Coming to second substantial question of law, no
doubt the plaintiff had valued the suit for the purpose of
court fees and jurisdiction at Rs.100/- as on the date of filing
of the suit i.e. on 31/01/1998. Firstly, the defendants in the
written statement did not take any objection regarding
pecuniary jurisdiction of the Court which was required to be
taken in terms of Section 11 of the Suit Valuation Act.
Moreover, as rightly submitted by Mr. Coelho Pereira, the
jurisdiction of Civil Judge, Junior Division which was upto
Rs.25,000/- as on the date of filing of the suit, was increased
to Rs.1 Lakh with effect from 18/08/1998 by virtue of
amendment carried out to Section 20(3) of the Goa Civil
Courts Act. As such, on the date of passing of the decree,
learned trial Court had very much jurisdiction to pass the
decree which was impugned before the lower appellate
Court. Therefore, in my view, the decree passed by the trial
Court cannot be said to be without jurisdiction and illegal
inasmuch as on the date of passing of the decree, learned
trial Court had very much jurisdiction to pass the decree.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO.15/2004
1. Shri Victorino J. Travasso
Vs.
Smt. Rosy Noronha,
CORAM :- A. P. LAVANDE, J.
Dictated on : 6
th/13th December, 2012.
Citation;AIR 2013 (NOC)92 bombay
The application filed by the respondent for
payment of deficit Court fee of Rs.2,100/-, is taken on record.
2. Heard Mr. Teles, learned Counsel for the
appellants and Mr. Coelho Pereira, learned Senior Counsel
for the respondent. … 3 …
3. By this Second Appeal, the appellants take
exception to judgment and decree dated 14/10/2003 passed
by the Additional District Judge, Margao in Regular Civil
Appeal No.56/2002 by which the appeal preferred by the
appellants against the judgment and decree dated
28/12/2001 passed in Regular Civil Suit No.17/1998 by
learned Civil Judge, Junior Division, Quepem, has been
dismissed.
4. The appellants are the original defendants and
the respondent is the plaintiff in the above suit.
5. The parties shall hereinafter be referred to as per
their status before the trial Court.
6. The plaintiff filed the suit seeking declaration and
consequential reliefs against the defendants on the ground
that an agreement was entered into between the parties by
virtue of writing dated 03/02/1995 by which a plot
admeasuring 1000 square metres of Survey No.127/4(part) of
village Sirvoi of Quepem Taluka, was agreed to be sold and
part consideration of Rs.10,000/- was advanced to the
defendants. It was the case of the plaintiff that the said plot
was agreed to be sold for a total consideration of Rs.40,000/-
out of which as stated above, an advance of Rs.10,000/- was
paid and the plaintiff was ready and willing to pay the
balance consideration of Rs.30,000/-. Since it was the case of
the plaintiff that since defendants have refused to transfer
the suit plot, she has no other alternative but to file the suit.
The suit was contested by the defendants by filing written
statement on 27/04/1998. Thereafter, additional written
statement was filed on 13/12/1999.
7. In the suit, the plaintiff examined herself and PW2
Anthony Fernandes whereas defendant no.1 examined
himself.
8. Learned trial Court framed the following issues :
“(i) Whether the plaintiff proves that defendants
entered into an agreement to sell the suit plot to her
and towards which she paid the advance of
Rs.10,000/- to the defendants on 3.2.95 out of total
purchase amount of Rs.40,000?
(ii) Whether the plaintiff proves that the possession
of suit plot was handed over to the plaintiff by the
defendants, but the defendants forcibly constructed
boundary wall of laterite stones around the suit plot?
(iii) Whether the plaintiff proves that she
approached defendants requesting them to accept
balance consideration amount of Rs.30,000/- and to
execute the final sale deed and that she is willing and
ever ready to perform her part of contract ?
(iv) Whether the defendants prove that the plaintiff
voluntarily paid Rs.10,000/- as advance expressing
her desire to purchase any plot of defendants and
defendants told her that any suitable plot will cost
Rs.50,000/- and would identify plot for her only if she
paid Rs.40,000/- within a year or would return her
Rs.10,000/- without interest ?”
(v) Whether defendants prove that defendant no.2
returned Rs.25,000/- to the plaintiff paid by her and
defendants told plaintiff to take back the advance
amount of Rs.10,000/- and informed that they would
not identify any suitable plot for her?
(vi) Whether the defendants prove that plaintiff has
no cause of action to file the suit ?
(vii) Whether the plaintiff proves that she is entitled
for the relief claimed ?
(viii) What Order? What relief ?”
ADDITIONAL ISSUE
“Whether the plaintiff proves that she is entitled for
Mandatory injunction to demolish the boundary wall
of laterite stones constructed around the suit plot and
for restoration of the land in its original position ? ”
9. Learned trial Court answered issues no.1 and 3 in
the affirmative and issue no.7 partly in the affirmative
whereas rest of the issues were answered in the negative.
