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Lakshmidas Vs. Aroorchand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 343 of 1971
Judge
Reported inAIR1972Kant61; AIR1972Mys61; (1971)2MysLJ483
ActsMysore Court Fees and Suits Valuation Act, 1958 - Sections 34, 34(2) and 34(3); Madras Court Fees Act, 1955 - Sections 36 and 36(1)
AppellantLakshmidas
RespondentAroorchand and ors.
Appellant AdvocateN. Keshava, Adv.;N.S. Chandrashekar, High Court Govt. Pleader
Respondent AdvocateA.T. Vijayarangam, Adv.
DispositionPetition allowed
Excerpt:
.....authority to examine the appeal on merits treating the appeal filed as in time. karnataka value added tax act, 2003 [k.a. no. 30/2005] section 38(1) & karnataka value added tax rules, 2003 rule 48(4):[d.v. shylendra kumar, j] computation of time - assessment order passed by the assistant commissioner of commercial taxes -appeal under section 62 to the appellate authority - computation of period of limitation plea against dismissal of appeal as barred by limitation - held, the last date for presentation of the appeal being a holiday and the appeal presented on the very next day, should be taken to have been filed within the period of limitation in the wake of the provisions of section 10 of the mysore general clauses act, 1899. the question of filing an application..........1000/- and court-fee of rs. 75/- is paici thereon under section 34 of the mysore court fees and suits valuation act, 1958.'it appears that the defendants contended that the valuation made therein was not correct and accordingly several issues were raised on the pleadings, but issue no, 3 is the issue with which we are concerned which reads:'whether the suit is undervalued for the purpose of jurisdiction and court-fee and the suit is beyond the pecuniary jurisdiction of this court?'on this issue, the learned trial judge has recorded the following findings:'the plaintiff is directed to value his suit in accordance with his sworn testimony contained in the affidavit dated 31-1-1938 or as mentioned in his deposition. the plaintiff is given one week's time to value his suit as stated.....
Judgment:
ORDER

H.B. Datar, J.

1. The plaintiff is the petitioner in this revision petition. O. S. No. 22 of 1968 has been filed by him for accounts of the dissolved partnership firm known as Aroorchand Shamsnnder of which the plaintiff was one of the partners. In paragraph 11 of the plaint the valuation of the suit has been given and it reads thus:

'The plaintiff is prepared to pay the court-fee due on his share of the profits, after the same is duty ascertained. In order to initiate the taking of accounts in this suit, the plaintiff approximately estimates his share therein after all payments are made to him so far at Rs. 1000/- and court-fee of Rs. 75/- is paici thereon under Section 34 of the Mysore Court Fees and Suits Valuation Act, 1958.'

It appears that the defendants contended that the valuation made therein was not correct and accordingly several issues were raised on the pleadings, but issue No, 3 is the issue with which we are concerned which reads:

'Whether the suit is undervalued for the purpose of jurisdiction and court-fee and the suit is beyond the pecuniary jurisdiction of this Court?'

On this issue, the learned trial Judge has recorded the following findings:

'The plaintiff is directed to value his suit in accordance with his sworn testimony contained in the affidavit dated 31-1-1938 or as mentioned in his deposition. The plaintiff is given one week's time to value his suit as stated above.'

The learned Judge has also stated that the question of jurisdiction would be reserved till the plaintiff values his suit property as directed. It is the correctness of this order of the learned trial Judge that is challenged in this revision petition.

2. The learned counsel for the petitioner contends that the interpretation placed by the Court below on the provision of Section 34 of the Mysore Court Fees and Suits Valuation Act, 1958 is entirely erroneous. It was submitted that under the Act what he was expected to give was an estimate of the value of his share of partnership. When such estimate has been given, it is not open to the Court to go behind it unless it is shown that it is arbitrary. It was further submitted that the question of arbitrariness did rot arise in the present case having regard to the nature of the claim made by the plaintiff when he himself is seeking for accounts of the partnership firm and is not in possession of the accounts book. The learned counsel for the petitioner submitted that the submission made in the affidavit dafed 31-1-1968 when seeking an order of attachment could not have been relied upon. Similarly it was submitted that the statement made in the deposition could not be taken for the purpose of determining the Valuation of the suit inasmuch as the statement made in the plaint was the correct one.

3. Section 34 of the Mysore Court Fees and Suits Valuation Act, 1958 reads:

'34. Suits for dissolution of partnership:

1. In a suit for dissolution of partnership and accounts or for accounts of dissolved partnership, fee shall be computed on the value of the plaintiff's share in the partnership as stated by the plaintiff.

