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PETITIONER: KIRAN SINGH AND OTHERS

       Vs.

RESPONDENT: CHAMAN PASWAN AND OTHERS.

DATE OF JUDGMENT: 14/04/1954

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA MUKHERJEA, B.K. BOSE, VIVIAN HASAN, GHULAM

CITATION:  1954 AIR  340            1955 SCR  117  CITATOR INFO :  R          1966 SC 634  (7)  F          1977 SC1201  (3)  RF         1981 SC 416  (34)  R          1988 SC1531  (185)  F          1991 SC 884  (14)  RF         1991 SC1094  (3,11)  R          1991 SC1494  (8)

ACT:     Suits  Valuation  Act  (VII  of  1887),  s.  1   -Appeal undervalued    and   presented  to  a  Court   of   inferior jurisdiction-Whether a decree passed by it on the merits  is a nullity-Whether mere change of form or error in a decision on the merits, prejudice within the meaning of section 11 of the  Suits  Valuation  Act- Whether a party  who  invokes  a jurisdiction  of  a Court can complain of prejudice  on  the ground of over-valuation or under-valuation.

HEADNOTE:   The  policy underlying section 11 of the  Suits  Valuation Act,as  also  of  sections 21 and 99 of the  Code  of  Civil Procedure, is that when a case has been tried by a Court  on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless a failure of justice  has  resulted.  The policy of the  Legislature  has been   to   treat  objections  as  to   jurisdiction,   both territorial  and  pecuniary, as technical and  not  open  to consideration  by an appellate Court, unless there has  been prejudice on the merits. Mere  change of form is not prejudice within the meaning  of section  11 of the Suits Valuation Act; nor a mere error  in the  decision  on the merits of the case.  It  must  be  one directly attributable to over-valuation or under-valuation. Whether  there has been prejudice or not is a matter  to  be determined  on  the facts of each  case.   The  jurisdiction under  section 11 is an equitable one to be exercised,  when there has been an erroneous assumption of jurisdiction by  a Subordinate  Court as a result of over-valuation  or  under- valuation  and a consequential -failure of justice.   It  is neither possible, nor desirable to define such  jurisdiction

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closely or confine it within stated bounds. 118 A party who has resorted to a forum of his own choice on his own  valuation  cannot himself be heard to complain  of  any prejudice. Ramdeo Singh v. Baj Narain (I.L.R. 27 Patna 109); Bajlakshmi Dasee  v.  Katyayani Dasee (I.L.R. 38  Cal.  639);  Shidappa Venkatrao v. Rachappa Subrao (I L.R. 36 Bom. 628) ; Rachappa Subrao  Jadhav v. Shidappa Venkatrao Jadhav (46 I.A.  24)  ; Kelu Achan v. Cheriya Parvathi Nethiar (I.L.R. 46 Mad.  631) Mool Chand v. Bam Kishan (I.L.R. 55 All. 315) referred to.