Learned trial Court also answered additional issue in the
negative. Learned trial Court, upon appreciation of the
evidence led by the parties, accepted the case set up by the
plaintiff and consequently, decreed the suit. The appeal
bearing Regular Civil Appeal No.56/2002 was preferred
before the District Court, South Goa, Margao which was
made over to District Judge-I, South Goa, Margao.
10. Learned lower appellate Court framed the
following points for determination in the appeal in terms of
Order XLI, Rule 31 of C.P.C. :
“(i) Whether the so called agreement of sale is bad
in law in view of the provisions of Article 1119 of Civil
Code ?”
(ii) Whether any interference is called for with the
findings given by the learned trial Court?”
The lower appellate Court answered both the points in favour
of the plaintiff and consequently, dismissed the appeal.
11. The appeal was admitted on the following
substantial questions of law :
“(i) Whether the valuation of the suit was
according to the valuation of the consideration in
terms of Section 7(X)(A) of the Court Fees Act,
1870 ?
(ii) Whether the trial Court had pecuniary
jurisdiction to try and entertain the present suit ?
(iii) Whether a mere suit for declaration without
claiming relief of specific performance was
maintainable and if so, whether the plaintiff/
respondent had averred and proved readiness and
willingness to perform her part of the contract under
Section 16(c) of the Specific Relief Act ?”
12. At the outset, Mr. Teles submitted that two… 8 …
additional substantial questions of law arise in the second
appeal and as such, they be formulated and be taken into
consideration for the purpose of disposal of Second Appeal.
The prayer was opposed by Mr. Coelho Pereira, learned
Senior Counsel for the respondent.
Having perused the questions sought to be raised,
at this stage, I am of the considered opinion that these
questions do not arise, having regard to the pleadings
between the parties and the contentions raised by the
defendants before the trial Court and before the lower
appellate Court. Hence, the prayer for framing additional
substantial questions of law is rejected.
13. Mr. Teles, learned Counsel for the appellants/
defendants submitted that the suit is simpliciter for
declaration and such a suit without seeking relief of specific
performance, was not maintainable. Learned Counsel further
submitted that receipt exhibit PW1/A upon which reliance has
been placed by the plaintiff does not specify the plot which
has to be transferred. As such, no decrees could have been
passed by both the Courts below in favour of the plaintiff.
Learned Counsel further submitted that the suit was filed in
the Court of Civil Judge, Junior Division in the year 1998… 9 …
when the pecuniary jurisdiction of Civil Judge, Junior Division
in terms of the Goa Civil Courts Act, 1965 was Rs.25,000/-
and having regard to the fact that the value of the property
which according to the plaintiff, was agreed to be sold by the
defendants was Rs.40,000/-, learned Civil Judge, Junior
Division had no jurisdiction to entertain the suit. Learned
Counsel further submitted that since the trial Court had no
pecuniary jurisdiction to entertain the suit, the decree passed
by the trial Court was nullity and consequently, the decree
passed by the lower appellate Court is also nullity. Learned
Counsel further submitted that the defendants and more
particularly, defendants no.1 and 2 had no right to agree to
sell the plot to the plaintiff inasmuch as they were not the
owners of the suit plot. Learned Counsel, therefore,
submitted that the decrees passed by both the Courts below
are patently illegal and as such, are liable to be quashed and
set aside. In support of his submissions, Mr. Teles placed
reliance upon the following judgments :
“(i) Chiranjilal Shrilal Goenka Vs. Jasjit Singh and
others; (1993)2 SCC 507.
(ii) Chandrika Chunilal Shah Vs. Orbit Finances Pvt.
Ltd & Ors.; 2011(4) All MR 275.… 10 …
(iii) A. V. M. Sales Corporation Vs. Anuradha
Chemicals Private Limited; (2012)2 SCC 315.”
14. Per contra, Mr. Coelho Pereira, learned Senior
Counsel appearing for the respondent/plaintiff submitted that
the suit filed by the plaintiff was essentially the suit for
declaration and specific performance. Learned Counsel
further submitted that no doubt the suit was valued at
Rs.100/- although the plaintiff was bound to pay ad valorem
court fee on the consideration amount of Rs.40,000/-. Mr.
