Sinha, J.On 30th April 1948, the learned Chief Justice and Das J. passed the following order making the reference to the Pull Bench:

We consider that the derisions referred to in the order of Sinha and Mahabir Prasad JJ. in Fiist Appeal No. 64 of 1948 require reconsideration. The matter will be laid before a Full Bench on Monday.

2. The question referred to the Full Bench is:

When an appeal heard by the Court below is found to be one which that Court had no jurisdiction to hear, and a second appeal is preferred to the Honble Court, is it permissible to treat that appeal as a first appeal and to credit the appellant with the court-fees paid on the memorandum of appeal in the Court below

3. It is necessary to state certain facts out of whioh this appeal arises in order to bring out the circumstances leading up to this reference. The plaintiff-respondent instituted a suit in the Court of the Subordinate Judge at Patna (1) for a declaration that the sale-deed admittedly executed by him in favour of the contesting defendants-first-party was false and fraudulent, and, therefore void and inoperative, (2) for confirmation, or, in the alternative, recovery of possession, and (3) for an injunction, restraining the defendants from taking delivery of the sale-deed from the registration office. The plaintiff alleged that there was an agreement between him and the contesting defendants for the sale of small property for, Rs. 300 but instead the defendants fraudulently got the plaintiff to put his signature to a document which was ultimately registered in which false entries were made as regards the consideration money and the properties to be sold. The sale-deed contained the false recital that all the properties belonging to the plaintiff, namely, some milkiat interests as also more than nine acres of kasht lands and his residential house, had been sold to the defendants for the sum of four thousand rupees. He also alleged that the details and the manner of the receipt of consideration money as given in the sale-deed were also false and fraudulent. The plaintiff further alleged in para. 11 (2) of the plaint that

according to the prevailing price the fair price of the properties in Schedule 2 of the plaint--the properties a specified is the false sale-deed in dispute--would not be less than Rs. 15,000 but the defendants have mentioned the price thereof as Rs, 4000 to the sale-deed," But the plaintiff valued his plaint for the purposes of jurisdiction and court-fees at Rs. 4000 only on the basis that Rs. 4000 was, on the face of the document impugned, the value of the pro-parties in suit.

4. The defendants contested the suit on merits with which we are not at present concerned, but also alleged that the property was really not worth fifteen thousand rupees, as alleged by the plaintiff. It must be noted that the defendants did not challenge the valuation of the suit but added that, on his own showing, the plaintiff should have paid court-fee on fifteen thousand rupees. No issue was raised as regards the valuation of the suit. But issue 3 was in these terms: "Is the court-fee paid insufficient"

5. The trial Court decreed the suit, holding that the sale-deed executed by the plaintiff in favour of the defendants was null and void, and that the plaintiff was entitled to confirmation of possession. On issue 3 the finding of the Court is as follows:

Issue 3-- Not pressed. Plaintiff has paid court-fee on the sum of Rs. 4000 for which the sale-deed was executed. Defendants have asserted in the written statement that the properties are not worth Rs. 15,000 as is the plaintiffs case but are only worth Rs. 4000 and as if court-fee has been paid on Rs. 4000 it cannot but be sufficient according to the defendants case. There may be some difficulty by reason of the plaintiff maintaining that the properties are worth Rs. 15,000 but as defendants never pressed the matter before hearing and did not press it and the declaration sought in about a sale-deed executed for Rs. 4000 the court-fee paid on this sum may be said to be sufficient.

From this decision, the defendants went up in appeal to the District Judge of Patna. The memorandum of appeal was also valued at Rs. 4000 and court-fee paid on that valuation. I have gone through the memorandum of appeal to the lower appellate Court. It contains 35 grounds, but there is absolutely no reference to any question of under valuation of the suit or non-payment of court-fees on a proper valuation. The judgment of the lower appellate Court also shows that the only point raised for determination by that Court was as regards the merits of the decision of the trial Court. On a consideration of the merits of the case, the lower appellate Court came to the same conclusion as the Court of first instance, and dismissed the appeal.

6. The defendants have preferred this second appeal from the concurrent decisions of the Courts below. In this Court also they filed the second appeal valuing the memorandum of appeal at Rs. 4000. In this also, no question of jurisdiction or of under-valuation of the suit has been raised. The learned Stamp Reporter, on examination of the lower Court records, reported to the Taxing Officer of this Court that the proper valuation of the suit and appeal to the lower appellate Court, and consequently of the second appeal to this Court, was in each case Rs. 15,000 and that, on that basis, the plaint was insufficiently stamped by Rs. 750, which must be made good by the plaintiffs, and the same amount was payable by the defendants-appellants on the memorandum of appeal to the lower appellate Court and on that to this Court in second appeal. The learned Registrar (now Ramaswami J.) accepted the stamp report, and called upon the defendants-appellants to make good the deficit of Rs. 750 on the memorandum of appeal. As regards the deficit on the plaint and on the memorandum of appeal to the lower appellate Court, he left the matter to be determined by the Bench after the admission of the appeal. The appellants moved before a Bench of this Court which made the reference, as aforesaid, to the Pull Bench that, on the valuation as found by the learned Registrar as the Taxing Officer of the Court, the memorandum of appeal to this Court should be treated as one in a first appeal, and the court-fee paid by the appellants in the lower appellate Court should be deducted from the amount payable on the memorandum of appeal to this Court treated as a first appeal. The appellants relied upon the precedents of this Court which will be presently dealt with. It is the soundness of those precedents which has to be examined by us in this case.

7. The earliest reported decision of this Court relevant to the present enquiry is that of Coutts and Adami JJ., in Mohni Mohan Misser v. Gour Chandra Rai AIR 1921 Pat. 32 . In that case the plaintiff had sued for a declaration, and valued the suit at Rs. 1400. In the written statement, the defendants contested the suit on the ground, amongst others, that the suit was undervalued. No issue was framed as regards under valuation of the suit. In the Court of the District Judge on appeal, the question of valuation was raised by the defendants, but that question was not properly determined. On second appeal to the High Court, the question of valuation and jurisdiction was raised, and the issue of under valuation was remitted to the lower Court. It was then found that the proper value of the property in question was over sixteen thousand rupees. The Division Bench held that the appeal to the District Judge was incompetent and his order without jurisdiction, and that the case was not covered by the provisions of Section 11, Suits Valuation Act. It was held by the Court that, in a suit for a declaration, the value of the suit for the purpose of jurisdiction must be the value of the property in respect of which the declaration was sought. In that case also the suit had been tried by a Subordinate Judge whose pecuniary jurisdiction was unlimited. Hence, the question of his jurisdiction could not be raised. To the respondents arguments that there was no prejudice to the appellant in that case within the meaning of Section 11, Suits Valuation Act, their Lordships answer was in these terms:

Nor can it be said that the appellant is not prejudiced inasmuch as if the suit had been properly valued there would have been an appeal to the High Court in the first instance. The High Court could have gone into the facts of the case and the appellant would not have been confined to urging points of law. The case, therefore, does not come u/s 11, Suits Valuation Act, and the decision of the learned District Judge being without jurisdiction the decree passed by him is void

In the case as reported it does not appear that the memorandum of appeal to this Court in second appeal was treated as one in a first appeal. Nor does it appear as to what the order of the Court was in the matter of court-fees. The order of the Court was that the memorandum of appeal presented in the Court of the District Judge will be returned to the appellant. As to what happened thereafter does not appear.