JUDGMENT:    CIVIL  APPELLATE  JURISDICTION: Civil Appeal  No.  14  of 1953. Appeal by special leave granted by the Supreme Court, by its Order  dated the 29th October, 1951, from the  Judgment  and Decree  dated  the  19th July, 1950, of the  High  Court  of Judicature  at  Patna  (Sinha and Rai JJ.)  in  appeal  from Appellate  Decree  No. 1152 of 1946 from  the  Judgment  and Decree dated the 24th day of May, 1946, of the Court of  the 1st Additional District Judge in S. J. Title Appeal No. I of 1946  arising out of the Judgment and Decree dated the  27th November,  1945, of the First Court of Subordinate Judge  at Monghyr in Title Suit No. 34 of 1944. S.C.  Issacs (Ganeshwar Prasad and R. C. Prasad,  with  him) for  the  appellants.  B.K.  Saran  and  M.  M.  Sinha   for respondents Nos. 1-9. 1954.  April 14.  The Judgment of the Court was delivered by VENKATARAMA  AYYAR J.-This appeal raises a question  on  the construction of section 11 of the Suits Valuation Act.   The appellants  instituted  the suit out of  which  this  appeal arises, in the Court of the Subordinate Judge, Monghyr,  for recovery of possession of 12 acres 51 cents of land situated in mauza Bardih, of which defendants Nos. 12 and 13, forming the  second party, are the proprietors.  The allegations  in the plaint are that on 12th April, 1943, the plaintiffs were admitted by the second party as occupancy tenants on payment of  a sum of Rs. 1,950 as salami and put into possession  of the. lands, and that thereafter, the first party  consisting of  defendants Nos. 1 to 11 trespassed on them  and  carried away the crops.  The, suit was 119 accordingly  laid for ejecting defendants Nos.  I to II  and for mesne profits, past and future, and it was valued at Rs. 2,950,  made up of Rs. 1,950 being the value of  the  relief for  possession and Rs. 1,000, being the past mesne  profits claimed. Defendants  Nos.- I to II contested the suit.  They  pleaded that they had been in possession of the lands as tenants  on batai  system, sharing the produce with the landlord.,  from fasli  1336  and  had  acquired  occupancy  rights  in   the tenements, that the second party had no right to settle them on  the plaintiffs, and that the latter acquired’ no  rights under  the  settlement dated 12th April,  1943.   Defendants Nos. 12 and 13 remained ex-parte. The  Subordinate  Judge held, relying  on  certain  receipts marked as Exhibits A to A-114 which were in the  handwriting of  the patwaris of the second party and which  ranged  over the period from fasli 1336 to 1347, that defendants Nos.   I to  II  had  been  in  possession  for  over  12  years   as cultivating  tenants and had acquired occupancy rights,  and that  the settlement dated 12th April,’ 1943,  conferred  no

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rights  on  the plaintiffs.  He  accordingly  dismissed  the suit.   The  plaintiffs  preferred an  appeal  against  this decision  to the Court of the District Judge.  Monghyr,  who agreed with the trial Court that the receipts, Exhibits A to A-114  were genuine, and that defendants Nos.  I to  11  had acquired  occupancy  rights, and accordingly  dismissed  the appeal. The  plaintiffs took up the matter in second appeal  to  the High Court, Patna, S.A. No. 1152 of 1946, and there, for the first time; an objection was taken by the Stamp Reporter  to the  valuation  in the plaint and after enquiry,  the  Court determined  that the correct valuation of the suit  was  Rs. 9,980.   The  plaintiffs  paid  the  additional   Court-fees required of them, and then raised the contention that on the revised  valuation,  the  appeal  from  the  decree  of  the Subordinater  Judge would lie not to the District Court  but to  the High Court, and that accordingly S. A. No.  1152  of 1946  should  be  heard  as a  first  appeal,  ignoring  the judgment  of  the District Court.  The learned  Judges  held following the decision 120 of a Full -Bench of that Court in Ramdeo Singh v. Raj Narain (1),  that the appeal to the District Court  was  competent, and  that  its  decision  could  be  reversed  only  if  the appellants  could  establish prejudice on  the  merits,  and holding  that  on a consideration of the  evidence  no  such prejudice had been shown, they dismissed the second  appeal. The matter now comes before us on special leave. It will be noticed that the proper Court to try the  present action would be the Subordinate Court, Monghyr, whether  the valuation of the suit was Rs. 2,950 as given in the  plaint, or  Rs. 9,880 as determined by the High Court; but  it  will make a difference in the forum to which the appeal from  its judgment  would lie, whether the one valuation or the  other is  to  be accepted as the deciding factor.  On  the  plaint valuation,  the appeal would lie to the District  Court;  on the  valuation as determined by the High Court, it  is  that Court that would be competent to entertain the appeal.   The contention of the appellants is that as on the valuation  of the  suit as ultimately determined, the District  Court  was not  competent  to  entertain the  appeal,  the  decree  and judgment passed by that Court must be treated as a  nullity, that  the High Court should have accordingly heard S.A.  No. 1152  of  1946 not as a second appeal with  its  limitations under section 100 of the Civil Procedure Code but as a first appeal  against the judgment and decree of  the  Subordinate Judge,  Monghyr, and that the appellants were entitled to  a full  heating as well on questions of fact as of  law.   And alternatively,  it is contended that even if the decree  and judgment  of  the  District Court on appeal are  not  to  be treated  as  a nullity and the matter is to  be  dealt  with under section 11 of the Suits Valuation Act, the  appellants had suffered "Prejudice" within the meaning of that section, in that their appeal against the judgment of the Subordinate Judge  was  heard not by the High Court but by  a  Court  of inferior jurisdiction, viz., the District Court of  Monghyr, and  that its decree was therefore liable to be  set  aside, and  the appeal heard by the High Court on the merits, as  a first appeal. (1)  I.L.R. 27 Patna 109; A.I.R. 1949 Patna 278, 121 The  answer  to these contentions must depend  on  what  the position  in  law is when a Court entertains a  suit  or  an appeal  over  which  it has no jurisdiction,  and  what  the effect  of section II of the Suits Valuation Act is on  that