Coelho Pereira, learned Senior Counsel, therefore, submitted
that the plaintiff has filed an application seeking extension of
time to pay deficit court fee in terms of Section 149 of C.P.C.
which deserves to be allowed. Learned Senior Counsel
further submitted that the trial Court has not framed the
issue that the defendants are not the owners of the suit
property and as such the defendants cannot be compelled to
transfer the suit plot to the plaintiff and the said issue was
raised before the lower appellate Court which was dealt with
by lower appellate Court. As such, no interference is
warranted with the impugned judgment of lower appellate
Court. Learned Senior Counsel further submitted that having
regard to the pleadings in the plaint read as a whole, it is
evident that the suit is for declaration and for specific
performance, though appropriate court fees were not paid by
the plaintiff at the time of institution of the suit. Learned
Counsel further submitted that the pleadings in the plaint as
well as the evidence led by the plaintiff clearly disclose that
the plaintiff was all throughout ready and willing to perform
her part of the contract in terms of Section 16(c) of the
Specific Relief Act and, therefore, the plaintiff is entitled to
the relief of specific performance. Insofar as jurisdiction of
the trial Court is concerned, learned Senior Counsel
submitted that though at the time of institution of the suit in
the year 1998 the pecuniary jurisdiction of Civil Judge, Junior
Division was upto Rs.25,000/- in terms of Section 20(3) of Goa
Civil Courts Act, 1965, in terms of amendment carried out to
the Goa Civil Courts Act on 18/08/1998, the pecuniary
jurisdiction of Civil Judge, Junior Division was extended upto
Rs.1,00,000/- and as such, learned trial Court has jurisdiction
to pass impugned decree. As such, the said decree cannot be
said to be either illegal or without jurisdiction. Learned
Senior Counsel lastly submitted that there are concurrent
findings of fact recorded by both the Courts below and the
appellants are not entitled to succeed on any of the
substantial questions of law formulated at the time of… 12 …
admission of appeal. Learned Counsel further submitted that
the defendants at no point of time before the trial Court took
objection as to jurisdiction on the ground that the suit was
undervalued and such objection ought to have been raised at
the earliest before the trial Court in terms of Section 11 of
the Suit Valuation Act. In support of his submissions, Mr.
Coelho Pereira placed reliance upon the judgment of Punjab
and Haryana High Court in the case of Sat Paul and another
Vs. Jai Bhan Ananta Saini; AIR 1973 Punjab and Haryana 58.
15. I have carefully considered the rival submissions,
perused the record and the judgments relied upon.
16. Insofar as the first substantial question of law is
concerned, no doubt, the suit was valued as the suit for the
purpose of declaration and no court fees were paid in respect
of the relief of specific performance. However, upon
meaningful reading of the plaint and the evidence led by the
parties, it is evident that the suit filed by the plaintiff was not
only for declaration but also for specific performance though
the prayer clause is not couched in happy language.
Needless to mention that the plaintiff would not get anything
tangible by simply asking for relief of declaration in respect
of the receipt and obviously, therefore, the plaintiff was
interested in getting declaration as well as transfer of the suit
plot in her favour upon payment of balance consideration.
17. As stated above, on behalf of the plaintiff, an
application has been filed for payment of deficit court fee of
Rs.2,100/- which is taken on record. The application has
been opposed by Mr. Teles on the ground that the plaintiff
had not prayed for specific performance in respect of the suit
plot. I have already held that suit was not only for
declaration but also for specific performance. Therefore, the
plaintiff is justified in invoking Section 149 of C.P.C. which
permits payment of deficit court fees at any stage. Section
149 of C.P.C. provides that if the court fee prescribed for the
time being has not been paid, the Court in its discretion, at
any stage, may allow the person, by whom such fee is payable
to pay deficit court fee. In my view, it would be highly unjust
to non-suit the plaintiff solely on the ground that the plaintiff
did not pay the requisite court fee in respect of the suit for
specific performance. Therefore, it would be just and proper
to permit the plaintiff to pay deficit court fee. Therefore, I
deem it appropriate to permit the plaintiff to pay deficit court
fee of Rs.2,100/- before the trial Court.
18. Coming to second substantial question of law, no
doubt the plaintiff had valued the suit for the purpose of
court fees and jurisdiction at Rs.100/- as on the date of filing
of the suit i.e. on 31/01/1998. Firstly, the defendants in the
written statement did not take any objection regarding
pecuniary jurisdiction of the Court which was required to be
taken in terms of Section 11 of the Suit Valuation Act.
Moreover, as rightly submitted by Mr. Coelho Pereira, the
jurisdiction of Civil Judge, Junior Division which was upto
Rs.25,000/- as on the date of filing of the suit, was increased
to Rs.1 Lakh with effect from 18/08/1998 by virtue of
amendment carried out to Section 20(3) of the Goa Civil
Courts Act. As such, on the date of passing of the decree,
learned trial Court had very much jurisdiction to pass the
decree which was impugned before the lower appellate
Court. Therefore, in my view, the decree passed by the trial
Court cannot be said to be without jurisdiction and illegal
inasmuch as on the date of passing of the decree, learned
trial Court had very much jurisdiction to pass the decree.
19. Insofar as third substantial question of law is
concerned, in my view, as stated above, the suit though
styled for declaration and consequential relief, was
essentially a suit for declaration and specific performance
though the prayer clause was not properly worded.