8. The next reported decision of this Court is to be found in the case of Mahanth Rukmin Das v. Deva Singh AIR 1926 Pat. 351 . In that case, the plaint was valued at Rs. 2550 for the purposes of jurisdiction. The defendants contended that the suit was under valued, and the court-fee paid was insufficient. An issue was raised in the Court of first instance on that plea but was not pressed at the trial, and was, therefore, decided in favour of the plaintiff. On appeal to the District Judge by the defendants, no objection was raised as to his jurisdiction. Nor did the defendants raise the question of under valuation of the suit. The appellate Court reversed the decision of the trial Court. On a second appeal by the plaintiff, it was held by the High Court that the valuation should have been eight thousand rupees. The plaintiff appellant made good the deficit court-fee on the memorandum of appeal to the High Court. At the hearing of the second appeal, it was successfully contended on behalf of the appellant that the judgment of the District Judge was void, as he was incompetent to render it and that the under valuation had prejudicially-affected the disposal of the appeal on merit within the meaning of Section 11(1)(b), Suits Valuation Act. The High Court, accepting this contention, treated the appeal as a first appeal, though the appellant in the High Court was the respondent in the Court of the District Judge. It would appear further that in this case the defendants, who were the appellants in the lower-appellate Court, were made to pay the deficit, court-fee on the memorandum of appeal to the lower appellate Court on the revised valuation as made by the High Court. Hence, this case also does not entirely support the defendants, appellants contention, on the question of court-fees. On the question of the applicability of Section 11, Suits Valuation Act, their Lordships made the following observations:

If the appeal were properly valued, then the lower appellate Court would have no jurisdiction to entertain the appeal or dispose of it on its merits. The appeal then would have come directly to the High Court, where it could have been heard and disposed of by a Bench consisting of two Judges. No doubt, it has ultimately come to a Bench of this Court consisting of two Judges but it has come as a second appeal and the power of the Court is limited to points of law only. In other words, the Court cannot enter into the merits of the case, whereas if it had come as a first appeal it would have entered into the merits of the case, therefore, literally speaking, the disposal of the appeal on its merits has been affected on account of the under valuation. The view taken by the Madras High Court does, not commend itself to us, and with great respect to the decision of that Court, which is a decision of a Full Bench, we do not find ourselves in agreement with the view of that Court.

Their Lordships relied upon the reported decision of this Court already referred to Babu Mohini Mohan Misser and Others Vs. Babu Gour Chandra Rai and Others and Babu Pirthi Chand Lal Chowdhuri and Others, and an unreported decision in the case of Sah Radha Krishna v. Babu Mahadeo Lal Second Appeal No. 1204 of 1922. Their Lordships also made reference to the decision of this Court in Maharaja Bahadur Kesho Prasad Singh v. Lakhu Rai AIR 1923 Pat 581 , which had been relied upon on behalf of the respondents in that case.

9. There is another unreported decision of a Division Bench of this Court (Ross and Kulwant Sahay JJ.) in Kishun Lal v. Hira Lal Second Appeal No. 1679 of 1926. In that case the plaintiffs had brought a suit to redeem a usufruotuary mortgage bond for one thousand rupees, and claimed that the mortgage bond had been satisfied out of the usufruct of the mortgaged property, leaving a balance in favour of the plaintiffs of Rs. 1100 which they sought to re-cover. Hence, the suit was valued at Rs. 2100 on which court-fee was paid. The defendants had got an issue raised at the trial "whether the suit has been undervalued and the court-fee paid is insufficient." The learned Subordinate Judge found that the plaintiffs had paid proper court-fee on the amount claimed by them but that they would have to pay further court-fee on such amount as may be found due from them, if that amount was found to be larger than the amount mentioned in the plaint. On the question of under valuation, the trial Court held that, so far as that Court was concerned, it did not arise. Ultimately, the Court decreed the suit for redemption but held that the plaintiffs had to pay a further sum of Rs. 5493 odd anna a before they could get possession of the property. The plaintiffs preferred an appeal to the District Judge on a valuation of Rs. 2100. The District Judge dismissed the appeal. On second appeal to the High Court, the Stamp Reporter made a report that deficit court fees were due from the plaintiffs-appellants both in the lower appellate Court and in the High Court on the memorandum of second appeal. It was argued by the appellants in the High Court that the suit had been properly valued according to the amount mentioned in the deed to be redeemed, and, alternatively, that, if the valuation was to be Rs. 1100 plus Rs. 5493 odd anna found due from the plaintiffs, then the appeal to the lower appellate Court was incompetent, and the matter should be dealt with on the footing that a first appeal lay to the High Court direct. Their Lordships overruled the first contention of the appellants, and held that the proper value was the aggregate of the sum secured on the mortgage and the amount due from the plaintiffs, namely, Rs. 5483 odd annas. They further held that the amount as ultimately found due should be taken to be the proper value of the suit, and, therefore, that the value of the suit was over five thousand rupees, and, therefore, a first appeal lay direct to this Court, following the decision in the case of Ijjatulla Bhuyan v. Chandra Mohan Banerjee 34 Cal. 954 . They further directed, following the precedent in the case of Mahant Rukmin Das v. Dewa Singh AIR 1926 Pat. 351 , referred to above, that the memorandum of appeal to the District Judge should be treated as presented to this Court, time being extended for the purpose u/s 5, Limitation Act. They, therefore, directed the appeal to be heard as a first appeal. They also accepted the appellants contention that the court-fee paid on the memorandum of appeal in the Court of the District Judge should be given credit for, and only the deficit realised from the appellants on that basis. They also directed that the cross-appeal presented in the District Judges Court will be treated as a cross appeal in the High Court, and the court-fee paid by the respondents in the High Court on their cross-appeal would be refunded. It is doubtful how far the decision of the Bench of this Court in that case could be correct, in view of the later Special Bench decision of this Court in the case of Mt. Urehan Kuer v. Mt. Kabutri A.I.R.1934 Pat. 204, on the main question of the value of the suit and the forum of appeal, but that question is not before us. For the purposes of the present reference, it can be said that that case is a precedent in favour of the appellants in so far as the appeal to the District Judge was treated as a first appeal to this Court, and court-fee realised from the appellants on that basis, that is to say, they were given credit for the amount paid in the lower appellate Court. It may be noticed that the provisions of Section 11, Suits Valuation Act were not examined by their Lordships: they only followed the previous decision of this Court in Mahanth Rukmin Das Vs. Deva Singh @ Mahanth Deva Das and Others, .

