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Balvantrao and ors. Vs. Bhimashankar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom517
AppellantBalvantrao and ors.
RespondentBhimashankar and ors.
Excerpt:
.....by high court even in cases relating to admissions. - 'the plaintiffs bring this suit as one for accounts, while the suit is really of the nature described by the appeal court in appeal 199 of 1885 (that is, a suit for money had and received), and the stamp ought to be made good as if the claim were for rs. 1,000. the plaintiffs were allowed time till to-day to make good the stamp accordingly, but their pleader refuses to-day to make it good,'and the subordinate judge, for that reason, dismissed the suit. 22 .if the subordinate judge found that the suit was not one for an account, but for the recovery of money, he should have called on the plaintiffs to value the relief they sought precisely, as he could have done under section 50, clause 2 of the code of civil procedure, in which..........section 54(b) of the civil procedure code to this case, and secondly, in himself valuing the relief sought by the plaintiffs. the suit as brought was one for an account, and the plaintiffs in their plaint valued the relief they sought approximately, as they were entitled to do, both under section 50 of the civil procedure code, and section 7, clause iv(f), of the court fees act: see govindas kasandas v. dayabhai savachand i.l.r. 9 bom. 22 . if the subordinate judge found that the suit was not one for an account, but for the recovery of money, he should have called on the plaintiffs to value the relief they sought precisely, as he could have done under section 50, clause 2 of the code of civil procedure, in which case section 7, clause 1 of the court fees act would regulate the.....
Judgment:

Parsons, J.

1. The Subordinate Judge says: 'The plaintiffs bring this suit as one for accounts, while the suit is really of the nature described by the appeal Court in Appeal 199 of 1885 (that is, a suit for money had and received), and the stamp ought to be made good as if the claim were for Rs. 1,000. The plaintiffs were allowed time till to-day to make good the stamp accordingly, but their pleader refuses to-day to make it good,' and the Subordinate Judge, for that reason, dismissed the suit. We are of opinion that he has thus committed a double error,--first in applying Section 54(b) of the Civil Procedure Code to this case, and secondly, in himself valuing the relief sought by the plaintiffs. The suit as brought was one for an account, and the plaintiffs in their plaint valued the relief they sought approximately, as they were entitled to do, both under Section 50 of the Civil Procedure Code, and Section 7, Clause iv(f), of the Court Fees Act: see Govindas Kasandas v. Dayabhai Savachand I.L.R. 9 Bom. 22 . If the Subordinate Judge found that the suit was not one for an account, but for the recovery of money, he should have called on the plaintiffs to value the relief they sought precisely, as he could have done under Section 50, Clause 2 of the Code of Civil Procedure, in which case Section 7, Clause 1 of the Court Fees Act would regulate the amount of fee. He could then have applied Section 54(a) of the Code of Civil Procedure if he considered that the relief sought was undervalued. He, however, had no power whatever to make the valuation himself in the first instance, and, estimating it at Rs. 1,000, to call on the plaintiffs to stamp up to that amount. The plaintiffs might not wish to claim the whole amount due to them, or they might abandon some part of their claim. It does not follow that, because from the statements in the plaint Rs. 1,000 appeared due, that amount was the actual amount claimed on which the fee was to be computed. It is dear that Section 54(b) applies to cases where the relief is properly valued, but the plaint is written upon paper insufficiently stamped. Such is not the case here. The relief admittedly was properly valued, and the plaint sufficiently stamped, if the suit was one for an account. The plaint might be also sufficiently stamped if the suit was one for money had and received, provided that the plaintiffs did not claim more than what the fees on the plaint covered. It is impossible, however, to determine whether the plaint is sufficiently or insufficiently stamped, unless and until the plaintiffs are called on to value the relief they seek, and they do value it. We must, therefore, reverse the decrees of the lower Courts, and remand the case for retrial by the Subordinate Judge. He should determine judicially whether the suit is one for an account. If it is, then the relief sought will be properly valued, and the stamp sufficient. If it is not, then the Subordinate Judge should call on the plaintiffs to value precisely the relief they seek, that is the amount of money claimed, and he should proceed thereafter according to law. Costs to abide the result.


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