Moreover, if the suit was simpliciter for declaration, there
was no question of trial Court granting the decree of
declaration in view of Section 34 of the Specific Relief Act
inasmuch as admittedly, the plaintiff was not put in
possession and as such even prayer (b) could not have been
granted by the trial Court on admitted facts. In addition, the
defendants were very much aware that the plaintiff was
claiming transfer of the suit plot by filing the suit and as
such, at no point of time took defence that the suit
simpliciter for declaration, was not maintainable. No doubt,
the plaintiff had sought permanent injunction in respect of
the suit plot, but such relief was available to the plaintiff only
upon transfer of the suit plot in her favour.
20. Coming to the aspect of compliance of Section 16(c) of
the Specific Relief Act, upon meaningful reading of the plaint
and the evidence led by the plaintiff, it is evident that the
plaintiff was all throughout ready and willing to perform her
part of the contract. She was ready to pay balance
consideration of Rs.30,000/- for conveying the suit plot in her
favour. Moreover, it is pertinent to note that no such issue
or point for determination was framed either by the trial
Court or by the lower appellate Court respectively.
Moreover, in paragraph 8 of the plaint, the plaintiff had
specifically mentioned that she was willing and ever ready to
perform her part to purchase the suit plot by paying balance
consideration of Rs.30,000/-. Therefore, in my view, the
plaintiff had complied with the mandatory provision of
Section 16(c) of the Specific Relief Act.
21. Coming to the submission made by Mr. Teles that
the defendants are not the owners of the suit plot, therefore,
no decree for specific performance can be passed against
them is concerned, as rightly pointed out by Mr. Coelho
Pereira,learned Counsel for the respondent/ plaintiff, no issue
has been framed in this regard by the trial Court but the
issue was raised by the appellants before the lower appellate
Court and the lower appellate Court dealt with this issue. In
the absence of specific pleadings the defendants were not
entitled to raise such issue for the first time before the
Appellate Court. That apart, there was agreement between
the original owners and developers in which right has been
given in favour of defendants no.1 and 2 to sell the plot
independently to respective buyers and purchasers.
Moreover, the evidence discloses that some of the remaining
plots were taken by the defendants pursuant to agreement of
development entered into with the owners. Therefore, in my
view, the question of non-suiting the plaintiff on the ground
that the defendants have no title to the suit property, does
not arise.
22. I shall now deal with the judgments cited by both
sides.
In the case of AVM Sales Corporation (supra), the
Apex Court held that the parties by consent cannot confer
jurisdiction on the Court which has no territorial or pecuniary
jurisdiction to entertain the lis. There can be no dispute with
this proposition of law but as already held, the defendants
had not taken specific objection regarding jurisdiction in the
written statements filed and in any case though the decree
was passed by learned trial Court in the year 2001, by virtue
of amendment carried out to Civil Courts Act, learned trial
Court had jurisdiction to entertain the suit and pass the
impugned decree. Therefore, in my view, the said judgment
does not advance the case of the defendants.
In the case of Chiranjilal Goenka (supra), the
Apex Court has held that the decree passed without
jurisdiction is nullity and nonest, and its validity can be
challenged even at the stage of execution. For the very same
reason, this judgment does not help the case of the
defendants.
In the case of Chandrika Shah (supra), learned
Single Judge of this Court has held that upon amendment
being granted to the plaint seeking cancellation of
agreement, the plaintiff was required to value the suit in
terms of Section 6(iv)(ha) of Bombay Court Fees Act. I have
already permitted the plaintiff to pay additional court fee in
terms of Section 149 of C.P.C. and as such, this judgment
also does not advance the case of the defendants.
In the case of Sat Paul (supra) relied upon on
behalf of the plaintiff placing reliance upon Section 11 of
Suits Valuation Act, learned Single Judge of Punjab and
Haryana High Court held that objection to jurisdiction of the
Court to entertain the appeal based on undervaluation would
succeed only when it was shown that undervaluation had
prejudicially affected disposal of the appeal on merits,
although it was further held that deficiency in the Court fee
on the memorandum of appeal before the lower appellate
Court can be allowed to be made good even at the stage of
Second Appeal.
23. In view of the above, I do not find any merit in
Second Appeal and all the substantial questions of law
mentioned in paragraph no.11 hereinabove, are answered in
favour of the respondent/ plaintiff. Consequently, Second
Appeal stands dismissed with costs.
24. The respondent/ plaintiff is permitted to pay
deficit court fee of Rs.2,100/- in the trial Court, within a
period of eight weeks from today.
25. The respondent / plaintiff is directed to deposit
balance consideration of Rs.30,000/- in the trial Court within
a period of eight weeks from today.
26. Record and Proceedings be sent to the trial Court
in order to enable the plaintiff to pay the deficit court fees.