10. In the case of Budhan Mahton Vs. Ramanugrah Singh and Another, the same procedure was followed. In that case the suit had been originally filed in the Court of the Subordinate Judge of Patna on a valuation of less than three thousand rupees. On the same valuation, an appeal was made to the District Judge. A second appeal to this Court was filed on the same valuation. But the Stamp Reporters report was accepted by the Court, and it was held that the suit and the appeal in all the Courts should have been valued at Rs. 7679 odd annas. The plaintiffs paid the deficit court-fees, and the second appeal was treated as a first appeal, ignoring the decision of the District Judge as having been passed without jurisdiction. On hearing the appeal on merits, their Lordships dismissed the suit, and treated the judgment of the District Judge as a nullity.

11. A similar question arose before a Division Bench of this Court, consisting of myself and Mahabir Prasad J, in the case of Narayan Prasad Sukul v. Rajkishore Mishra First Appeal No. 64 of 1948. In that case the suit was filed on a valuation of Rs. 2100. The appeal to the lower appellate Court also was filed on the same valuation. On second appeal to this Court, it was found that the valuation should have been Rs. 9000. The appellant accepted the valuation, but contended that his appeal to the lower appellate Court should be treated as a first appeal to this Court, and credit given for the amount paid as court-fee on the memorandum of appeal to the Court below. Following the precedents of this Court, referred to above, we directed that the same course be followed. The appeal was, therefore, treated as a first appeal, and deficit court-fee realised from the appellant after giving him credit for the amount of court-fee paid in the lower appellate Court. It is apparent from our orders in that case that we did not examine the legal position independently of those precedents. Hence, in effect, the question now before us in this reference is whether the previous reported decisions of this Court in the case of Babu Mohini Mohan Misser and Others Vs. Babu Gour Chandra Rai and Others and Babu Pirthi Chand Lal Chowdhuri and Others, and Mahanth Rukmin Das Vs. Deva Singh @ Mahanth Deva Das and Others, and the other cases following them have laid down the correct principles of law and should be followed in the present case. In this connection, it is necessary to examine closely the provisions of Section 11, Sub-sections (1), (2) and (3), Suits Valuation Act (VII [7] of 1887) which are in these terms:

(1) Notwithstanding anything in Section 578, Civil P.C., an objection that by reason of the over valuation or under valuation of a suit or appeal a Court of first instance or lower appellate Court which had not jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an appellate Court unless

(a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded or in the lower appellate Court in the memorandum of appeal to that Court, or

(b) the appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit or appeal was over valued or under valued and that the over valuation or under valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.

(2) If the objection was taken in the manner mentioned in Clause (a) of Sub-section (1), but the appellate Court is not satisfied as to both the matters mentioned in Clause (b) of that Sub-section and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower appellate Court.

(3) If the objection was taken in that manner and the appellate Court is satisfied as to both those matters and has not those materials before it, it shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of appeals, but if it remands the suit or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a Court competent to entertain the suit or appeal.

It may be said at the outset that the section has not been happily worded, and its construction is not free from doubt and difficulty. Clauses (a) and (b) of subs, (1) of Section 11 are in the nature of conditions precedent to the appellate Court entertaining an objection that, by reason of an erroneous valuation of a suit or an appeal, the" judgment rendered by that Court was void for want of pecuniary jurisdiction. Clause (a) makes it obligatory that the objection should have been taken in the Court of first instance at the earliest opportunity at or before the hearing at which issues were first framed, that is to say, in the written statements, if it is the defendant who challenges the jurisdiction of the Court of first instance, or the objection should have been taken in the memorandum of appeal to the appellate Court. Clause (b) requires that the appellate Court should record its reasons for holding that the suit or appeal was over-valued or undervalued, and that such an error in valuation "baa prejudicially affected the disposal of the suit or appeal on its merits." The question is whether Clause (a) and (b) of Sub-section (1) are disjunctive or conjunctive, notwithstanding the fact that the word used is "or" and not "and." No reported decision specifically dealing with this question has been placed before us. On the face of the two clauses as worded, they are disjunctive. But, if the provisions of Sub-sections (2) and (3) of Section 11 are examined, it would appear that the two clauses of Sub-section (1) are meant to be conjunctive because the cases provided for in Sub-sections (2) and (3) both contemplate that the provisions of Clause (a) of Sub-section (1) have got to be satisfied in any case. Sub-section (2) provides that, if the conditions laid down in Clause (a) of Sub-section (1) are satisfied but those of Clause (b) of Sub-section (1) are not satisfied, the result will be that the Court dealing with the objection will dispose of the appeal as if there had been no defect of jurisdiction. Sub-section (3) provides that, if the conditions laid down both in Clauses (a) and (b) of Sub-section (1) of Rule 11 are satisfied, the Court "shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of appeals," whatever these words may mean. Perhaps, they mean that the objection to the jurisdiction shall be upheld, and the case shall proceed on the basis that the judgment impugned had not been rendered by a competent Court, But there is no provision in the section as to what would happen if the provisions of Clause (a) of Sub-section (1) have not been complied with. Hence, on a construction of the three Sub-sections taken together, it is manifest that the Legislature intended that the condition laid down in Clause (a) of Sub-section (1) must be fulfilled in order to attract the provisions of Section 4, that is to say, in order to get the benefit of the objection based on the error in valuation affecting the jurisdiction of the Court. Similarly, the provisions of Clause (b) of Sub-section (1) have also to be satisfied in order to obtain an order from the appellate Court that the error in valuation has affected the jurisdiction of the Court. Hence, the conclusion is inevitable that, though the word "or" joins the two Clause (a) and (b) of Sub-section (1), it was meant to be conjunctive, and not disjunctive. This result canbe avoided only by dividing the three Sub-sections into two parts, namely, Sub-section (1) with the two Clause (a) and (b) meant for application at the time of the admission of the appeal and the second consisting of Sub-sections(2) and (3) as being meant for application at the final hearing of the appeal. On that construction, it is possible to hold that the conditions laid down in the two Clauses (a) and (b) of Sub-section (1) are disjunctive, that is to say, at the time of hearing the appeal for the purposes of admission, the Court will have to be satisfied either that the objection on the ground of jurisdiction was taken at the earliest opportunity or, failing that, that the erroneous valuation had prejudicially affected the disposal of the suit or appeal on its merits. There may be a practical difficulty in the way of applying Clause (b) of Sub-section (1) at the time of the admission of the appeal when, ordinarily, the Court has before it only the judgment and decree under appeal and the memorandum of appeal. But this difficulty is not insuperable, inasmuch as the Court very often, at the instance of the appellant, does have before it the whole record of the case. In that way, it is possible to construe the word "entertained" in Sub-section (1) as meaning "permitted to be raised." "When the Court has permitted the question to be raised on any one of the two grounds mentioned in Clause (a) and (b) of Sub-section (1), at the time of the final hearing of the appeal the Court will apply the provisions of Sub-section (2) or Sub-section (3), as the case may be, and hold that there was no defect of jurisdiction or that there was such a defect of jurisdiction, and act accordingly. Here, we are not concerned with the provisions of Sub-section (4) of Section 11 which extend the power conferred by the section to the Court exercising its revisional powers, for example, u/s 115, Civil P.C.