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position.   It is a fundamental principle  well  established that  a decree passed by a Court without jurisdiction  is  a nullity,  and that its invalidity could be set  up  whenever and  wherever  it is sought to be enforced or  relied  upon, even  at  the  stage of execution  and  even  in  collateral proceedings.   A  defect  of  jurisdiction,  whether  it  is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very  authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.  If the question now under consideration fell to be’ determined only on the application of general principles governing the matter, there can be  no doubt  that  the  District Court of Monghyr  was  coram  non judice, and that its judgment and decree would be nullities. The  question  is what is the effect of section  11  of  the Suits Valuation Act on this position. Section  11 enacts that notwithstanding anything in  section 578  of  the Code of Civil Procedure, an  objection  that  a Court  which had ’no jurisdiction over a suit or appeal  had exercised it by reason of over-valuation or under-valuation, should not be entertained by an appellate Court., except  as provided in the section.  Then follow provisions as to  when the objections could be entertained, and how they are to  be dealt  with.   The drafting of the section has  come  in-and deservedlyfor  considerable criticism; but amidst much  that is obscure and confused, there is one principle which stands out clear and conspicuous.  It 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 but for the section, null and  void,  and that an objection to jurisdiction  based  on over-valuation or undervaluation should be dealt with  under that  section and not otherwise.  The reference  to  section 578,  now  section 99, of the Civil Procedure Code,  in  the opening words of the section is significant.  That  section, while  providing that no decree shall be reversed or  varied in  16 122 appeal on account of the defects mentioned therein when they do  not  affect  the merits of the case,  excepts  from  its operation  defects  of jurisdiction.  Section  99  therefore gives  no protection to decrees passed on merits,  when  the Courts which passed them lacked jurisdiction as a result  of over-valuation  or  undervaluation.  It is with  a  view  to avoid this result that section 11 was enacted.  It  provides that  objections  to the jurisdiction of a  Court  based  on over-valuation  or under-valuation shall Dot be  entertained by an appellate Court except in the manner and to the extent mentioned in the section.  It is a self-contained  provision complete  in itself, and no objection to jurisdiction  based on over-valuation or under-valuation can be raised otherwise than  in accordance with it.  With reference  to  objections relating  to  territorial jurisdiction, section  21  of  the Civil  Procedure Code enacts that no objection to the  place of  suing  should be allowed by an appellate  or  revisional Court, unless there was a consequent failure of justice.  It is  the same principle that has been adopted in section 1  1 of  the  Suits  Valuation Act with  reference  to  pecuniary jurisdiction.   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