A. P. LAVANDE, J.
SMA
Print Page
doubt the plaintiff had valued the suit for the purpose of
court fees and jurisdiction at Rs.100/- as on the date of filing
of the suit i.e. on 31/01/1998. Firstly, the defendants in the
written statement did not take any objection regarding
pecuniary jurisdiction of the Court which was required to be
taken in terms of Section 11 of the Suit Valuation Act.
Moreover, as rightly submitted by Mr. Coelho Pereira, the
jurisdiction of Civil Judge, Junior Division which was upto
Rs.25,000/- as on the date of filing of the suit, was increased
to Rs.1 Lakh with effect from 18/08/1998 by virtue of
amendment carried out to Section 20(3) of the Goa Civil
Courts Act. As such, on the date of passing of the decree,
learned trial Court had very much jurisdiction to pass the
decree which was impugned before the lower appellate
Court. Therefore, in my view, the decree passed by the trial
Court cannot be said to be without jurisdiction and illegal
inasmuch as on the date of passing of the decree, learned
trial Court had very much jurisdiction to pass the decree.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO.15/2004
1. Shri Victorino J. Travasso
Vs.
Smt. Rosy Noronha,
CORAM :- A. P. LAVANDE, J.
Dictated on : 6
th/13th December, 2012.
Citation;AIR 2013 (NOC)92 bombay
The application filed by the respondent for
payment of deficit Court fee of Rs.2,100/-, is taken on record.
2. Heard Mr. Teles, learned Counsel for the
appellants and Mr. Coelho Pereira, learned Senior Counsel
for the respondent. … 3 …
3. By this Second Appeal, the appellants take
exception to judgment and decree dated 14/10/2003 passed
by the Additional District Judge, Margao in Regular Civil
Appeal No.56/2002 by which the appeal preferred by the
appellants against the judgment and decree dated
28/12/2001 passed in Regular Civil Suit No.17/1998 by
learned Civil Judge, Junior Division, Quepem, has been
dismissed.
4. The appellants are the original defendants and
the respondent is the plaintiff in the above suit.
5. The parties shall hereinafter be referred to as per
their status before the trial Court.
6. The plaintiff filed the suit seeking declaration and
consequential reliefs against the defendants on the ground
that an agreement was entered into between the parties by
virtue of writing dated 03/02/1995 by which a plot
admeasuring 1000 square metres of Survey No.127/4(part) of
village Sirvoi of Quepem Taluka, was agreed to be sold and
part consideration of Rs.10,000/- was advanced to the
defendants. It was the case of the plaintiff that the said plot
was agreed to be sold for a total consideration of Rs.40,000/-
out of which as stated above, an advance of Rs.10,000/- was
paid and the plaintiff was ready and willing to pay the
balance consideration of Rs.30,000/-. Since it was the case of
the plaintiff that since defendants have refused to transfer
the suit plot, she has no other alternative but to file the suit.
The suit was contested by the defendants by filing written
statement on 27/04/1998. Thereafter, additional written
statement was filed on 13/12/1999.
7. In the suit, the plaintiff examined herself and PW2
Anthony Fernandes whereas defendant no.1 examined
himself.
8. Learned trial Court framed the following issues :
“(i) Whether the plaintiff proves that defendants
entered into an agreement to sell the suit plot to her
and towards which she paid the advance of
Rs.10,000/- to the defendants on 3.2.95 out of total
purchase amount of Rs.40,000?
(ii) Whether the plaintiff proves that the possession
of suit plot was handed over to the plaintiff by the
defendants, but the defendants forcibly constructed
boundary wall of laterite stones around the suit plot?
(iii) Whether the plaintiff proves that she
approached defendants requesting them to accept
balance consideration amount of Rs.30,000/- and to
execute the final sale deed and that she is willing and
ever ready to perform her part of contract ?
(iv) Whether the defendants prove that the plaintiff
voluntarily paid Rs.10,000/- as advance expressing
her desire to purchase any plot of defendants and
defendants told her that any suitable plot will cost
Rs.50,000/- and would identify plot for her only if she
paid Rs.40,000/- within a year or would return her
Rs.10,000/- without interest ?”
(v) Whether defendants prove that defendant no.2
returned Rs.25,000/- to the plaintiff paid by her and
defendants told plaintiff to take back the advance
amount of Rs.10,000/- and informed that they would
not identify any suitable plot for her?
(vi) Whether the defendants prove that plaintiff has
no cause of action to file the suit ?
(vii) Whether the plaintiff proves that she is entitled
for the relief claimed ?
(viii) What Order? What relief ?”
ADDITIONAL ISSUE
“Whether the plaintiff proves that she is entitled for
Mandatory injunction to demolish the boundary wall
of laterite stones constructed around the suit plot and
for restoration of the land in its original position ? ”
9. Learned trial Court answered issues no.1 and 3 in
the affirmative and issue no.7 partly in the affirmative
whereas rest of the issues were answered in the negative.
