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C.L. Basra Vs. Pearey Lal Basra and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberApplication No. 110 of 1957
Judge
Reported inAIR1960All590
ActsUttar Pradesh Court Fees Act - Sections 6A and 6B; Code of Civil Procedure (CPC) , 1908 - Sections 115 - Order 26, Rules 9, 10 and 10(3)
AppellantC.L. Basra
RespondentPearey Lal Basra and anr.
Appellant AdvocateK.B. Sinha, Adv.
Respondent AdvocateK.S. Verma, Adv. for Opposite Party No. 1 and ;Junior Standing Counsel for Opposite Party No. 2
DispositionRevision dismissed
Excerpt:
civil - revision of decision of subordinate court - section 115 of code of civil procedure, 1908 - suit for possession of house - rejection of commissioner's valuation - court-fee calculated on rent likely to fetch for period of 20 years instead of current cost of construction less depreciation - no material irregularity. - - according to the plaintiff, the commissioner had failed to make an allowance for the depreciation of the building and it was urged that the valuation for both the purposes should be fixed at rs. kirpa ram brothers air1934all620 still holds good and the change in law has not affected its application to the class of cases covered by this ruling. no revision therefore lies in the high court from an order of the court below calling upon the plaintiff to make good the.....mathur, j.1. this case has been listed before us for hearing on a reference made by a single judge, who was of opinion that there was certain conflict in earlier decisions of this court. he not only referred the case for decision by a larger bench but framed two questions which had to be decided. these questions are as below:(1) where there is an appeal under section 6-a and the appellate court decides it, is its decision a case decided or not, and will a revision lie against that decision or not? (2) in a case where deficiency is objected to by the appellant, but the court holds that there is no deficiency; has the defendant any right of revision to this court? in the second question it has not been indicated as to which court recorded the finding that there was no deficiency in.....
Judgment:

Mathur, J.

1. This case has been listed before us for hearing on a reference made by a single Judge, who was of opinion that there was certain conflict in earlier decisions of this Court. He not only referred the case for decision by a larger Bench but framed two questions which had to be decided. These questions are as below:

(1) Where there is an appeal under Section 6-A and the appellate court decides it, is its decision a case decided or not, and will a revision lie against that decision or not?

(2) In a case where deficiency is objected to by the appellant, but the court holds that there is no deficiency; has the defendant any right of revision to this Court?

In the second question it has not been indicated as to which Court recorded the finding that there was no deficiency in court-fee: was it the appellate court deciding the appeal under Section 6-A? In case the application in revision is moved against the order of the trial court, the second question shall amount to whether the defendant can challenge by way of revision the order of the trial Court holding that there is no deficiency in court-fee? Such a question does not arise in the present case and it is not necessary to express any opinion thereon, though, of course, certain observations to be made hereinafter will suggest how this question would have been decided had it been directly in issue. But if the finding contemplated by the second question is one recorded in the appeal under Section 6-A, the question shall cover one of the instances to be governed by the first question. In such a case the two questions can be re-drafted as below :--

(1) Does the decision of an appeal preferred under Section 6-A of the Court Fees Act amount to a case decided as contemplated by Section 115 of the C. P. C.?

(2) Does a revision lie against this decision? If so, can the order be revised at the instance of the plaintiff only, or of the defendant and Chief Inspector of Stamps also?

Incidentally it may be mentioned that the decision on the above questions shall govern revisions against an order passed in revision under Section 6-B of the Act also.

2. The facts of the case are simple. Thepresent application in revision under Section 115of the Code of Civil Procedure arises out of asuit which was instituted by C. L. Basra, plaintiff, for possession of the lower storey of a houseused as shop, after ejectment of his son, Pearey Lal Basra, defendant. Plaintiff valued the suit for purposes of jurisdiction and also court-fee at Rs. 100/-. The defendant raised an objection that the suit was under-valued and the court-tee paid was insufficient. In paragraph 17 of the written statement it was mentioned that the property in question fetched a monthly rent of Rs. 15/-, and on this ground the valuation for both the purposes should be fixed at Rs. 3,600/-.

3. As the valuation of the property was to-be fixed at its market value a commission was issued to a Vakil, under Order 26 Rule 9 C.P.C., to ascertain its market value. The Commissioner assessed the valuation at Rs. 1,600/- on the basis of the cost of construction but because the valuation on the basis of 20 years' rent came to Rs. 3,600/- he took the average of the two figures and expressed his opinion that the valuation of the property could be taken to be Rs. 2,600/-. Both the plaintiff and the defendant filed objections against the report of the Commissioner. According to the plaintiff, the Commissioner had failed to make an allowance for the depreciation of the building and it was urged that the valuation for both the purposes should be fixed at Rs. 1,000/-.