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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. On  behalf of the appellants Rajlakshmi Dasee  V.  Katyayani Dasee(1) and Shidappa Venkatrao v. Rachappa Subrao(2)  which was affirmed by the Privy Council in Rachappa Subrao  Jadhav v. Shidappa Venkatrao Jadhav(3) were relied on as supporting the contention (1)  I.L.R. 38 Cal. 639. (2)  I.L.R. 36 Bom, 628. (3) 46 I.A. 24. 123 that  if the appellate Court would have had no  jurisdiction to  entertain  the  appeal if the suit  had  been  correctly valued, a decree passed by it must be treated as a  nullity. In  Rajlakshmi Dasee v. Katyayani Dasee(1), the  facts  were that  one Katyayani Dasee instituted a suit to  recover  the estate  of  her  husband  Jogendra  in  the  Court  of   the Subordinate Judge, Alipore, valuing the claim at Rs.  2,100, whereas  the  estate was worth more than a lakh  of  rupees. The suit was decreed, and the defendants preferred an appeal to  the  District  Court,  which was  the  proper  Court  to entertain  the appeal on the plaint valuation.   There,  the parties  compromised  the matter, and a consent  decree  was passed, recognising the title of the defendants to  portions of  the  estate.  Then, Rajlakshmi Dasee,  the  daughter  of Jogendra,  filed a suit for a declaration that  the  consent decree  to which her mother was a party was not  binding  on the reversioners.  One of the grounds urged by her was  that the suit of Katyayani was deliberately under-valued, that if it  had  been correctly valued, it was the High  Court  that would have had the ,competence to entertain the appeal,  and that  the con,sent decree passed by the District  Judge  was accordingly  a nullity.  In agreeing with  this  contention, the  High  Court observed that a decree passed  by  a  Court which  had  no  jurisdiction was a nullity,  and  that  even consent  of the partes could not cure the defect.   In  that case,  the  question was raised by a person who  was  not  a party to the action and in a collateral proceeding, and  the Court observed: " We are not now called upon to consider what the effect  of such  lack of, jurisdiction would be upon the decree, in  so far  as the parties thereto were concerned.  It is  manifest that so fir as a stranger to the decree is concerned, who is interested  in the property affected by the decree,  he  can obviously  ask  for  a  declaration that  the  decree  is  a nullity,  because made by a Court which had no  jurisdiction over the subject-matter of the litigation" On  the facts, the question of the effect of section  11  of the Suits Valuation Act did not arise for determination, and was not considered. (1)  I.L.R. 38 Cal. 639. 124 In  Shidappa Venkatrao v. Rachappa Subrao(1) the  plaintiffs instituted  a  suit in the Court of the  Subordinate  Judge, First  Class, for a declaration that he was the adopted  son of  one  Venkatrao  and for an  injunction  restraining  the defendant  from interfering with his possession of a  house. The  plaint  valued  the  declaration at  Rs.  130  and  the injunction at Rs. 5, and the suit was valued for purposes of

