1. The plaintiff filed Special Civil Suit No. 188 of 1951 in the Court of the 2nd Joint Civil Judge, Senior Division of Poona, for a declaration that the partnership between him and the defendant was dissolved on 29-7-1951 or from the ate determined by the Court, for an account of the partnership and for a decree for the amount that may be ascertained to be due on taking such accounts and for costs of the suit. The plaintiff valued the claim at Rs. 10,500/- for purposes of court-fee and jurisdiction. The defendant denied the partnership set up by the plaintiff and enied liability to account. The learned trial Judge passed a decree declaring that the business referred to in the plaint was carried on by the parties to the suit in partnership and each had a half share in the profit and loss in the business thereof. He declared the partnership as dissolved from the date of his order, and appointed a Commissioner for taking accounts for determining the amount, if any, due to the plaintiff. Against that decree this appeal has been preferred by the defendant, and the defendant has valued the claim for purposes of court-fee and advocate's fee at Rs. 200/-. The Office of the Register, when the appeal was filed, raised an objection about the adequacy of the court-fee paid on the memo of appeal. The defendant explained that he was entitled to value the claim, in an appeal from a decree for accounts, by virtue of the provisions contained in Section 7(iv)(f) of the Court-fee Act, at any arbitrary figure he chose and he was not bound in appeal by the valuation made by the plaintiff. The office of the Registrar accepted the contention raised by the defendant and numbered the appeal. At the hearing of the appeal an objection has been raised about the valuation of the appeal for purposes of Court-fee.
2. Admittedly, in the trial Court the plaintiff had valued the claim at a consolidated amount of Rs. 10500/- for a declaration and for dissolution of the partnership and for accounts. The reliefs for declaration and for dissolution were however purely incidental to the claim for accounts. Section 7(iv)(f) of the Court-fee Act, in so far as it is material, provides:
'The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:
(iv) In suits -...
(f) for accounts-according to the amount at which the relief sought is valued in the plaint or memorandum of appeal', and in all such suits, the plaintiff shall state the amount at which he values the relief sought'.
The plaintiff, as we have already stated, valued the claim at Rs. 10,500/-. By Section 8 of the Suits Valuation Act, this valuation became determinative of the jurisdiction of the Court to entertain the suit. In the trial Court the defendant did not contend that the valuation made by the plaintiff was arbitrary, and defended the suit on the merits. By the decree it was declared that there was, in fact, a partnership, and an account of the partnership was directed. In this appeal the defendant values the claim for Court-fees at Rs. 200/-. The question which then falls to be determined is whether where the plaintiff has made a valuation of a suit for accounts and the defendant has not challenged that valuation in the Court of first instance, it is open to the defendant in filing an appeal to alter that valuation? In suits governed by Section 7(iv)(f) of the Court-Fees Act, the plaintiff has to value the relief claimed by him. That value placed by the plaintiff for purposes of Court-fee in suits for accounts becomes determinative of the jurisdiction of the Court. There is no express provision in the Court-Fees Act which justifies the defendant to alter the valuation made by the plaintiff which is determinative of the value of the subject-matter of the suit for purposes of court-fee. But it is urged by Mr. Lalit, who appears on behalf of the defendant, that when the plaintiff is given under the provision of the Court-fees Act an option to value the subject matter of the suit for accounts, the exercise of that option enures only during the suit and after a decree is passed by the Court which tries the suit it is open to the defendant to alter the valuation and value the subject-matter at any amount which in his view is the true value. Mr. Lalit contends that to hold otherwise would enable the plaintiff in a possible case to make an arbitrary and exaggerated valuation of the subject-matter and hold the defendant bound by that valuation in the subsequent proceeding, in the Court of appeal. This Mr. Lalit contends, may work injustice by compelling the defendant to pay an excessive court-fee on a claim which is ex-aggerated.
3. We are unable to accept the contention raised by Mr. Lalit. If the subject-matter of any suit has been wrongly valued by the plaintiff, it is open to the defendant to apply to the Court to correct that valuation. If, however, the defendant does not raise a contention in the trial Court that the valuation made by the plaintiff is exaggerated and chooses to join issue on the merits of the case, it will not, in our judgment, be open to him after a decree is passed against him to contend that the valuation made by the plaintiff was exaggerated. In any event, in our judgment, once the valuation of the subject-matter is fixed by the plaintiff by valuing the claim for purposes of court-fee in the manner permitted to him by the legislature, that valuation of the subject-matter must in the absence of any provision justifying a departure enure for the entire proceeding in the suit and if the defendant desires to challenge the whole decree passed by the trial Court, the defendant must accept that valuation.
4. The view we have expressed has been taken by a majority of the High Court in India. According to the High Court of Madras, in a suit filed for accounts of a partnership the valuation made by the plaintiff is binding upon the defendant when the defendant appeals against the whole of the decree passed by the Court of first instance directing an account to be taken, see Samiya Mavali v. Minammal, ILR Mad 490: Srinivasacharlu v. Perindevamma, ILR Made 725: AIR 1917 Mad 668 and in Re: Dhanukodi Nayakkar, ILR 1938 Mad 538: AIR 1938 Md 435. The view taken by the Madras High Court has also been approved of by this Court in Potchalal v. Umedram, 30 Bom LR 1284: AIR 1928 Bom 476. In that case Mr. Justice Fawcett and Mr. Justice Baker following the decision in Srinivasacharulu's case, ILR Made 725: AIR 1917 Mad 668 held that the defendant in an appeal against a preliminary decree for account, was not, having denied liability to account, competent to alter the valuation of the subject-matter made by the plaintiff. With this view Mr. Justice Mirza did not agree.