12. As already indicated, the construction of Section 11 has not been the subject of a direct decision from the point of view suggested above, The Special Bench of this Court in the case of Mt. Urehan Kuer v. Mt. Kabutri AIR 1934 Pat. 204 appears to have adopted the view of the Allahabad High Court in the case of Khudajiatual Kubra v. Mt. Amina Khatun AIR 1924 All. 388 to the following effect (quoted in the reported case at p. 355):

It is clearly contemplated there (i.e., in the statute) that any objection which is to be raised on the ground of pecuniary jurisdiction must be taken in the trial Court at the earliest possible opportunity and where the objection is not taken, it is not to be entertainable thereafter unless the appellate Court is satisfied that there has been some miscarriage of justice on the merits.

This would indicate that their Lordships were prepared to read the two clauses of Sub-section (1) as disjunctive. Section 11, Suits Valuation Act, is meant to cure defect of pecuniary jurisdiction. Section 21, Civil P.C., has been enacted with a view to curing errors of local jurisdiction. The section is in these terms:

No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.

There it will be found that the two conditions are conjunctive, and not disjunctive. In another Special Bench case reported in Narayan Jha Narone and Others Vs. Jogni Prasad Jha and Others, the Chief Justice, delivering the opinion of the Special Bench, referring to Section 11, Suits Valuation Act, made the following observations:

It enacts that a question of valuation in relation to jurisdiction shall not be entertained unless the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded unless the appellate Court is satisfied for reasons to be recorded by it in writing that the error in valuation has prejudicially affected the disposal of the suit or appeal on its merits.

13. I will, therefore, proceed on the assumption that the two clauses of Sub-section (1) of Section 11, are disjunctive and not conjunctive. In this case the point of jurisdiction grounded on the under valuation of the suit was not taken at the earliest opportunity in the written statement by the defendants, no clear issue was raised, and, at any. rate, the ambiguous issue raised was not pressed. That objection was not taken in the memorandum of appeal to the lower appellate Court nor, for the matter of fact, in the memorandum of second appeal to this Court. Hence, it is clear that the provisions of Clause (a) of Sub-section (1) of Section 11 have not been complied with. We have to see whether the provisions of Clause (b) of that Sub-section can be invoked in aid of the appellants. It has been held by this Court in the two reported decisions referred to above, namely, Mohini Mohan Misser v. Gour Chandra Rai AIR 1921 Pat 82 and Mahanth Rukmin Das v. Deva Singh A.I.R.1926 Pat. 351, that the very fact that, if the suit had been properly valued, a first appeal would have been entertain-able only by the High Court which would have to determine the controversy between the parties on all questions of fact and law is by itself sufficient to show prejudice to the party. But a Pull Bench of the Madras High Court in the case of Kelu Achan v. Cheriya Parvathi Nethiar AIR 1924 Mad 6 , has held to the contrary. The Full Bench noticed the decision of this Court in the case of Babu Mohini Mohan Misser and Others Vs. Babu Gour Chandra Rai and Others and Babu Pirthi Chand Lal Chowdhuri and Others, and expressly dissented from it. Coutts-Trotter J., in the course of his short judgment, agreeing with the Chief Justice, who delivered the leading judgment of the Court, made the following pertinent observations while referring to the decision of this Court:

... I should have thought that the contention put before us was absolutely unarguable were it not that it apparently has commended itself to at least one Bench of Judges in this country. I take it that the object of Section 11, Suits Valuation Act, is to provide a machinery for curing the original lack of jurisdiction in such circumstances. If it does not do that, it does nothing else; yet it is argued before us that, if you once start a suit in one Court which decides prejudicially on the merits, the section has no power to cure the original lack of jurisdiction which remains uncured to the end; that is to say, that the section gives you something with one hand and Immediately takes it away with the other.

This Full Bench decision of the Madras High Court followed the previous practice of that Court as in the reported precedents, namely, the cases of Raghavachariar v. Raghavachariar 20 M.L.J. 726, Narayani Ammal v. Secretary of State AIR 1918 Mad 590 and Ammalu Ammal v. Krishnan Nair AIR1920 Mad 1017 . The Patna decisions on this question, referred to above, have been followed by a Division Bench of the Oudh Chief Court in the case of AIR 1925 561 (Oudh) . Their Lordships of the Oudh Court have preferred to follow the Patna cases and not to follow the Pull Bench decision of the Madras High Court, referred to above. But a more recent decision of that Court has made observations by way of obiter dicta following the Madras view in preference to the other view, though the Patna cases do not appear to have been noticed by the later Division Bench of the Oudh Chief Court. But, as already stated, those observations are in the nature of obiter dicta, and one Division Bench of the same Court could not have overruled the earlier Division Bench ruling referred to above. The Allahabad High Court in the case of Musa Imran Vs. Bhagwan Das and Another takes the Madras view. A Pull Bench of that Court, in the case of Mool Chand Moti Lal Vs. Ram Kishan and Others , has Teviewed the authorities of its own Court, and has naturally followed the cursus curia of its own Court in preference to the view of Section 11 taken by this Court. But their observations again are in the nature of obiter dicta.

14. The Lahore High Court is not uniform in its decision, as noticed by the Allahabad High Court in the Pull Bench decision referred to above.

15. A Division Bench of the Calcutta High Court, in the case of Raghunath Charan Singh v. Shamo Koeri 31 Cal. 344 has taken the view that it was for the District Judge in the first instance, when an objection as to the jurisdiction of the Court below was raised, to determine the question whether the under valuation had affected the decision on its merits, and it will be for the High Court to examine that decision if and when that stage is reached. The Calcutta High Court, therefore, cannot be said to have categorically decided the question one way or the other. No recent decision of the Calcutta High Court on this question has been brought to our notice.

16. On a review of the authorities of the different High Courts in India, it is clear that the balance of judicial authority leans in favour of the view taken by the Madras High Court as against the view taken by this Court. But the cursus curia of this Court has been for the last 28 years or so, in favour of the view that, if, as a result of under-valuation of the suit, a litigant is deprived of his right of first appeal to this Court, that is a prejudice by itself, and that the litigant is entitled to treat the impugned judgment as void.

