Prikshit Raj Mehra & Anr. vs Bimla Devi
2011 Latest Caselaw 1232 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: 24.02.2011
                   Judgment Delivered on: 01.03.2011


+            RSA No. 116/2004 and CM No. 7312/2004


PRIKSHIT RAJ MEHRA & ANR.                        ...........Appellant

                   Through:    Mr.   N.S.   Vashisht   along       with
                               Mr.Vishal Singh. Advocates.

                   Versus

BIMLA DEVI                                     ..........Respondent
                   Through:    Mr. Amit S. Chadha, Sr. Advocate
                               with Mr. Mohit Gupta, Advocate.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?              Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. This appeal has impugned the judgment and decree dated

17.04.2004 which had endorsed the findings of the Trial Judge

dated 11.09.2001 whereby the suit filed by the plaintiff, Smt. Bimla

Devi, seeking possession of the suit property i.e. property bearing

shop no. 40 A, Khan Market, New Delhi had been decreed.

2. Case of the plaintiff is that one Captain Anant Singh was a

licencee in respect of afore-noted suit property. Defendant no. 1

had taken over the licence from Captain Anant Singh and is since

in possession of the said shop at the monthly licence-fee of ` 300/-

excluding electricity and water charges. The defendant is running

a business of a printing press in the afore-noted suit property.

3. Plaintiff had earlier filed an eviction petition against the

defendant seeking his eviction. This was before the Additional

Rent Controller. The plea set up by the defendant was that he is

not a tenant but a licencee in the suit premises. On the said plea,

the plaintiff withdrew the eviction petition. This was vide order

dated 22.01.1984. The statement of the respective parties i.e. the

plaintiff and the defendant was recorded separately by the Rent

Controller wherein the defendant had stated that he is a licencee

and not a tenant; plaintiff was accordingly permitted to withdraw

the eviction petition; costs of Rs. 150 had been imposed upon the

plaintiff. The said orders had been proved before the trial judge as

Ex. PW 1/D7, PW 1/D8 and PW 1/D9.

4. Legal notice dated 21.01.1984 was served upon the

defendant calling upon him to handover the peaceful and vacant

possession to the plaintiff but to no avail. Present suit was filed.

5. Defendants contested the suit. Bar of Section 50 of the Delhi

Rent Control Act was invoked. It was stated that the defendant is a

tenant in the suit premises and not a licencee. The suit property

had not been properly valued for the purpose of court fee and

jurisdiction.

6. On the pleadings of the parties, following six issues were

framed:-

i) Whether the suit is not properly valued for the purpose of

court fee and jurisdiction? OPD

ii) Whether this Court has no pecuniary jurisdiction to try the

suit? OPD

iii) Whether defendant no. 1 is a licensee of the plaintiff? OPP

iv) Whether the defendant no. 1 is a tenant in the suit property

of plaintiff. If so, its effect? OPD.

v) Whether the plaintiff is entitled to the possession of the suit

premise? OPP

vi) Relief.

7. Oral and documentary evidence of the parties was adverted

to. The contention of the defendant in the written statement that

the value of the suit property is not less than Rs. 1 lac was noted.

In the same paragraph, in the later part, defendant had stated that

the market value is more than Rs. 1 lac. Trial Judge returned a

finding that the suit had been improperly valued; court fee should

have been affixed at the market value of the suit property, plaintiff

was granted opportunity to pay up the balance court fee which has

since admittedly been paid. The trial court was also of the view

that at the time of the filing of the suit in view of the averments

made in the plaint, the court had the pecuniary jurisdiction; it

returned a finding that even assuming that the suit property has to

be valued at `1 lac, pecuniary jurisdiction of the trial court having

since been enhanced, it had the jurisdiction to try the suit. On

issue nos. 4 and 5, the court, after a detailed scrutiny of the oral

and the documentary evidence, returned a positive finding in

favour of the plaintiff holding that the defence of the defendant

that he is a tenant is not substantiated; estoppel operates against

him; his plea before the Rent Controller that he is a licencee in the

suit property and not a tenant was an admission of fact and he

cannot now set up a contrary plea. The documentary evidence

including the documents Ex. DW 1 / 2 to DW 1/33 which were

covering letters, postal receipt and AD Cards through which the

defendants made his submission that he is a tenant had also been

adverted to but were rejected. Suit of the plaintiff was decreed.

8. In appeal, the impugned judgment had endorsed this finding.

They are thus two concurrent findings of fact against the appellant.

9. This is a second appeal. After its admission on 12.12.2008,

the following substantial questions of law had been formulated:-

"Whether the Trail Court and the Appellate Court was

justified in holding that the appellant was barred from raising a

plea that the relationship between the parties constituted a

tenancy and therefore, the Civil Court did not have jurisdiction to

entertain the suit?"