5. The same view was also taken by the Nagpur High Court in Sheoram v. Atmaram, ILR 1943 Nag 17: . Mr. Lalit, contends that the view taken by the Madras High Court and followed by this Court and the Nagpur High Court is inconsistent with the decision of their Lordships of the Privy Council in Faizullah Khan v. Mauladad Khan, 31 Bom LR 841: AIR 1929 PC 147. That was a case in which the plaintiff claiming an account of a partnership between him and the defendant valued the claim in the Court of First instance at Rs. 3,000/- and paid court-fee on the valuation. The defendant denied liability and claimed that at the foot of the account he was entitled to recover a sum exceeding Rs. 29,000/- from the plaintiff and he counterclaimed that amount. The Court of first instance passed a decree against he plaintiff for Rs. 19,991/-. In filing the appeal to the Court of the Judicial Commissioner, the plaintiff valued the claim for court-fee at Rs. 19, 991/- at the same time explaining that the claim was for reversal of the decree against him and for a decree in their favour for the amount claimed. The judicial Commissioner set aside the decree and remanded the case observing that the plaintiffs having failed to pay court-fee on their original claim of Rs. 3,000/- were, if they succeeded in the suit on remand, entitled to have the decree in favour on their initial claim. Their Lordships of the Privy Council disagreed with this view and held that the court-fee paid on a valuation of Rs. 19,991/- sufficiently covered the appeal as a whole including the claim of the defendants on the one hand and the smaller claim of the plaintiff on the other. We are unable to appreciate how this decision has any bearing on the question whether the defendant in appeal against a preliminary decree for an account against him is entitled to alter the valuation initially made by the plaintiff in the suit. This question did not fall to be determined before their Lordships of the Privy Council. Mr. Lalit also contended that in a subsequent judgment of this Court a view different from the one which was expressed in Potchalal's case, 30 Bom LR 1284: AIR 1928 Bom 476 has been expressed and Mr. Lalit placed reliance on Vershi Kanji v. Kaku Kanji, 37 Bom LR 148: AIR 1935 Bom 212. That was a case which was decided by Mr. Justice Murphy and Mr. Justice Sen. It does not appear that Mr. Justice Murphy dealt with the question of court-fee. Mr. Justice Sen alone dealt with the question of court-fee payable on the memorandum of appeal. In that case the subject-matter of the suit was valued in the trial Court by the plaintiff at Rs. 5,450/- and a decree was passed in favour of the plaintiff. The defendant appealed to the High Court and valued the claim at Rs. 200/- and Counsel for the plaintiffs raised an objection to the maintainability of the appeal without payment of court-fee on a valuation of Rs. 5,450/-. Mr. Justice Sen relying upon the observations of their Lordships of the Privy Council in 31 Bom LR 841: AIR 1929 PC 147 and following the judgment of the Madras High Court In Re: Venkatandam, ILR 56 Mad 705: AIR 1933 Mad 330, held that the decision in 30 Bom LR 1284: AIR 1928 Bom 476 must be held to be over-ruled by the Privy Council. We may observe that the decision in ILR Mad 705: AIR 1933 Mad 330 has been overruled by the subsequent judgment of the same High Court. In ILR 1938 Mad 598: AIR 1938 Mad 435 to which we have already referred, and the observation of the Privy Council in Faizullah Khan's case, 31 Bom LR 8u41: AIR 1929 PC 147 in our judgment, have no bearing on the question which falls to be decided before us. We, therefore, with respect cannot agree with the view taken by Mr. Justice Sen in 37 Bom LR 148: AIR 1935 Bom 212.
6. Our attention was also invited to a judgment of the Patna High Court in Deoji Goa v. 396) (SB). In our view that case does not support the contention raised by Mr. Lalit and goes against him. The majority view of the Full Bench was that in a case falling under Section 7(iv)(f) of the Court-fee Act, the defendant preferring an appeal from the preliminary decree should not be permitted to value his appeal at any thing less than the valuation in the plaint (provided of course that he is appealing from the whole decree), unless he can demonstrate that there is a valid ground for holding that the plaint was deliberately overvalued.
7. It is true that the Rangoon High Court in C.K. Umar v. C.K. Ali Umar, ILR Rang 165: AIR 1931 Rang 146 and the Allahabad High Court in Chunni Lal v. Sheo Charan Lal : AIR1925All787 , appear to have taken the view that the defendant is not bound by the valuation made by the plaintiff in a suit for accounts when he appeals against a preliminary decree passed against him, and he is at liberty to value the appeal, for paying court-fee, at whatever amount may seem to him to be approximately correct. We have carefully considered the grounds which appealed to the Court in : AIR1925All787 and ILR Rang 165: AIR 1931 Rang 146, and we are of the view that having regard to the phraseology used in Section 7(iv)(f) of the Court-fees Act, the privilege of fixing the subject-matter of a suit for accounts is with the plaintiff and it is not open to the defendant in an appeal against the preliminary decree for accounts to alter the valuation made by the plaintiff of the subject-matter for purposes of court-fee. On that view, we must hold that the defendant has not paid adequate court-fee on the memorandum of appeal.
8. We adjourn the hearing for one month and call upon the defendant to pay the court-fee payable by him on the Memorandum of appeal.
9. Order accordingly.