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Abdul Razack Saheb and ors. Vs. Syed Abdul Jaleel Saheb and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberAppeal No. 135 of 1953
Judge
Reported inAIR1954Kant62; AIR1954Mys62; ILR1954KAR299
ActsCourt-fees Act, 1870- Sections 7 and 8; Mysore Court-fees Act - Sections 4
AppellantAbdul Razack Saheb and ors.
RespondentSyed Abdul Jaleel Saheb and ors.
Advocates:Iqbal Hussein and ;T.V. Govinda Raja Iyengar, Advs.
Excerpt:
.....of the arguments it was intimated for the appellants that the intention was to limit the appeal to the 'preliminary decree',because if that was set aside the final decree would also fail......against that preliminary decree.subsequently, after taking accounts through a commissioner, a final decree was made on 16-1-53 and the present regular appeal is filed against the final decree. by this decree the plaintiffs are directed to pay rs. 17,591-5-4 to the defendants respondents. the plaintiffs 2, 3 and 4, who have now appealed, have valued this appeal at rs. 10,500/- the same value as had been put by them in the plaint in the trial court and paid court-fee un that sum.2. the appellants have been asked to pay court-fee on the amount mentioned in the decree viz., rs. 17,591-5-4. it is contended by them that as they are plaintiffs they can value the appeal in the same way as they did in the suit under section 4(iv)(f), court-fees act. it is of course clear that there is a.....
Judgment:

Vasudeva Murthy, J.

1. The Suit O. S. No. 69/48-49 on the file of the Additional District Judge, Bangalore, out of which this appeal arises, was brought for dissolution of a partnership and for taking of accounts of the same. The plaintiffs valued their claim in their plaint at Rs. 10,500/- under Section 4(iv)(f). Mysore Court-fees Act and paid Court-fee thereon. The defendants admitted the partnership but denied their liability to pay anything to the plaintiffs. They also pleaded that the latter it was who had failed to render proper accounts of the firm. A preliminary decree was passed on 19-8-1950 declaring that the firm should stand dissolved as from 19-3-48 and directing accounts to be taken. No appeal was filed against that preliminary decree.

Subsequently, after taking accounts through a Commissioner, a final decree was made on 16-1-53 and the present regular appeal is filed against the final decree. By this decree the plaintiffs are directed to pay Rs. 17,591-5-4 to the defendants respondents. The plaintiffs 2, 3 and 4, who have now appealed, have valued this appeal at Rs. 10,500/- the same value as had been put by them in the plaint in the trial Court and paid court-fee un that sum.

2. The appellants have been asked to pay Court-fee on the amount mentioned in the decree viz., Rs. 17,591-5-4. It is contended by them that as they are plaintiffs they can value the appeal in the same way as they did in the suit under Section 4(iv)(f), Court-fees Act. It is of course clear that there is a money decree now outstanding against them for a definite sum of money which they want to get rid of by this appeal and which would otherwise become conclusive without any further accounting or investigation.

3. In support of his position the learned Counsel for the appellants has relied strongly on --'Ramadass v. Appala Narasayya' AIR 1943 Mad 685 (A). That case no doubt supports the appellants and the circumstances of that case were exactly similar to those of the present case and was an appeal from a final decree. In that case Shahabuddin J. sitting alone purported to follow an earlier case of the Madras High Court in --'In re, Dhamukodi Nayakkar'. AIR 1938 Mad 435 (FB) (B), in preference to -- 'Kashiram Senu v. Ranglal Motilal' AIR 1941 Bom 242 (C), and he also relied, on certain observations of the Privy Council in -- 'Faizullah Khan v. Mouladad Khan' AIR 1929 P. C. 147 (D). He held that in the matter of valuation of an appeal under Section 7(iv)(f). Court-fees Act of 1870, (which corresponds to Section 4(iv)(f) of our Act), the plaintiff-appellant, against whom a final decree for a much larger sum than that for which he had valued his claim in the plaint against the defendant had been made had greater freedom than the defendant-appellant and could value his reliefs in the appeal also in the same manner in which he could value it in the plaint,

