdiction was not specifically raised by
the tenant-revisionist before the court
below after the amendment was made in
Section 15 of the Provincial Small Cause
Courts Act, 1887, he can not be permitted
to raise the objection as to the pecuniary
1432 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction in view of the provisions of
Section 21 of the Civil Procedure code,
1908 and the law laid down by Hon'ble
Supreme Court in the case of Om Prakash
Agarwal since Deceased Thr. Lrs. & Ors
(supra) (paragraphs 56 to 59). Thus, there
is no merit in this revision, therefore, the
revision is dismissed."

14.

Learned
counsel
for
the
revisionists has admitted that revisionistsdefendants have not raised the issue of
jurisdiction due to pecuniary limits in their
written submission, but his argument was
focused only on the ground that it is a
question relating to jurisdiction which goes
to the root of matter and can be raised at
any stage. Judgement relied by him also
support the very same contention.

15. There is no doubt in the
submission of learned counsel for the
revisionists that a question relating to
jurisdiction which goes to the root of the
matter can be raised at any stage, but in
present case, there is specific bar provided
in Section 21 of CPC, 1908, which says
that it can be raised in the Court of first
instance and not thereafter. Therefore,
argument so advanced and judgement
relied upon cannot be accepted.

16. Certainly Section 15 of CPC,
1908 provides Court in which suits to be
instituted whereas Sections 21 of CPC,
1908 provides objection to jurisdiction.
Sections 15 & 21 are being quoted below;

"15. Court in which suits to be
instituted.- Every suit shall be instituted in
the Court of the lowest grade competent to
try it.

21. Objections to jurisdiction.-
[(1)] 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 or settled at or before
such settlement, and unless there has been
a consequent failure of justice.

[(2) No objection as to the
competence of a Court with reference to the
pecuniary limits of its jurisdiction 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 a
consequent failure of justice.

(3) No objection as to the
competence of the executing Court with
reference to the local limits of its
jurisdiction shall be allowed by any
Appellate or Revisional Court unless such
objection was taken in the executing Court
at the earliest possible opportunity, and
unless there has been a consequent failure
of justice.]"

17. Section 21 of Sub-section (1) deals
with the pecuniary limits of jurisdiction of
Court and it is very well stated that no
objection with regard to competence of Court
with reference of pecuniary limits 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. Whereas in present case, this
objection has never been taken in written
submission, therefore, at this stage, contrary
to provisions of Section 17(1) of the
Provincial Small Cause Courts Act, 1887, no
objection can be entertained with regard to
jurisdiction of Court based upon pecuniary
limits.

18. It is also not disputed that it is not
a case of lack of inherent jurisdiction.
5 All. Sabir Ahmad & Anr. Vs. Khali Ulla
1433
There is no doubt on the point that at the
time of filing of Small Causes Case, rent
was claimed as Rs. 5,000/- per month and
accordingly, valuation of suit was more
than Rs. 1,00,000/-. Therefore, Court was
having jurisdiction to try the case and
jurisdiction can only be ceased based on
pecuniary limits subject to raising objection
in written submission, which was never
raised. Therefore, competence of Court
based
upon
jurisdiction
cannot
be
challenged without taking objection in
written submission at the first instance.
Apex Court in the matter of Om Prakash
Agarwal (Supra) has taken very same view
that no order can be passed contrary to
provisions of Section 21 of CPC, 1908.
Relying upon the very same judgement,
this Court in the matter of Rajendra Kumar
@ Vinay Kumar (supra) has also taken the
same view.

19. Therefore, under such facts of the
case as well as provisions of Section 21 of
CPC, 1908 and the judgements discussed
above, there is no illegality in the
impugned order.

20. Accordingly, revision lacks merit
and is dismissed.

21. No order as to costs.
----------
(2022)05ILR A1433
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 43 of 2022

Sabir Ahmad & Anr.