Thereafter, on 15.02.2011, this court had framed an

additional substantial question of law which reads as follows:-

" Whether the finding in the impugned judgment dated

17.04.2004 while answering issues No. 1 & 2 (as framed by the

trial court) was a perverse finding and if so, its effect?"

10. On behalf of the appellant, it has been urged that the

findings on issue nos. 1 and 2 are perverse; trial court had no

jurisdiction to try the suit; it is pointed out that jurisdiction of the

court is a pure question of law and going to the root of the matter,

the inherent lack of jurisdiction, would make the entire

proceedings non est. Reliance has been placed upon judgment

reported in (1991) 1 Supreme Court Cases 494 Isabella Johnson Vs.

M.A. Susai by Lrs. to support the submission that a mere fact that

the appellant had made a statement before the Rent Controller (in

the earlier eviction proceedings) that he was a licencee would not

be a conclusive finding of fact and the courts below in this case

having relied upon this sole so- called admission of the defendant

to decree the claim of the plaintiff has committed an illegality; it

was incumbent upon the courts below to have examined this issue;

the said admission would not operate as res judicata. It is pointed

out that this judgment would apply to all four squares to the facts

of the instant case. Reliance has also been placed upon the

judgments reported in 1970 (1) SCC 613 Mathura Prasad Bajoo

Jaiswal and Ors Vs. Dossibai N.B. Jeejeebhoy and (1987) 4 SCC 410

Richpal Singh and Ors. It is submitted that the order of the Rent

Controller was not a final decision upon the relationship of

landlord and tenant between the parties; it was still open to

challenge and would not operate as res judicata.

11. Arguments have been countered. It is submitted that this is a

second appellate court and concurrent findings of fact cannot be

interfered with easily. The first substantial question of law

formulated on 12.12.08, in fact, had not arisen and was also not a

part of memorandum of appeal, in the absence of which the court

could not have formulated such a substantial question of law.

Reliance has been placed upon a judgment of the Apex Court

reported in (200) 1 SCC 134 Veerayee Ammal Vs. Seeni Ammal as

also another judgment reported in (1997) 4 SCC 713 Panchugpal

Barua and Ors Vs. Umesh Chandra Goswami and Ors to support

the submission that unless and until a substantial question of law

arises, no interference is called for at the second appellate stage.

Reliance has also been placed upon AIR 2002 Kerala 133 Raman

Pillai Krishna Pillai and Ors. Vs. Kumaran Parameswaran and Ors.

as also upon AIR 1974 SC 471 D.G. Palekar V.S. R. Krishna Iyer

and R.S. Sarkaria to support the submission that under Section 58

of the Indian Evidence Act 1872; admission is the best form of

evidence and an admission does not require any proof. It is

submitted that the admission made by the defendant before the

Rent Controller that he is not a tenant but a licencee was an

admission of fact which requires no proof; it has to read. Reliance

has also been placed upon AIR 1978 Andhra Pradesh 160

Appannammanayuralu Vs. B. Sreeramulu to support his submission

that lack of pecuniary jurisdiction is not a lack of inherent

jurisdiction; it is curable; in this case, defect has been cured when

trial court had granted opportunity to make up the deficiency in

the court fee, it had since been paid. Lastly, reliance has been

placed upon AIR 1996 Orissa, 172 D.M. Surendra Mahnti Vs.

Ghasiram Mahanti & Ors. to support the submission that the

objection on pecuniary jurisdiction, if rejected and decision given

cannot be interfered with unless there has been any failure of

justice which principle would operate in the instant case as well.

12. Record has been perused. The plaintiff, Bimla Devi, had filed

an eviction petition against the defendant on the ground of non-

payment of rent; the said document had been proved as Ex. PW 1

/2. Her contention was that the defendant was her tenant. The

defence of the defendant in his written statement was that he was

a licencee and not a tenant; relationship of landlord and tenant had

been denied; this written statement was proved as Ex. DW 1/P1.

Ex. PW 1/D7 to Ex. PW 1/D9 dated 02.11.1992 are the proceedings

dated 02.11.1829 before the Rent Controller whereby this plea of

the defendant that he is a licencee and not a tenant, the plaintiff,

Bimla Devi, had been permitted to withdraw the eviction petition

with a permission to seek her remedy in terms of the admission of

the defendant that he is a licencee in the suit premises; respondent

was also awarded costs of Rs. 150. It is also the case before this

court that this admission was made by the respondent either under

coercion, duress or under any mistake of fact of law. It was a

voluntary admission. Facts admitted need not be proved; this is a

statutory provision as contained in Section 58 of the Evidence Act.