2. If the value of the plaintiff's share as ascertained in the suit exceeds the value as estimated in the plaint, no decree, or where there has been a preliminary decree, no final decree, shall be passed in favour of the plaintiff, no payment shall be made out of the assets of the partnership and no property shall be allotted as for the plaintiff's share until the difference between the fee actually paid and the fee that would have been payable had the suit comprised the whole of the value so ascertained is paid.

3. No final decree shall be passed, no money shall be paid and no allotment of property shall be made in favour of defendant in any such suit, for or on account of, his share of the assets of the partnership until the fee computed on the account or value of his share of the assets of the partnership is paid.'

The provisions of Section 36 of the Madras Court Fees Act, 1955 is in pari materia with Section 34 of the Mysore Act. The question similar to the one raised in this petition was raised before the High Court of Madras in the case S. Parame-swaran v. S. Sarveswaran, : AIR1960Mad260 . The Madras High Court considering the provisions of the Act has laid down the following principle.

'When the plaintiff purports to makean estimate in regard to what he wouldget on the taking of an account therewould necessarily be an element of someguess or speculation. There is bound tobe some kind of inaccuracy if one were toconsider it in relation to the actual amountthat would ultimately be found due. Butif the estimate is on the face of it a shamone or so obviously wrong or if the otherportions of the plaint make it clear thatthat is not the real estimate which theplaintiff himself had in mind it would beopen to the Court to look at the plaint andascertain what the real estimate is. Butso long as there is no other averment inthe plaint which renders the plaintiff's estimate a sham one or which shows thatthe estimate was some other amount theCourt would be bound to accept the estimate as given by the plaintiff. Realityand not the accuracy is the test for ascertaining a proper valuation under Section 36 (1),

x x x x x If the estimate were a sham estimate the Court can ask the plaintiff to make a proper estimate, But mere inaccuracy in the estimate cannot make it a sham one and therefore the Court would not be entitled to embark upon an enquiry as to what the result of the account taking will be so as to find out the real value of the relief.'

If the principle laid down in the above decision is applied to the facts of this case, it may be seen that there is no averment in the plaint which renders the plaintiff's estimate a sham one or which shows that the estimate was wrong. It may also be noted that on the face of the plaint it can-Dot be said that the estimate made by the plaintiff is either sham one or obviously wrong one. On the contrary the plaintiff has stated that he values his share approximately and after all payments made to him are taken into consideration, his share would be Rs. 1000/-. Since it cannot be said that the estimate is sham one or is opposed to the averments made in the preceding paragraphs of the plaint, the Court was not entitled to go behind the same. In arriving at the above decision, Ramachandra Iyer, J., as he then was, followed the principles laid down in 1905-1 KB 602 and 1937-1 KB 201. After considering the above decisions, the Madras High Court held that for finding out whether the valuation given by the plaintiff is correct, it is the reality and not the accuracy that counts. In my view, the principles laid down by the Madras High Court should be applied to the case on hand.

4. In a decision in : AIR1932Mad565 , Suryanarayana v. Rajah of Vizianaga-ram, it was held as under:

'The plaintiff is entitled to give the court-fee on the value he has thought fit to give to the relief sought notwithstanding that he has through mistake or inadvertence stated the value for the purposes of jurisdiction at a different figure.'

In AIR 1956 Nag 175, Dhanji Ramji v. Kalyanji Ramji, Kotwal J., as he then was, has stated:

'The question whether the relief claimed is arbitrarily valued cannot arise where the plaintiff has no material in his possession or control which would enable him to definitely evaluate his relief.'

Having regard to these authorities, it has to be held that under Section 34 of the Act, what is required to be stated by the plaintiff in the plaint is his estimate. If the estimate is on the face of it obviously wrong or if the other portions of the plaint make it clear that it is not the real .estimate, then it would be open to the Court to determine as to whether the estimate is real. In the absence of any other material in the plaint, the Court would be bound to accept the estimate as given in the plaint. Further, the question of holding that the estimate as arbitrary would not arise in most of the cases as there would be no material with the plaintiff to evaluate his relief. In my view, in the present case, as the plaintiff did not have any material in his possession which would enable him to definitely evaluate his relief and as the provisions of Section 34 (2) and (3) of the Act fully protect the interests of the State, it is not open to the Court to go behind [he estimate. In that view, the order passed by the learned trial Judge on 25th January, 1971, ordering the plaintiff to make a fresh valuation as stated therein is set aside and in its place, it is held that the court-fee paid by the plaintiff on the plaint in accordance with the provisions of Section 34 of the Act is correct.

5. As the learned Judge has not decided the question of jurisdicfion, it is open to him to decide it in accordance with law.

6. In the result, the revision petition is allowed without any order as to costs.


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