17. The learned Government Pleader, who appeared in support of the Revenue, while supporting the demand for additional court-fee, contended that Section 11, Suits Valuation Act, only barred the raising of the objection to jurisdiction by one of the parties to the litigation, but did not prevent the Court from taking notice of the fact that the judgment impugned has been rendered by a Court which had no pecuniary jurisdiction to pass the decree, and, therefore, the judgment and the decree should be treated as void. Further, he indirectly supported the appellants contention by submitting that the present case was not one of under-valuation but of payment of insufficient court-fee son a wrong principle, treating the suit as valued at four thousand rupees on the basis of the valuation in the document impugned; whereas, on a true application of the principle of the Court-fees Act, the valuation both for purposes of court-fees and for jurisdiction should have been fifteen thousand rupees. But, on the first question raised by the learned Government Pleader, it appears to me that he is making a distinction without there being any real difference in substance. He did not bring to our notice any decision where such a distinction has been made. In this connection the decision of a Division Bench of the Bombay High Court in Shidappa Venkatrao v. Rachappa Subrao 36 Bom. 628 may have to be examined. In that case the plaintiff sued for a declaration that he was the adopted son of the last full owner who left properties worth sixty-nine thousand odd rupees which was the valuation of the suit for the purposes of pleaders fees. He valued the declaration at Rs. 130. As the properties were under attachment by the Collector after the death of the last full owner, the plaintiff had not prayed for any consequential relief in respect of those properties, but he prayed for an injunction restraining the defendant from interfering with plaintiffs right in respect of a house which he claimed to be in his possession, and the relief for injunction was valued at only Rs. 6. The suit was filed in the Court of the First Class Subordinate Judge who only could have heard a suit of the value of more than five thousand rupees and in respect of properties not wholly within the local jurisdiction of the Second Class Subordinate Judge. The First Class Subordinate Judge, who heard the suit decreed the claim. The defendant appealed to the District Judge. The District Judge heard the appeal, in spite of the preliminary objection raised by the plaintiff to his jurisdiction to hear the appeal. The District Judge overruled the objection as regards his pecuniary jurisdiction, and set aside the decision of the Court of first instance. On second appeal by the plaintiff, the High Court held that the First Class Subordinate Judge, who tried the suit, had the special jurisdiction to try it, and that, therefore, his decree was not void for want of pecuniary jurisdiction. It also held that the District Judge had no jurisdiction to entertain the appeal. In that view of the matter, the Court directed that the decree of the District Judge should be reversed, and the memorandum of appeal to that Court must be returned to the respondent for presentation to the High Court. The appeal to the High Court was ultimately dismissed, and the trial Courts decision affirmed. This case went up in appeal to His Majesty in Council by special leave, and their Lordships decision is reported in Rachappa Subrao v. Shidappa Venkatrao AIR 1918 PC 188. Before their Lordships of the Judicial Committee, it was argued on behalf of the appellant that the value of the subject-matter of the suit did not exceed five thousand rupees, and that the decision of the Subordinate Judge and of the High Court also were without jurisdiction. Their Lordships repelled those contentions, and held that the suit was within the special jurisdiction of the First Class Subordinate Judge, as the subject-matter of the suit exceeded five thousand rupees in value, and that the appeal properly lay to the High Court. Their Lordships also were of the opinion that the objection to the jurisdiction of the first Court, not having been taken in that Court could not be taken in a subsequent stage of the suit. Though, in the course of the arguments, reference was made to Section 11, Suits Valuation Act, their Lordships do not make any observations on that section. It will be noticed that there are certain very special (blurred) of that case. Un-like Subordinate Judges in this province, in the Bombay Presidency, it appears, there are Special Subordinate Judges known as First Class Subordinate Judges who only could hear suits of the value of more than five thousand rupees or suits in respect of properties situated within more than one local jurisdiction. Secondly, the High Court at Bombay first entertained the second appeal from the decision of the learned District Judge on appeal. As a result of the decision of the High Court, the appeal to the District Judge was heard as a first appeal to the High Court, and their Lordships, disagreeing with the District Judge, affirmed the decision of the Court of first instance. Hence even if the provisions of Section 11, Suits Valuation Act were to be strictly applied to that case, prejudice to the plaintiff by the District Judges judgment was clearly brought out, as a result of the judgment of the High Court on merits. This decision of their Lordships of the Judicial Committee is an authority for the proposition that in a suit for a declaration in respect of certain property the real value of the property in question, and not its notional value as put down by the plaintiff, determines the jurisdiction of the Court; this judgment is no authority, one way or the other, on the construction of Section 11, Suits Valuation Act. Their Lordships have pointed out in that case that, if the objection to the jurisdiction of the Court had been taken at the earliest opportunity, the litigation would not have been prolonged as it was in that case. They also pointed out that the objection was based "on the most technical of technicalities", namely, the provisions of the Court-fees Act. They further pointed out that

the Court-fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the benefit of the State. This is evident from the character of the Act, and is brought out by Section 12, which makes the decision of the First Court as to value final as between the parties, and enables a Court of appeal to correct any error as to this, only where the first Court decided to the detriment of the revenue.

18. Learned Counsel for the appellants also contended, on the authority of the decision of a Division Bench of the Calcutta High Court in the case of Rajlakshmi Dasee v. Katyanai Dasee 38 Cal. 639 , that the judgment of the lower appellate Court is a nullity, and that, therefore, this Court should ignore it as such. But this argument ignores the provisions of Section 11, Suits Valuation Act, which are meant to meet a situation created by a Court giving a judgment in a suit which was beyond its pecuniary jurisdiction. Unless it can be held that Section 11, Suits Valuation Act did not apply to the facts and circumstances of the present case and is out of the way of the appellants, they cannot ignore those provisions. It appears that the suit in that case was deliberately and intentionally under-valued at Rs. 2100, though the true value of the properties in question was more than a lac of rupees. Their Lordships further pointed out that such a deliberate under, valuation resulted in the State being defrauded of court-fees of a considerable amount, and the jurisdiction of the High Court as the Court of first appeal was also ousted. Their Lordships observed, in the course of their judgment, as follows:

It is an elementary principle of law that, if a Court has no jurisdiction over the subject-matter, its judgments and orders are mere nullities, and may not only be set aside at any time by the Court in which they are rendered, but be declared void by every Court in which they are presented. If a Court has no jurisdiction, its judgment is not merely voidable, but void, and it is wholly unimportant how precisely certain and technically correct its proceedings and decisions may have been if it has no power to hear and determine the cause, its authority is wholly usurped and its judgments and orders are the exercise of arbitrary power under the forms, but without the sanction of the law. These principles apply, not only to original Courts, but also to Courts of appeal. Jurisdiction over the subject-matter, whether in the Court of first instance or in the appellate Court, is given only by law, and cannot be conferred by consent of parties. Accordingly where an appellate Court does not possess jurisdiction to review the action of the Court below, jurisdiction cannot be conferred upon it by consent of the parties and any waiver on their part cannot make up for the lack or defect of jurisdiction.