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pleader’s  fee  at  Rs. 69,016-9-0 being the  value  of  the estate.  The suit was decreed by the Subordinate Judge,  and against his decree the defendant preferred an appeal to  the District  Court, which allowed the appeal and dismissed  the suit.  The plaintiff took up the matter in second appeal  to the  High Court, and contended that on the valuation in  the plaint  the  appeal against the decree  of  the  Subordinate Judge  lay  to the High Court, and that the  appeal  to  the District Court was incompetent.  This contention was upheld, and the decree of the District Judge was set aside.  It will be  seen  that  the  point in dispute  was  whether  on  the allegations  in  the  plaint  the  value  for  purposes   of jurisdiction was Rs. 135 or Rs. 69,016-9-0, and the decision was  that it was the latter.  No question of  over-valuation or  under-valuation arose,’ and no decision on the scope  of section 11 of the Suits Valuation Act was given. As  a  result  of  its decision,  the  High  Court  came  to entertain  the  matter as a first appeal  and  affirmed  the decree of the Subordinate Judge.  The defendant then took up the matter in appeal to the Privy Council in Rachappa Subrao Jadhav  v.  Shidappa  Venkatrao Jadhav(2),  and  there,  his contention was that, in fact, on its true valuation the suit was  triable  by the Court of the Subordinate Judge  of  the Second  Class,  and that the District Court was  the  proper Court to entertain the appeal.  The Privy Council held  that this   objection   which  was  "  the  most   technical   of technicalities  "  was  not  taken in  the  Court  of  first instance,  and  that the Court would not be justified  "  in assisting  an objection of that type," and that it was  also untenable.  Before concluding, it observed: " The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his (1) I.L.R. 36 Bom. 628. (2) 46 I.A. 24. 125 opponent  but  to  secure revenue for  the  benefit  of  the State.......The defendant in this suit seeks to utilise the provisions of the Act not to safeguard the interests of  the State,but  to obstruct, the plaintiff ; he does not  contend that  the  Court wrongly decided to’ the  detriment  of  the revenue   but   that  it  dealt  with   the   case   without jurisdiction.  In the circumstances this plea, advanced  for the first time at the hearing of the appeal in the  District Court, is misconceived, and was rightly rejected by the High Court." Far  from supporting the contention of the  appellants  that the decree passed in appeal by the District Court of Monghyr should  be  regarded as a nullity, these  observations  show that  an objection of the kind now put forward being  highly technical  in  character should not be  entertained  if  not raised in the Court of first instance.  We are therefore  of opinion that the decree and judgment of the District  Court, Monghyr, cannot be regarded as a nullity. It  is  next  contended that even  treating  the  matter  as governed by section 11 of the Suits Valuation Act, there was prejudice to the appellants, in that by reason of the under- valuation,  their  appeal was heard by a Court  of  inferior jurisdiction,  while they were entitled to a bearing by  the High  Court on the facts.  It was argued that the  right  of appeal was a valuable one, and that deprivation of the right of the appellants to appeal to the High Court on facts  must therefore  be held, without more, to  constitute  prejudice. 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

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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 under-valuation they obtained right to two  appeals, one  to  the District Court and another to the  High  Court. The complaint of the 126 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 1  1 of the Suits Valuation Act. The  question, therefore, is, can a decree passed on  appeal by  a Court which had jurisdiction to entertain it  only  by reason of under-valuation 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 (1), Mool Chand v. Ram Kishan  (2) and  Ramdeo Singh y. Baj Narain (3).  In our  judgment,  the opinion expressed in these decisions is correct.  Indeed, it is  impossible on the language of the section to come  to  a different conclusion.  If the fact of an appeal being  heard by  a Subordinate Court or District Court where  the  appeal would  have lain to the High Court if the correct  valuation had  been  given is itself a matter of prejudice,  then  the decree passed by the Subordinate Court or the District Court must, without more, be liable to be set aside, and the words "unless  the  overvaluation or under-valuation  thereof  has prejudicially affected the disposal of the suit or appeal on its  merits"  would  become  wholly  useless.   These  words clearly  show  that  the decrees passed in  such  cases  are liable  to be interfered with in an appellate Court, not  in all  cases and as a matter of course, but only if  prejudice such  as  is  mentioned in the  section  results.   And  the prejudice  envisaged  by  that  section  therefore  must  be something  other than the appeal being heard in a  different forum.   A contrary conclusion will lead to  the  surprising result  that  the  section was enacted with  the  object  of curing (1)  I.L.R. 46 Mad. 631. (2)  I.L.R. 55 All. 315. (3)  I.L.R. 27 Patna 109; A.I.R. 1949 Patna 278. 127 defects of jurisdiction arising by reason of over-valuation, or  under-valuation but that, in fact, this object  has  not been achieved.  We are therefore clearly of opinion that the prejudice contemplated by the section is something different from  the  fact of the appeal having been heard in  a  forum which would not-have been competent to hear it on a  correct valuation of the suit as ultimately determined. It  is next argued that in the view that the decree  of  the lower appellate Court is liable to be reversed only on proof of prejudice on the merits, the second appellate Court must, for the purpose of ascertaining whether there was prejudice, hear the appeal fully on the facts, and that, in effect,  it