They are in fact the best proof of facts and stand on a higher

footing than any other evidentiary admission. The trial judge had

noted that this admission operates as an estoppel; defendant now

setting up a plea that he is a tenant of the suit property is

estoppled from doing so. However, this was not the only reason for

arriving at this finding. Trial judge had scrutinized and

appreciated the host of documentary evidence led by the

respective parties which included documents of the defendants Ex.

DW 1/ 2 to DW 1/ 33 which were covering letters, postal receipts

and AD cards whereby the defendant had tendered rent to the

plaintiff on various occasions; his contention being that these

documents which were after the date of the withdrawal of the

eviction petition i.e. after 2.11.1982 had recognized him as a

tenant. Ex. DW 1/P1 was also the document relied upon by the

defendant which was a rent receipt purportedly issued by the

plaintiff in favour of Anant Singh; plaintiff had denied this

document; Anant Singh had not come into the witness box. This

document had also been rightly discarded.

On an appreciation of this documentary evidence, this court

had returned a finding against the defendant holding that these

were unilateral acts of the defendant enacted to create a defence

in his favour; no document had been produced by the defendant to

show that the plaintiff had,in fact, accepted this amount as a rent;

the payment of rent by the afore-noted documents had thus not

been established by the defendant.

13. DW-1 in his cross-examination had also admitted that the

premises had not been let out to him; plea of the defendant all

along was that the premises had been let out to Anant Singh and

since he had purchased the running business of Anant Singh, the

tenancy also stood transferred to him. These submissions were,

however, not proved by the plaintiff. On this cogent and coherent

evidence led before the trial court, the trial judge was of the view

that the defendant had failed to establish the plea that he is a

tenant; he was a licencee. This was while disposing of issues no. 3

and 4. The impugned judgment had endorsed this finding. It was

rightly held by the two courts below that contrary and inconsistent

pleas cannot be taken by the appellant, he cannot be allowed to

approbate and reprobate, he cannot blow hot and cold in the same

breath. Submission made by the defendant before the Rent

Controller admitting himself to be a licencee was the reason why

the eviction petition had been withdrawn by the plaintiff; he could

not now go back and take a contrary plea that he was a tenant.

The entire evidence had been scrutinized by the facts finding

courts below to draw the conclusion that the plea of tenancy set up

by the defendant had on all counts not been established. These

findings can in no manner be said to be perverse; they call for no

interference.

14. The judgments relied upon by the learned counsel for the

appellant reported in(1991) 1 Supreme Court Cases 494 Isabella

Johnson Vs. M.A. Susai by Lrs. is distinct on its fact in that case.

The apex court in that case had held that the question of

jurisdiction of a court is a pure question of law unrelated to the

rights of the parties and such a question cannot operate as res

judicata in a subsequent suit. There is no dispute to this

proposition. However, this ratio is inapplicable to the instant case.

That apart from the narration noted hereinabove, it is clear that

the courts below have not decided this issue (issue no 5 and 6) on

the point of res judicata, the defendant had made a factual

admission that he is a licencee; court had rightly returned a finding

that he is estopped from changing his stand. This answers the first

substantial question of law.

15. The submission of the respondent on this score that the

substantial question of law which does not form a part of the

memorandum of appeal cannot be framed by this court is

negatived; this court has ample powers under the provisions of

Section 100 read with its proviso to frame any substantial question

of law even if it has not being noted in the memorandum of appeal.

16. This court shall now answer the additional substantial

question of law.

17. The present suit was a suit for possession/mesne profits.

Para 14 has detailed the value of the suit for the purposes of court

fee and jurisdiction. It had valued it at Rs. 3300/- which was the

annual licence fee recoverable from the defendant. Defendant had

contested this claim in the corresponding part of the written

statement. His submission was that the court fee has to be affixed

on the market value of the premises which is not less than Rs. 1

lac; in another part of para 14, he had stated that the market value

is more than Rs. 1 lac. Issue nos. 1 and 2 had been framed on this

count (as afore-noted). The onus to discharge these issues was on

the defendant. DW 1 had deposed that the market value of the

premises in the year 1985-86 was more than a lac of rupees; this

court has no pecuniary jurisdiction. In his cross- examination, he

admitted that he had given this opinion on the basis of the

information received from the property dealers; he could not tell

their names and addresses; he denied the suggestion that he had

made this statement on a guess/presumption; he did not know

whether any shop in the locality had been sold or purchased for the

said amount. This evidence had been appreciated by both the fact-

finding courts. The trial judge had recorded this in para 13 of this

judgment. It had noted that apart from the bald statement of

defendant no. 1 which had been subjected to cross -examination

wherein he had admitted that this information of the value of the

suit property of about more than Rs. 1 lac was given to him by

property dealers whose names and addresses he did not know

coupled with his admission in the matter stating that it is about 1

lac and the onus to discharge being on the defendants, the trial

judge was of the view that the defendant has failed to prove that

the market value of the suit premises was more than Rs. 1 lac. It

was held to be about ` 1 lac. This fact finding was assailed and

upheld by the first appellate court. The first appellate court had

re- examined and re- appreciated the evidence led on this score by

the defendant. This second appellate court not being a third fact

finding court, unless the finding is perverse cannot interfere in

such a fact finding. Time had thereafter been granted to the

plaintiff to correct valuation and to make up the deficiency in the

court fee which he had accordingly done. There was no bar; Order

7 Rule 11 is, in fact, the statutory provision engrafted for the said

purpose.