Learned trial Court also answered additional issue in the
negative. Learned trial Court, upon appreciation of the
evidence led by the parties, accepted the case set up by the
plaintiff and consequently, decreed the suit. The appeal
bearing Regular Civil Appeal No.56/2002 was preferred
before the District Court, South Goa, Margao which was
made over to District Judge-I, South Goa, Margao.
10. Learned lower appellate Court framed the
following points for determination in the appeal in terms of
Order XLI, Rule 31 of C.P.C. :
“(i) Whether the so called agreement of sale is bad
in law in view of the provisions of Article 1119 of Civil
Code ?”
(ii) Whether any interference is called for with the
findings given by the learned trial Court?”
The lower appellate Court answered both the points in favour
of the plaintiff and consequently, dismissed the appeal.
11. The appeal was admitted on the following
substantial questions of law :
“(i) Whether the valuation of the suit was
according to the valuation of the consideration in
terms of Section 7(X)(A) of the Court Fees Act,
1870 ?
(ii) Whether the trial Court had pecuniary
jurisdiction to try and entertain the present suit ?
(iii) Whether a mere suit for declaration without
claiming relief of specific performance was
maintainable and if so, whether the plaintiff/
respondent had averred and proved readiness and
willingness to perform her part of the contract under
Section 16(c) of the Specific Relief Act ?”
12. At the outset, Mr. Teles submitted that two… 8 …
additional substantial questions of law arise in the second
appeal and as such, they be formulated and be taken into
consideration for the purpose of disposal of Second Appeal.
The prayer was opposed by Mr. Coelho Pereira, learned
Senior Counsel for the respondent.
Having perused the questions sought to be raised,
at this stage, I am of the considered opinion that these
questions do not arise, having regard to the pleadings
between the parties and the contentions raised by the
defendants before the trial Court and before the lower
appellate Court. Hence, the prayer for framing additional
substantial questions of law is rejected.
13. Mr. Teles, learned Counsel for the appellants/
defendants submitted that the suit is simpliciter for
declaration and such a suit without seeking relief of specific
performance, was not maintainable. Learned Counsel further
submitted that receipt exhibit PW1/A upon which reliance has
been placed by the plaintiff does not specify the plot which
has to be transferred. As such, no decrees could have been
passed by both the Courts below in favour of the plaintiff.
Learned Counsel further submitted that the suit was filed in
the Court of Civil Judge, Junior Division in the year 1998… 9 …
when the pecuniary jurisdiction of Civil Judge, Junior Division
in terms of the Goa Civil Courts Act, 1965 was Rs.25,000/-
and having regard to the fact that the value of the property
which according to the plaintiff, was agreed to be sold by the
defendants was Rs.40,000/-, learned Civil Judge, Junior
Division had no jurisdiction to entertain the suit. Learned
Counsel further submitted that since the trial Court had no
pecuniary jurisdiction to entertain the suit, the decree passed
by the trial Court was nullity and consequently, the decree
passed by the lower appellate Court is also nullity. Learned
Counsel further submitted that the defendants and more
particularly, defendants no.1 and 2 had no right to agree to
sell the plot to the plaintiff inasmuch as they were not the
owners of the suit plot. Learned Counsel, therefore,
submitted that the decrees passed by both the Courts below
are patently illegal and as such, are liable to be quashed and
set aside. In support of his submissions, Mr. Teles placed
reliance upon the following judgments :
“(i) Chiranjilal Shrilal Goenka Vs. Jasjit Singh and
others; (1993)2 SCC 507.
(ii) Chandrika Chunilal Shah Vs. Orbit Finances Pvt.
Ltd & Ors.; 2011(4) All MR 275.… 10 …
(iii) A. V. M. Sales Corporation Vs. Anuradha
Chemicals Private Limited; (2012)2 SCC 315.”
14. Per contra, Mr. Coelho Pereira, learned Senior
Counsel appearing for the respondent/plaintiff submitted that
the suit filed by the plaintiff was essentially the suit for
declaration and specific performance. Learned Counsel
further submitted that no doubt the suit was valued at
Rs.100/- although the plaintiff was bound to pay ad valorem
court fee on the consideration amount of Rs.40,000/-. Mr.