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should  be Heard as a first appeal.  Reliance is  placed  in support of this contention on the observations of two of the learned  Judges in Ramdeo Singh v. Rai Narain  (1).   There, Sinha J. observed that though the second appeal could not be treated as a first appeal, prejudice could be established by going  into the merits of the decision both on questions  of fact and of law,, and that that could be done under  section 103  of the Civil Procedure Code.  Meredith J.  agreed  that for  determining whether there was prejudice or  not,  there must  be  an  enquiry  on the merits  of  the  decisions  on questions  of fact but he was of opinion that that could  be done  under section I I of the Suits Valuation  Act  itself. Das  J.,  however, declined to express any opinion  on  this point, as it did not arise at that stage.  The complaint  of the  appellants  is that the learned Judges  who  heard  the second appeal, though they purported to follow the  decision in  Ramdeo Singh v. A. Narain (1) did not, in fact,  do  so, and that there was no consideration of the evidence  bearing on  the  questions  of fact on which  the  parties  were  in dispute. That  brings  us  to the question as to  what  is  meant  by prejudice"  in section II of the Suits Valuation Act.   Does it include errors in findings on questions of fact in  issue between the parties ? If it does, then it will be obligatory on  the  Court  hearing the second  appeal  to  examine  the evidence in full and decide whether the (1)  I.L.R. 27 Patna tog; A.I. R, 1949 Patna 278. 128 conclusions reached by the lower appellate Court are  right. If  it agrees with those findings, then it will  affirm  the judgment;  if it does not, it will reverse it.   That  means that the Court of second appeal is virtually in the position of  a Court of first appeal.  The language of section 11  of the Suits Valuation Act is plainly against such a view.   It provides  that  overvaluation or under-valuation  must  have prejudicially  affected  the  disposal of the  case  on  the merits.   The  prejudice  on the  merits  must  be  directly attributable  to  over-valuation or under-valuation  and  an error in a finding of fact reached on a consideration of the evidence  cannot  possibly be said to have  been  caused  by over-valution  or  under-valuation.   Mere  errors  in   the conclusions on the points for determination would  therefore be  clearly  precluded by the language of the  section.   It must  further  be noted that there is no  provision  in  the Civil  Procedure  Code, which authorises a Court  of  second appeal  to  go  into questions of fact on  which  the  lower appellate  Court has recorded findings and to reverse  them. Section 103 was relied on in Ramdeo Singh v. Raj Narain  (1) as  conferring such a power.  But that section applies  only when  the  lower  appellate Court has  failed  to  record  a finding on any issue, or when there had been  irregularities or  defects  such  as fall under section 100  of  the  Civil Procedure  Code.   If these conditions exist,  the  judgment under  appeal is liable to be set aside in the  exercise  of the normal powers of a Court of second appeal without resort to  section 11 of the Suits Valuation Act.  If they  do  not exist,  there  is no other power under the  Civil  Procedure Code  authorising  the Court of second appeal to  set  aside findings  of fact and to re-hear the appeal itself on  those questions.  We must accordingly hold that an appellate Court has no power under section 1 1 of the Suits Valuation Act to consider whether ’the findings of fact recorded by the lower appellate  Court  are  correct,  and  that  error  in  those findings  cannot be held to be prejudice within the  meaning of that section.