3A. In 'AIR 1938 Mad 435 (FB) (B)', on which he relies Leach C. J., with whom the two other members forming the Pull Bench agreed, held that Section 7 gives greater freedom to plaintiff-appellants than it does to defendant-appellants in the matter of valuing an appeal memo. He observed that when a defendant-appellant appeals against a final decree he knows exactly the value of his relief and must pay a court-fee on the amount of the decree passed against him except in cases where he appealed only against a portion of the decree. Similarly a defendant appealing from a preliminary decree for an account has ordinarily to stamp his memorandum according to the plaintiff's valuation. He thought that by compelling a defendant to follow a plaintiff's valuation hardship was not likely to result as the plaintiff would never be anxious to pay any more court-fee than was necessary.

Their Lordships approved of some earlier cases decided by the Madras High Court including --'Srinivasa Charlu v. Perindevamma' AIR 1917 Mad 668 (FB) (E) and overruled -- 'In re Venkatanandam' AIR 1933 Mad 330 (F) which had taken a different view. At page 438 the learned Chief Justice has remarked that in the case before them, according to the heading of the memorandum of appeal, the appeal related only to the 'preliminary decree' for an account though at the end of the memorandum there was a note which suggested that the appeal was from a combined preliminary and final decree passed by the appellate Court in a suit for taking of accounts; and it was impossible to state accurately what the net liability of the appellants would be on a proper taking of the accounts, accepting the contention raised in the memorandum of grounds.

His Lordship has also referred to the longstanding practice in that Court and the natural reluctance to depart from it when it was not shown that the same was against law. In the course of the arguments it was intimated for the appellants that the intention was to limit the appeal to the 'preliminary decree', because if that was set aside the final decree would also fail. Therefore the learned Judges held that they saw no objection to the appellants treating their appeal as an appeal against the preliminary decree, if they so desired, but they would have to value their relief in accordance with the valuation in the plaint. This decision cannot be said to lend much support to the conclusion arrived at in AIR 1943 Mad 685 (A).

4. In 'C. K. Umar v. C.K. Ali Umar' AIR 1931 Rang 146 (FB) (G) which was another case relied on for the appellants, the respondent hart sued the appellant in the District Court for dissolution of an alleged partnership and for accounts. She valued her share at Rs. 15,000/-. But while giving evidence she valued it at Rs. 30,000/- and on the trial Court's order she paid an additional Court-fee. The trial Court found that there was a partnership and passed a preliminary decree for dissolution, accounts and appointment of a receiver. The defendant appealed against the whole decree on the ground that the suit was barred by limitation and that there was no partnership. He stamped his appeal memorandum on a valuation of Rs. 3,000/- only.

The Full Bench of the Rangoon High Court held that in a suit for accounts under Clause (iv) (f) of Section 7, Court-fees Act the plaintiff in the trial Court and the appellant in the Court or Appeal is the person to make an estimate of the value of the relief that is claimed. Page C. J. thought that neither in -- 'Samiya Mavali v. Minammal', 23 Mad 490 (H) or in AIR 1917 Mad 668 (FB) (E) which follows it end which war, a case of an appeal by the defendant against a preliminary decree, the Madras High Court had given any reasons for holding that the value of the relief sought both in the suit and in the appeal from a decree passed therein was to be determined by the valuation which the plaintiff had put upon the relief sought in the plaint.

The intention of the Legislature in enacting Section 7(iv) was, according to him, that in cases where it is impossible 'a priori' to ascertain with accuracy the value of the relief that is sought, the plaintiff in the trial Court and the appellant in the Court of Appeal should be the 'persona designata' to make an estimate of the value of the relief that is claimed. He thought the decision of the Privy Council was conclusive on the question. The Rangoon case has no application to the present one as it was an appeal against a preliminary decree; and moreover it is opposed to a decision of our Court.

In Mysore in 35 Mys CCR 164 (I) which was an appeal against a preliminary decree in a suit for dissolution of the partnership and accounts, it has been held, following AIR 1917 Mad 668 (E) that in a suit for dissolution of partnership and accounts the plaintiff's valuation in the plaint will be the valuation also for purposes of appeal whether at the instance of the plaintiff or of the defendant unless of course if the appeal is in respect only of a portion of the suit claim.