18. The plea of the appellant that it was incumbent upon the

court to have decided the question of pecuniary jurisdiction as a

preliminary issue also holds no water; it was for the plaintiff to

have pressed this plea before the trial court; in the absence of

which, nothing precluded the trial court to decide this issue along

with the other issues. The trial judge had also noted that although

at the time of the filing of the suit, its pecuniary jurisdiction was

Rs. 25,0000 but at the time of the decision (11.09.2001), the

pecuniary jurisdiction of the court had been Rs. 1 lac; the court

was of the view that it had the pecuniary jurisdiction to try the

case.

A plaintiff is at liberty to value his suit as per his averments

in the plaint. In this case, he had valued it for the purpose of court

fee and jurisdiction at Rs. 3600/-; on an objection by the defendant

which was decided along with the main judgment, opportunity had

been granted to the plaintiff to make up the deficiency. Thus, at the

time of the institution of the suit as per the plaintiff, court did have

the pecuniary jurisdiction to try the suit. At the time of its disposal,

its pecuniary jurisdiction had admittedly been enhanced; court had

rightly concluded that at that time, it had the requisite pecuniary

jurisdiction to do so.

19. Section 6 of the Code of Civil Procedure (hereinafter referred

to as the „Code‟) relates to the pecuniary jurisdiction of Courts and

stipulates that a Court shall not have jurisdiction over suits where

the amount or value of its subject matter exceeds its pecuniary

limits. The Code by itself does not prescribe any pecuniary limits.

Section 9 is the general provision in the Code which confers the

jurisdiction on the courts to try all suits of a civil nature, excepting

suits of which their cognizance is either expressly or impliedly

barred. Section 11 of the Suit Valuation Act, 1887 indicates that

not -withstanding anything contained in Section 578 of the Code,

an objection that the Court which had no jurisdiction over the suit

or appeal had decided it by reason of over-valuation or under-

valuation should not be entertained by the appellate court unless

the under-valuation or over-valuation thereof has prejudicially

affected the disposal of the suit or the appeal on its merits.

Although this provision deals with the over-valuation/under-

valuation of the suit, it is also concerned with the pecuniary

jurisdiction of the court. If the court is vested with jurisdiction to

entertain a matter of a particular value, the change in the value on

account of under or over valuation shall not affect the validity of its

decree unless it has prejudicially affected the disposal of the suit

on its merits. This section is founded on the principle that the

Court‟s decree shall not be affected on the ground of its lack of

pecuniary jurisdiction, if it had the inherent jurisdiction to deal

with such a matter.

20. The Supreme Court in Kiran Singh V. Chaman Paswan, AIR

1954 SC 340 had considered the principle behind this statutory

provision and the relevant extract as quoted in the judgment of V.

Appannammanayuralu Vs. B. Sreeamulu reads as follows:-

" S.11 of the Suits Valuation Act of 1887 is that a decree passed by a Court, which would have had no jurisdiction to hear a suit or appeal but for over-valuation or under-valuation, is not to be treated as what it would be put for the section, null and void and that an objection to jurisdiction based on over-valuation or under- valuation, should be dealt with under that section and not otherwise. The same principle has been adopted in S. 21 of the Civil P.C, with reference to the objection relating to territorial jurisdiction. The policy underlying S. 21 and S. 99, C.P.C. and S. 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."

21. In Hira Lal Vs. Kali Nath (AIR 1962 SC 199) (supra) , the

Supreme Court had explained what is meant by inherent lack of

jurisdiction. It was pointed out as under:-

" the objection to the local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. As we have already pointed out, it could be said that the Court, which has passed a decree, is lacking in inherent jurisdiction only when it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction, or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it."

22. Thus the decree did not suffer from any inherent want of

jurisdiction. The appellant/defendant has even otherwise failed to

show that he has suffered any prejudice or injustice on this count.

Section 21 of the Code states that no objection on jurisdiction shall

be entertained by the appellate or the revisional court, unless the

appellant/objector is able to show that there has been a consequent

failure of justice. This has neither been pleaded and nor argued.

The additional question of law is answered accordingly.

23. There is no merit in the appeal. Appeal as also the pending

application is dismissed.

INDERMEET KAUR, J.

March 01 , 2011 ss