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So  far, the definition of "prejudice" has been negative  in terms-that it cannot be mere change of forum (1)  I.L.R. 27 Patna 109. 129 Dr  mere error in the decision on the merits.  What then  is Positively prejudice for the purpose of section 11 ? That is a  question which has agitated Courts in India  ever.  since the enactment of the section.  It has been suggested that if there  was no proper hearing of the suit or appeal and  that had  resulted in injustice, that would be  prejudice  within section 11 of the Suits Valuation Act.  Another instance  of prejudice  is when a suit which ought to have been filed  as an original suit -is filed as a result of under-valuation on the small cause side. - The procedure for trial of suits  in the  Small Cause Court is summary; there are  no  provisions for  discovery  or inspection; evidence is not  recorded  in extenso,  and there is no right of appeal against its  deci- sion.  The defendant thus loses the benefit of an  elaborate procedure and a right of appeal which he would have had,  if the  suit  had been filed on the original side.  It  can  be said  in  such a case that the disposal of the suit  by  the Court of Small Causes has prejudicially affected the  merits of the case.  No purpose, however, is. served by  attempting to  enumerate exhaustively all possible cases  of  prejudice which  might  come under section II of the  Suits  Valuation Act.  The jurisdiction that is conferred on appellate Courts under that section is an equitable one, to be exercised when there has been an erroneous assumption of jurisdiction by  a Subordinate  Court as a result of over-valuation  or  under- valuation  and  a consequential failure of justice.   It  is neither  possible  nor  even  desirable  to  define  such  a risdiction. closely, or confine it within stated bounds.  Pt can  only be predicated of it that it is in the nature of  a revisional jurisdiction to be exercised with caution and for the ends of justice, whenever the facts and ,situations call for  it.   Whether  there  has been  prejudice  or  not  is, accordingly, a matter to be determined on the facts of  each case. We have now to see whether the appellants have suffered  any prejudice by reason of the under-valuation.  They were.  the plaintiffs  in  the  action.  They valued the  suit  at  Rs. 2,950.    The   defendants  raised  no  objection   to   the jurisdiction of the Court at any time.  When the  plaintiffs lost the suit after an elaborate 17 130 trial, it is they who appealed to the District Court as they were  bound  to,  on  their  valuation.   Even  there,   the defendants  took  no objection to the  jurisdiction  of  the District Court to hear the appeal.  When the deci sion  went on  the merits against the plaintiffs, they preferred S.  A. No.  1152  of 1946 to the High Court of Patna,  and  if  the Stamp Reporter had not raised the objection to the valuation and  to  the Court-fee paid, the plaintiffs would  not  have challenged  the jurisdiction of the District Court  to  hear the appeal.  It would be an unfortunate state of the law, if the plaintiffs who initiated proceedings in a Court of their own  choice could subsequently turn round and  question  its jurisdiction  on the ground of an error in  valuation  which was  their own.  If the law were that the decree of a  Court which would have had no jurisdiction over the suit or appeal but  for  the  over-valuation or  undervaluation  should  be treated  as  a nullity, then of course, they  would  not  be estopped  from setting up want of jurisdiction in the  Court by  the fact of their having themselves invoked  it.   That,

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however, is not the position under section 1 1 of the  Suits Valuation Act.  Why then should the plaintiffs be allowed to resile from the position taken up by them to. the  prejudice of their opponents, who had acquiesced therein ? There  is considerable authority in the Indian  Courts  that clausts  (a) and (b) of section I 1 of the  Suits  Valuation Act should be read conjunctively, notwithstanding the use of the  word "or." If that is the correct  interpretation,  the plaintiffs  would  be precluded from raising  the  objection about  jurisdiction in an appellate Court.  But even if  the two  provisions are to be construed disjunctively,  and  the parties held entitled under section 1 1 (1) (b) to raise the objection  for the first time in the appellate  Court,  even then,  the recuirement as to prejudice has to be  satisfied, and the party who has resorted to a forum of his own  choice on his own valuation cannot himself be heard to complain  of any  prejudice.  Prejudice can be a ground for  relief  only when  it is due to the action of another party and not  when it results from one’s own act.  Courts cannot recognise that as prejudice which flows from the action of the 131 very party who complains about it.  Even apart from this, we are satisfied that no prejudice was caused to the appellants by  their  appeal having been heard by the  District  Court. There  was  a fair and full hearing of the  appeal  by  that Court;’   it   gave  its  decision  on  the  merits   on   a consideration  of  the entire evidence in the case,  and  no injustice  is shown to have resulted in its disposal of  the matter.  The decision of the learned Judges that there  were no  grounds for interference under section 11 of  the  Suits Valuation Act is correct. In the result, the appeal fails and is dismissed with costs.                                Appeal dismissed.