Coelho Pereira, learned Senior Counsel, therefore, submitted
that the plaintiff has filed an application seeking extension of
time to pay deficit court fee in terms of Section 149 of C.P.C.
which deserves to be allowed. Learned Senior Counsel
further submitted that the trial Court has not framed the
issue that the defendants are not the owners of the suit
property and as such the defendants cannot be compelled to
transfer the suit plot to the plaintiff and the said issue was
raised before the lower appellate Court which was dealt with
by lower appellate Court. As such, no interference is
warranted with the impugned judgment of lower appellate
Court. Learned Senior Counsel further submitted that having
regard to the pleadings in the plaint read as a whole, it is
evident that the suit is for declaration and for specific
performance, though appropriate court fees were not paid by
the plaintiff at the time of institution of the suit. Learned
Counsel further submitted that the pleadings in the plaint as
well as the evidence led by the plaintiff clearly disclose that
the plaintiff was all throughout ready and willing to perform
her part of the contract in terms of Section 16(c) of the
Specific Relief Act and, therefore, the plaintiff is entitled to
the relief of specific performance. Insofar as jurisdiction of
the trial Court is concerned, learned Senior Counsel
submitted that though at the time of institution of the suit in
the year 1998 the pecuniary jurisdiction of Civil Judge, Junior
Division was upto Rs.25,000/- in terms of Section 20(3) of Goa
Civil Courts Act, 1965, in terms of amendment carried out to
the Goa Civil Courts Act on 18/08/1998, the pecuniary
jurisdiction of Civil Judge, Junior Division was extended upto
Rs.1,00,000/- and as such, learned trial Court has jurisdiction
to pass impugned decree. As such, the said decree cannot be
said to be either illegal or without jurisdiction. Learned
Senior Counsel lastly submitted that there are concurrent
findings of fact recorded by both the Courts below and the
appellants are not entitled to succeed on any of the
substantial questions of law formulated at the time of… 12 …
admission of appeal. Learned Counsel further submitted that
the defendants at no point of time before the trial Court took
objection as to jurisdiction on the ground that the suit was
undervalued and such objection ought to have been raised at
the earliest before the trial Court in terms of Section 11 of
the Suit Valuation Act. In support of his submissions, Mr.
Coelho Pereira placed reliance upon the judgment of Punjab
and Haryana High Court in the case of Sat Paul and another
Vs. Jai Bhan Ananta Saini; AIR 1973 Punjab and Haryana 58.
15. I have carefully considered the rival submissions,
perused the record and the judgments relied upon.
16. Insofar as the first substantial question of law is
concerned, no doubt, the suit was valued as the suit for the
purpose of declaration and no court fees were paid in respect
of the relief of specific performance. However, upon
meaningful reading of the plaint and the evidence led by the
parties, it is evident that the suit filed by the plaintiff was not
only for declaration but also for specific performance though
the prayer clause is not couched in happy language.
Needless to mention that the plaintiff would not get anything
tangible by simply asking for relief of declaration in respect
of the receipt and obviously, therefore, the plaintiff was
interested in getting declaration as well as transfer of the suit
plot in her favour upon payment of balance consideration.
17. As stated above, on behalf of the plaintiff, an
application has been filed for payment of deficit court fee of
Rs.2,100/- which is taken on record. The application has
been opposed by Mr. Teles on the ground that the plaintiff
had not prayed for specific performance in respect of the suit
plot. I have already held that suit was not only for
declaration but also for specific performance. Therefore, the
plaintiff is justified in invoking Section 149 of C.P.C. which
permits payment of deficit court fees at any stage. Section
149 of C.P.C. provides that if the court fee prescribed for the
time being has not been paid, the Court in its discretion, at
any stage, may allow the person, by whom such fee is payable
to pay deficit court fee. In my view, it would be highly unjust
to non-suit the plaintiff solely on the ground that the plaintiff
did not pay the requisite court fee in respect of the suit for
specific performance. Therefore, it would be just and proper
to permit the plaintiff to pay deficit court fee. Therefore, I
deem it appropriate to permit the plaintiff to pay deficit court
fee of Rs.2,100/- before the trial Court.
18. Coming to second substantial question of law, no
doubt the plaintiff had valued the suit for the purpose of
court fees and jurisdiction at Rs.100/- as on the date of filing
of the suit i.e. on 31/01/1998. Firstly, the defendants in the
written statement did not take any objection regarding
pecuniary jurisdiction of the Court which was required to be
taken in terms of Section 11 of the Suit Valuation Act.
Moreover, as rightly submitted by Mr. Coelho Pereira, the
jurisdiction of Civil Judge, Junior Division which was upto
Rs.25,000/- as on the date of filing of the suit, was increased
to Rs.1 Lakh with effect from 18/08/1998 by virtue of
amendment carried out to Section 20(3) of the Goa Civil
Courts Act. As such, on the date of passing of the decree,
learned trial Court had very much jurisdiction to pass the
decree which was impugned before the lower appellate
Court. Therefore, in my view, the decree passed by the trial
Court cannot be said to be without jurisdiction and illegal
inasmuch as on the date of passing of the decree, learned
trial Court had very much jurisdiction to pass the decree.
19. Insofar as third substantial question of law is
concerned, in my view, as stated above, the suit though
styled for declaration and consequential relief, was
essentially a suit for declaration and specific performance
though the prayer clause was not properly worded.