Those observations of their Lordships of the Calcutta High Court, in my opinion, do not apply to the facts of the present case, inasmuch as those observations were made in relation to a litigant who was not a party to the decree which was impugned as void for want of pecuniary jurisdiction. In the present case the appellants were defendants to the suit, and could and should have raised, at the earliest opportunity, an objection to the under-valuation. They have taken a judgment against themselves. Is it open to them to ignore that judgment as a mere nullity In my opinion, it is not. The CPC has made provisions for getting rid of a judgment by a party against whom that judgment may have been given. That judgment may be without jurisdiction; but it would still be binding on the parties to that judgment unless, of course, it is vitiated for other reasons, for example, fraud on the Court or on any of the parties. The appellate Court, or a Court of revision u/s 115 of the Code, is certainly entitled to set aside a judgment which is vitiated by the Court which rendered it exceeding its powers; but, so long as the judgment stands, it is binding on the parties. Hence, in the present case, the judgment of the learned District Judge is binding on the parties unless set aside by this Court on appeal.

19. Now, the question is how to get rid of such a judgment. It can only be got rid of by some process known to law, namely, by preferring an appeal from that judgment, and obviously a second appeal, as the judgment impugned is that of the appellate Court. Should that judgment be set aside simply on the ground that it was rendered by the District Judge whose pecuniary jurisdiction in appeal is limited to Rs. 5000 irrespective of any other consideration As I have already pointed out, the provisions of Section 11, Suits Valuation Act require that there should be a prejudice caused to the party impugning the judgment as regards the disposal of the appeal on merits. I have also pointed out above that the weight of judicial authority is in favour of the view that the very error of pecuniary jurisdiction should not by itself be taken as a ground for inferring prejudice; something more must be established. Hence, prejudice can be established by going into the merits of the decision, that is to say, both on questions of fact and questions of law. Ordinarily, this cannot be done on a second appeal. Therefore, the precedents of this Court have established the practice that the second appeal should be converted into a first appeal, and dealt with as such. But that amounts to prejudging the whole issue between the parties. The reported decisions of this Court referred to above, namely, Mohini Mohan Misser v. Gour Chandra Rai AIR 1921 Pat. 32 and Mahanth Rukmin Das Vs. Deva Singh @ Mahanth Deva Das and Others, entertained the second appeal, and then decided to hear the case as a first appeal. The unreported decision went a step further, and decided that the second appeal should be converted into a first appeal for all purposes including those of court-fees. In my opinion, such a procedure is not warranted by law, and especially the Court-fees Act. The Court-fees Act has deal; with the question of refund of court fees in Section 13 to 15 of the Act. But none of those sections can be prayed in aid of the present appellants.

20. It may be that, in order to grant relief to the appellants in the present case, the Court may have to go into the merits of the case. But that can be done under the provisions of Section 103, Civil P.C. which confers power on the High Court to determine issue of fact also in cases where that issue may have been wrongly determined by reason of any illegality, omission, error or defect as contemplated in Section 100 of the Code. In my opinion the provisions of Section 103, Civil P.C. are wide enough to empower the High Court in the circumstances of the present case to go into the facts of the case to determine whether the appellants have been prejudiced in the disposal of their appeal by the lower appellate Court on merits. But that is quite a different thing from saying that the second appeal should outright be converted into a first appeal for all purposes, even for realising court-fee on the basis contended for on behalf of the appellants, that is to say, that the appellants are entitled to treat the decision of the learned District Judge as a mere nullity, and then to have their memorandum of appeal in the lower appellate Court treated as a memorandum of appeal to this Court, giving them credit for the court-fees paid in the Court below and making them liable for only so much of court-fees as would be deficit on the memorandum of appeal in the lower appellate Court treated as one in a first appeal in this Court. Such a procedure was adopted in this Court for the first time by Ross and Kulwant Sabay JJ. in the unreported decision in the case of Kishun Lal v. Hira Lal second Appeal No. 1679 of 1926. But their Lordships passed those orders without examining the provisions of the Suits Valuation Act or of the Court-fees Act, and that practice has been followed ever since in this Court without any further examination of the legal position. In my opinion, such a practice is not warranted by the provisions of the Court-fees Act.

20a. In view of these considerations, I have come to the following conclusions: (1) That the judgment of the trial Court in this case was not vitiated by any error of jurisdiction as a result of the under-valuation. (2) That the judgment and decree of the lower appellate Court are not wholly void but only voidable on the appellants showing that they are erroneous in fact or in law, and that thus the appellants have been prejudiced in the disposal of the appeal on merits. (3) That simply because the lower appellate Court had no pecuniary jurisdiction over the appeal, which should have been heard as a first appeal, in this Court, would not by itself amount to prejudice in the disposal of the case on merits. (4) That the established practice of this Court to treat such a second appeal as the present as a first appeal for all purposes, including those of court-fees, is not in accordance with the provisions of the Suits Valuation Act or the Court-fees Act. I would, therefore, answer the questions under reference in the negative.

Meredith J.

21. The reference to the Full Bench actually involves two questions whether in the circumstances stated, it is permissible to treat the second appeal as a first appeal, and whether the appellants can be credited with the court-fees paid in the Court below. I agree with my learned brother Sinha J., whose judgment I have had the advantage of perusing, that both these questions should be answered in the negative.

22. Taking first the question of court-fees, I can see no good reason in law or equity why the appellant to the District Judge should get a refund or credit for a court-fee paid by him. He has himself chosen the forum of the District Judge. He has invited that Judges decision in his case. If he is the plaintiff, he is entirely responsible for the fact that the appeal has gone to the District Judge. Even if he be the defendant, his submission to the District Judge is still a matter of his choice. If he has not contested the plaintiffs valuation, his position is similar to that of a plaintiff-appellant. If he has unsuccessfully contested it before the trial Court, then it is open to him instead of going to the District Judge to come straight to the High

25. I turn now to the other question. I agree with my brother Sinha J., that as between the parties to the litigation the judgment of a duly constituted Court, which is vitiated merely by inadequacy of pecuniary jurisdiction, is not a complete nullity which can be ignored and treated as being not in existence. As I apprehend the matter, it is a good judgment capable of execution unless and until it is set aside by a higher Court. Section 99, Civil P.C., clearly implies that the Court and assert that the trial Courts decision on valuation was wrong, and actually upon a proper valuation the appeal lies to the High Court as a first appeal.

23. It is not only that the appellant has of his own choice chosen the forum of the District Judge, but, as a result, the valuable time of the District Judge has been consumed in deciding the case. Court-fees are primarily demanded by Government to meet the expenses of maintaining the judicial establishment. The District Judge having employed himself in the matter, the conditions for which the court-fees have been imposed have been fulfilled. Why then should Government forego these court-fees

24. Apart from these considerations, the appeal to the High Court, as I shall presently endeavour to show, is essentially a second appeal, and must be treated as such. That being so no question of refunding or crediting the court-fees on the first appeal can arise.