5. In AIR 1911 Bom 242 (C) the plaintiff brought a suit for an account and paid Rs. 5/-stamp on a notional valuation. Ultimately the suit resulted in a decree against him for a sum of Rs. 6,464-7-0, He appealed against that decree and sought to pay a court-fee of Rs. 5/- on his appeal memo. Beaumont C. J. and Sen J. held that as the suit had resulted in a decree for a certain amount against the plaintiff, the appeal was not merely for an account but was an appeal against a money decree and the plaintiff must at any rate stamp his memorandum of appeal with 'ad valorem' stamp in respect of the amount of the decree. He may add a nominal amount in respect of any further relief claimed which may accrue by reason of the account being taken on a different basis from that adopted by the lower Court; but the stamp on the memorandum of appeal must cover the amount of the decree which is standing against the appellant and which he seeks to have set aside.

The appeal with which they were concerned was from a final decree. They also referred to the observations of the Privy Council in AIR 1923 PC 147 (D) and considered that those observations did not stand in the way of their coming to the conclusion they arrived at. They differed from the interpretation put on the Privy Council decision by the Full Bench of the Madras High Court in AIR 1933 Mad 330 (F). They quoted with approval the case in -- 'Kantichandra v. Radharaman' : AIR1929Cal815 though it was one of a final decree against the defendants and the defendants had appealed.

6. The Privy Council case AIR 1929 PC 147 (D) was a suit for a partnership account in which the plaintiffs had claimed Rs. 3,000/- and had valued the suit accordingly. The trial Court found that Rs. 19,000/- were due to the defendants by the plaintiffs and that no sum was due to the plaintiffs in respect of their claim for Rs. 3,000/-; the plaintiffs appealed valuing their appeal for purposes of Court-fee at Rs. 19,000/-. The question was raised whether the plaintiffs should not value their appeal at Rs. 19,000/-plus Rs. 3,000/- i.e. Rs. 22,000/-.

Their Lordships of the Privy Council held that the Court-fee already paid was sufficient. They observed that

'the amount of Rs. 19,000/- may be not only in full but largely in excess of the true sum of relief at which a sound valuation could, in the present circumstances, be said to reach and it covered the appeal as a whole including that sum on the one hand and a much smaller figure of Rs. 3,000/- on the other.'

It is this observation that has led to the difference of opinion between the Madras and Bombay High Courts. We do not think that that decision can be interpreted as laying down that the plaintiff can value his relief at the original notional or approximate figure which he mentioned in his plaint even when the claims of the parties have been settled and declared by a filial decree which the party affected must get rid of by means of the appeal.

7. The matter may also be viewed in another aspect. If the appellants secure relief in this Court by its being declared that they are not due in the sum of Rs. 17,591-5-4 to the defendants and are not entitled to recover anything from them and the appeal is dismissed, there is no provision in the Mysore Court-fees Act by which they can be compelled to pay later on any Court-fee on the substantial relief which they would have secured.

The position is different in the case of a preliminary decree as Section 8, Court-fees Act provides for Court-fee being recovered on any excess over and above the figure put in the plaint for purpose of valuation. As observed in AIR 1938 Mad 435 at p. 438 (B) it has never been questioned in the High Courts of India that a defendant appealing against a final decree should pay Court-fee on the amount decreed against him except in cases where he appeals only against a portion of the decree; see AIR 1941 Bom 242 at p. 243 (C) and : AIR1929Cal815 . And it is difficult to see anything in Section 4 (iv) (f) which would justify a difference in treatment between the case of the plaintiff and that of the defendant who is appealing against a final decree. The decision in AIR 1941 Bom 242 (C) is also in accord with the usual practice of this Court and we are inclined to follow that decision.

8. The appellants are, therefore, directed topay 'ad valorem' Court-fee on Rs. 17,591-5-4. Theyare given one month's time to make up the deficient Court-fee.

9. Order accordingly.


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