Moreover, if the suit was simpliciter for declaration, there
was no question of trial Court granting the decree of
declaration in view of Section 34 of the Specific Relief Act
inasmuch as admittedly, the plaintiff was not put in
possession and as such even prayer (b) could not have been
granted by the trial Court on admitted facts. In addition, the
defendants were very much aware that the plaintiff was
claiming transfer of the suit plot by filing the suit and as
such, at no point of time took defence that the suit
simpliciter for declaration, was not maintainable. No doubt,
the plaintiff had sought permanent injunction in respect of
the suit plot, but such relief was available to the plaintiff only
upon transfer of the suit plot in her favour.
20. Coming to the aspect of compliance of Section 16(c) of
the Specific Relief Act, upon meaningful reading of the plaint
and the evidence led by the plaintiff, it is evident that the
plaintiff was all throughout ready and willing to perform her
part of the contract. She was ready to pay balance
consideration of Rs.30,000/- for conveying the suit plot in her
favour. Moreover, it is pertinent to note that no such issue
or point for determination was framed either by the trial
Court or by the lower appellate Court respectively.
Moreover, in paragraph 8 of the plaint, the plaintiff had
specifically mentioned that she was willing and ever ready to
perform her part to purchase the suit plot by paying balance
consideration of Rs.30,000/-. Therefore, in my view, the
plaintiff had complied with the mandatory provision of
Section 16(c) of the Specific Relief Act.
21. Coming to the submission made by Mr. Teles that
the defendants are not the owners of the suit plot, therefore,
no decree for specific performance can be passed against
them is concerned, as rightly pointed out by Mr. Coelho
Pereira,learned Counsel for the respondent/ plaintiff, no issue
has been framed in this regard by the trial Court but the
issue was raised by the appellants before the lower appellate
Court and the lower appellate Court dealt with this issue. In
the absence of specific pleadings the defendants were not
entitled to raise such issue for the first time before the
Appellate Court. That apart, there was agreement between
the original owners and developers in which right has been
given in favour of defendants no.1 and 2 to sell the plot
independently to respective buyers and purchasers.
Moreover, the evidence discloses that some of the remaining
plots were taken by the defendants pursuant to agreement of
development entered into with the owners. Therefore, in my
view, the question of non-suiting the plaintiff on the ground
that the defendants have no title to the suit property, does
not arise.
22. I shall now deal with the judgments cited by both
sides.
In the case of AVM Sales Corporation (supra), the
Apex Court held that the parties by consent cannot confer
jurisdiction on the Court which has no territorial or pecuniary
jurisdiction to entertain the lis. There can be no dispute with
this proposition of law but as already held, the defendants
had not taken specific objection regarding jurisdiction in the
written statements filed and in any case though the decree
was passed by learned trial Court in the year 2001, by virtue
of amendment carried out to Civil Courts Act, learned trial
Court had jurisdiction to entertain the suit and pass the
impugned decree. Therefore, in my view, the said judgment
does not advance the case of the defendants.
In the case of Chiranjilal Goenka (supra), the
Apex Court has held that the decree passed without
jurisdiction is nullity and nonest, and its validity can be
challenged even at the stage of execution. For the very same
reason, this judgment does not help the case of the
defendants.
In the case of Chandrika Shah (supra), learned
Single Judge of this Court has held that upon amendment
being granted to the plaint seeking cancellation of
agreement, the plaintiff was required to value the suit in
terms of Section 6(iv)(ha) of Bombay Court Fees Act. I have
already permitted the plaintiff to pay additional court fee in
terms of Section 149 of C.P.C. and as such, this judgment
also does not advance the case of the defendants.
In the case of Sat Paul (supra) relied upon on
behalf of the plaintiff placing reliance upon Section 11 of
Suits Valuation Act, learned Single Judge of Punjab and
Haryana High Court held that objection to jurisdiction of the
Court to entertain the appeal based on undervaluation would
succeed only when it was shown that undervaluation had
prejudicially affected disposal of the appeal on merits,
although it was further held that deficiency in the Court fee
on the memorandum of appeal before the lower appellate
Court can be allowed to be made good even at the stage of
Second Appeal.
23. In view of the above, I do not find any merit in
Second Appeal and all the substantial questions of law
mentioned in paragraph no.11 hereinabove, are answered in
favour of the respondent/ plaintiff. Consequently, Second
Appeal stands dismissed with costs.
24. The respondent/ plaintiff is permitted to pay
deficit court fee of Rs.2,100/- in the trial Court, within a
period of eight weeks from today.
25. The respondent / plaintiff is directed to deposit
balance consideration of Rs.30,000/- in the trial Court within
a period of eight weeks from today.
26. Record and Proceedings be sent to the trial Court
in order to enable the plaintiff to pay the deficit court fees.
A. P. LAVANDE, J.
SMA
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