26. Finally, Section 11, Suits Valuation Act also proceeds on the assumption that the judgment is not a complete nullity. It lays down certain conditions in which the defect in such a judgment is to be ignored. No ignoring of defects can give validity to something that is a nullity; that has no real existence.

27. If it be once conceded that the judgment of the District Judge is one which has to be reversed or set aside, it inevitably follows that the appeal to the High Court can only be a second appeal, and must be dealt with as such. I think the learned Judges who have favoured the course of treating the appeal as a first appeal must have been influenced by the fear that otherwise the appellant would be deprived of a consideration by the High Court of his case upon the merits. This view, however, is incorrect. Owing to the provisions of Section 11, Suits Valuation Act the appellant before the High Court, once he raises the question of jurisdiction, can, and indeed must, receive a consideration of the merits by the High Court. The High Court has to determine whether the decision of the District Judge in first appeal has to be set aside for lack of jurisdiction. To do this it has to determine whether the hearing by the District Judge has prejudiced the appellant. This, in my view, in turn involves a decision as to whether the decision of the District Judge is right or wrong upon the merits. For on this question of the meaning of the word "prejudicially" as used in Section 11, I am in agreement with Sinha J. in preferring the Madras view. Sinha J. has accepted the Madras view despite what he refers to as a cursus curia in Patna. That cursus is not, however, smooth and uninterrupted. I have found two Division Bench decisions of this Court where the fact that the appeal was heard by the District Judge when it should have been heard by the High Court was not accepted as in itself, without more, constituting any prejudice. These decisions are Satya Kinkar Sahana v. Raja Sri Sri Shiba Prasad Singh A.I.R.1920 Pat. 822 where Jwala Prasad J. sitting with Mullick J., laid down that:

Under Section 11, Suits Valuation Act, 1887, the disposal of an appeal by a lower appellate Court cannot be questioned as being without jurisdiction on the ground of the valuation being beyond the pecuniary limit of the jurisdiction of that Court unless the disposal of the appeal on the merits has been prejudicially affected.

28. The other case is Kesho Prasad Singh v. Lakhu Rai AIR 1923 Pat. 581 decided by Kulwant Sahay and Foster JJ. The decision of the District Judge was challenged on the score of lack of jurisdiction owing to under-valuation, and Kulwant Sahay J. rejected this contention observing (at page 529):

Moreover nothing has been shown by the defendant-appellant before us that the under-valuation of the suit and of the appeal to the District Judge has in any way prejudicially affected the disposal of the suit or of the appeal on its merits. I am of opinion that there being no proof of prejudice, the objection cannot be entertained that the decree of the learned District Judge is null and void for want of jurisdiction.

29. The High Court then will have to consider whether the decision of the District Judge was right or wrong on the merits. The power to do so is, in my judgment, conferred at this stage not by Section 103, Civil P.C., but by Section 11 itself. The determination at this stage is not for decision of the appeal on the merits but for decision upon the objection regarding lack of jurisdiction. If the High Court holds that the decision of the District Judge was right on the merits, the appellant can have no further complaint. He has had his decision from the High Court. If, on the other hand, the High Court holds that the decision was wrong on the merits, then Section 103, Civil P.C., comes in, and the High Court will itself determine the issues of fact, so that in either case, though the appeal is a second appeal and must be decided as such, the appellant in fact obtains a decision from the High Court upon the merits, and a decision just as effective as if the appeal had been treated as a first appeal,

30. In conclusion I wish to make some observations upon Section 11, Suits Valuation Act. I will not quote it in extenso because that has been already done by my brother Sinha J. in his judgment. I venture to express the opinion that this section is one of the worst drafted pieces of legislation which any unfortunate Judge can have had to construe. Sinha J. has pointed out at length that, whereas (a) and (b) of Sub-section (1) can only be read disjunctively, there are strong reasons for supposing that the Legislature intended conjunctive clauses; that is to say, that the word or was used between them when the word and was intended.

31. Let us analyse the section further. Though the judgment vitiated by lack of pecuniary

jurisdiction is not as between the parties a complete nullity, nevertheless it is one which, quite apart from the merits, must be set aside by the appellate Court under the provisions of Section 99, Civil P.C. The object of Section 11 is clearly to preserve that judgment in a limited class of cases. Being an enabling section, it is to be expected that it will be drafted with great care, and will clearly and exhaustively specify the enabling conditions.

32. Sub-section (1) specifies the conditions with-out which the application attacking the judgment cannot be entertained. The conditions are expressed as alternatives, and they are (a) that the objection was promptly taken; alternatively, (b) that the appellate Court is satisfied that the suit or appeal was wrongly valued and this has prejudicially affected the disposal of the case on its merits.

33. The effect of Sub-section (1) is, therefore: either (a) or (b) being satisfied, objection to be entertained. Entertained may be either initially admitted or allowed. Here is a complete. ambiguity. The difficulty about the first construction is that the point cannot be decided until the whole case has been considered upon the merits, a procedure hardly appropriate to mere admission. If, on the other hand, we read entertained as allowed, that reading is contradicted by the provisions of Sub-sections (2) and (3), which go on to prescribe how the Court is subsequently to deal with the matter. Sub-section (2) says in effect (a) is satisfied, but (b) not satisfied. Then, if the Court has before it the necessary materials for determination of the appeal, the defect of jurisdiction shall be ignored; in other words the objection shall be rejected.

34. Sub-section (3) next applies to the case where (a) and (b) are both satisfied, and specifies that in such a case, if the Court has not the necessary materials before it

it shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of appeals.

What on earth do these words mean Possibly they mean that in that case the decision of the lower appellate Court is to be set aside for lack of jurisdiction. But, if so, that is certainly not what the Legislature has said.

35. Much worse is to follow. As I have said, Sub-section (2) covers (a) satisfied, (b) not satisfied. Sub-section (3) covers (a) and (b) both satisfied. What is to happen where (b) is satisfied, but not (a) The section is completely silent. In such a case is the judgment to be set aside in second appeal or is it to be maintained despite the prejudice, in the absence of other material grounds for setting it aside in second appeal On the one hand, the section, being an enabling section, it cannot enable where there is no express provision. Moreover it says that where (b) is satisfied, but not (a), the objection is to be "entertained". Once entertained, how can the Court ignore the prejudice which it has found It seems, therefore, on both grounds that where (b) is satisfied but not (a), then also Section 11 does not save a judgment, "and it will have to go, u/s 99, despite the fact that the object of the legislation seems to be to prevent such an objection being taken unless taken at the first opportunity.

36. In short, in that event the objection must be entertained, and must be allowed, though there is no such provision in the section. But even this is not all. Sub-section (2) deals with the case: (a) satisfied, (b) not satisfied; papers before the Court. What of the case (a) satisfied, (b) not satisfied, necessary materials not before the Court If they are not before the Court, then apparently Sub-section (2) has no application. If so, the wording seems to imply that the Court cannot ignore the defect of jurisdiction. Is it then to allow the application in such a case, though not provided for Sub-section (3) deals with, (a) and (b) satisfied: necessary materials not before the Court. What of the case: (a) and (b) satisfied and materials before the Court This is likely to be a frequent case. But what is the Court to do If it is to allow the application and set aside the judgment, one would expect the Sub-section to say so. One can only pause in bewilderment and awe before the ingenuity of the draftsman who has imported so many ambiguities and lacunae into the short space of a single section. The whole rigmarole which is Section 11, could in my opinion, have been avoided by a simple provision that the defect in pecuniary jurisdiction of the Court, as between the parties, shall be ignored except in cases where the objection to jurisdiction has been taken at the earliest opportunity, and there has been a failure of justice.

Das J.

36a. I have had the privilege and advantage of perusing the judgments prepared by my learned brethren, Meredith and Sinha JJ.

37. I agree with them that in the circumstances stated, the answers to the two questions involved in the reference to the Pull Bench should be in the negative. The answers depend to a large extent on the view one takes of the provisions of Section 11, Suits Valuation Act--provisions the difficulties of interpreting which have been commented on by my learned brethren, with particular reference to the ambiguities and lacunae left therein. I need not repeat what they have said.

38. There is, in my opinion, a further reason for holding that Clauses (a) and (b) in Sub-section (1) of the section are disjunctive, in the sense that they are two alternatives either of which (and not necessarily both) must be satisfied before the objection as to jurisdiction is initially allowed to be raised. If the two Clauses (a) and (b) are taken as conjunctive clauses, i.e., both conditions must be fulfilled before the objection as to jurisdiction can be allowed to be raised, then Sub-section (2) becomes redundant as it would on that construction cover more or less the same ground as Sub-section (1). On reading all the Sub-sections together the effect of the provisions seems to be that prejudice in the disposal of the suit or appeal on merits is the crucial test. If that test is fulfilled, then the objection as to jurisdiction is entertained; if, however, the objection as to jurisdiction was taken at the earliest opportunity but there has been no prejudice on merits, the defect of jurisdiction is ignored. This seems to me to be the only intelligible result of the provisions, which are expressed in a very round-about way.

39. On the question of prejudice on merits, I prefer the Madras view. The object of the Legislature in enacting Section 11, as in the case of Section 21, Civil P.C., was to ensure that the defect of jurisdiction on territorial or pecuniary ground should not render proceedings in a case abortive if such objection was not taken at the earliest opportunity and there has been no consequent failure of justice. There is no difficulty in interpreting Section 21, Civil P.C., which is simply and directly expressed. There are considerable difficulties, however, in interpreting Section 11, Suits Valuation Act, the provisions of which are ex-pressed in a very circumlocutory way, hedged in with conditions, the existence of some of which has certain consequences mentioned in the Section on while the consequences of the non-existence of other conditions are not mentioned. It is a matter of some surprise to me that the section has stood for such a long time without evoking comments on its ambiguous and round-about phraseology. It is reasonably clear, however, that the object of the section is as stated above, and if the section did not exist, the defect of jurisdiction would lead to a reversal of the judgment and decree rendered by an incompetent Court, u/s 99, Civil P.C. That is why the section contains the opening clause "Notwithstanding anything in Section 578, Civil P.C. (now Section 99 of the Code of 1908)." If the object of the section be to cure defect of jurisdiction unless there has been prejudice on merits, it would be self-contradictory to hold that the defect of jurisdiction itself amounts to prejudice. As Coutts-Trotter J. had pointed out very pertinently, such a view of the section would mean that it gives with one hand what it takes away with the other. In some cases, a distinction has been drawn between disposal of the suit or appeal and decision and on this distinction a difference has been made between two classes of cases-one-class where the suit is originally tried by a Court of insufficient pecuniary jurisdiction but the appeal is heard by a Court which was competent to hear the appeal, both on law and facts, even if the suit had been originally tried by a Court of competent jurisdiction; and another class of cases where but for the under-valuation, the appeal would have gone to a Court of superior jurisdiction such as the High Court, instead of the District Judge. In the former class come cases of the valuation of less than Rs. 5000 which are wrongly tried by a munsif of lower pecuniary jurisdiction instead of by a Subordinate Judge or a munsif of special jurisdiction but the appeal is heard by the District Judge to whom the appeal would have come, even if the suit had been correctly tried by a Court of competent jurisdiction. In the latter class come cases of more than Rs. 5000 in value, which may or may not be tried in a wrong Court originally but the appeal is wrongly heard by the District Judge, though on the correct valuation, the appeal should have been heard by this Court as a first appeal. Can it be said that in the latter class of cases the under-valuation which caused the defect of jurisdiction has by itself prejudicially affected the disposal of at least the appeal on merits This question appears to have been answered in the affirmative in some of the cases cited before us, particularly in Mahanth Rukmin Das v. Deva Singh A.I.R.1926 Pat. 351 and AIR 1925 561 (Oudh) . I frankly confess that the reasoning adopted in the two aforesaid cases on the question of prejudice, where an appeal which should have been heard by this Court as a first appeal is heard by the District Judge as a result of an under-valuation, is not without some attractiveness, and at first sight I. was inclined to think that the under valuation itself caused prejudice in the disposal of the appeal in such a case. On further consideration, however, I feel that this line of reasoning does not give full effect to the words on its merits occurring in Clause (b), Sub-section (1). The clause is "prejudicially affected the disposal of the suit or appeal on merits". The under-valuation, no doubt, led to the appeal being wrongly heard by the District Judge, but how can the hearing of the appeal by the District Judge prejudicially affect its disposal on merits, unless the decision is shown to be wrong The words on merits" will be meaningless, if the mere fact of the hearing of the appeal by the District Judge is held to have prejudicially affected the disposal of the appeal.

40. I agree with Sinha J. that a judgment rendered by a Court which had jurisdiction on the valuation given--though incorrectly given--is not a nullity and would be binding on the parties unless set aside. On the view of Rule 11, Suits Valuation Act, that prejudice on merits must be shown before the objection as to defect of jurisdiction is upheld. The judgment of the District Judge is not a nullity. The second appeal against that judgment must, therefore, be heard, and the party raising the objection as to defect of jurisdiction must establish that the "under valuation has prejudicially affected the disposal of the appeal on its merits". It follows that the second appeal cannot be automatically treated as a first appeal by ignoring the judgment of the District Judge, nor can any of the parties get credit for the court-fees paid in the Court of appeal below.

41. As to what this Court should do when prejudice on merits is made out--whether this Court should determine the questions of fact u/s 103, Civil P.C. in the second appeal itself--is a question which does not arise on the reference, and need not be answered here. This aspect of the case with reference to Section 103, Civil P.C. was not argued at the Bar, and I reserve my opinion on it. It is sufficient to state that if prejudice on merits is made out, the judgment rendered by a Court of incompetent jurisdiction will be liable to be set aside and Section 11, Suits Valuation Act, will not save it.