At an earlier stage the plaintiff had made a statement that the shop, i.e. the property in suit, fetched a monthy rent of Rs. 20/-. It was on the basis of this statement that the defendant filed an objection that the valuation should be fixed at 20 years' rent, that is, Rs. 4,800/-.

4. The Munsif before whom the suit was pending did not record the evidence of the parties, nor did he consider the objection made by the plaintiff; but on the basis of 20 years' rent fixed the valuation of the suit, for purposes of jurisdiction and court-fee, at Rs. 4,800/-. He at the same time called upon the plaintiff to pay court-fee on this valuation of Rs. 4,800/-.

5. C. L. Basra, plaintiff, preferred an appeal before the District Judge under Section 6-A of the Court Fees Act. The Chief Inspector of Stamps being a necessary party, was impleaded in the appeal as respondent No. 2. The learned District Judge dismissed the appeal, being of the opinion that the mode of determination of the valuation was correct. The plaintiff has now invoked the revisional jurisdiction of this Court to have the order of the appellate court quashed.

6. The first point for consideration is whether the revision application is maintainable: to put it in different words, whether the decision of the appeal under Section 6-A of the Court Fees Act amounts to a case decided, and if a revision lies against the final order passed in the appeal.

7. None of the reported cases cited before us are directly applicable, but the principle laid down in the Full Bench case of Mata Prasad v. Ram Adhar Pandey : AIR1952All535 can be usefully utilised in the decision of this case. I shall make a reference to the Full Bench case later.

8. The learned Single Judge was under the impression that there existed some conflict in the earlier decisions of this Court; which, it was necessary, should be resolved by a larger Bench.I have carefully considered all these reported cases and am of opinion that the view expressed in another Full Bench case of Gupta and Co. v. Kirpa Ram Brothers : AIR1934All620 still holds good and the change in law has not affected its application to the class of cases covered by this ruling.

9. The Court Fees Act was amended during the year 1938, when a provision for appeal was made by adding Section 6-A and a provision for revision by the Chief Inspector of Stamps by incorporating Section 6-B in the Act. Prior to the amendment of the Act there was no provision tor appeal or revision in the Court Fees Act, and the revisions were governed purely by Section 115 C. P. C. No revision lay against an interlocutoryorder; and the question naturally aro.se whether the decision by the trial Court on an issue with regard to court-fee did or did not amount to a case decided which could enable the parties to agitate the matter before the High Court by way of revision. This question was considered by the Full Bench in : AIR1934All620 and it was held:

'A mere decision as to the amount of the court-fees payable docs not amount to a 'case decided' nor is it necessarily an irregularity in procedure or illegality or a refusal to exercise jurisdiction. No revision therefore lies in the High Court from an order of the court below calling upon the plaintiff to make good the deficiency in the amount of the court-fees paid !by him.'

It may here be mentioned that this view was in comformity with the opinion expressed in many earlier Full Bench decisions, and I may add with respect, correctly expounds the law as contained in Section 115 C. P. C. The law as laid down in : AIR1934All620 will thus hold good for so long as the Section is not amended by the Legislature though, of course, it may be possible for a person, whether a party to the proceeding or not, to challenge the order by way of revision, if permissible under some other enactment. In such cases the maintainability of the revision shall depend not upon Section 115, C.P.C. but upon the provisions of the other enactment.

10. The correctness of this view in the changed circumstances was doubted in Sm. Ahmadi Begum v. Sm. Kulsumun Nisa : AIR1952All644 , wherein Agarwala, J. pronouncing the judgment of the Bench observed that

''the ratio decidendi of this Full Bench decision is, to some extent, shaken by the altered position under the amended Court Fees Act',

and in view of Sections 6-A and 6-B of the Court Fees Act, 'the order demanding court-fee may be said to be case decided'. The words ''to some extent' and 'may be said to be' are of great significance and will make it clear that Agarwala, J. never expressed an opinion that the Full Bench decision was no longer in force or that a final opinion was being expressed on the point. It may further be noted that the order was passed on an assumption that the order of the court below was a 'case decided'. Similarly, in Mt. Mohri Kunwar v. Keshri Chandra : AIR1941All298 , it was made clear that it was not necessary to express any final opinion upon the contention whether a case shall be deemed to have been decided within the meaning of Section 115 C.P.C. when only the question of court-fee had been considered.

A contrary view, which I may say is on the lines of the Full Bench case of : AIR1934All620 was expressed in Abdul Ghani v. Vishunath : AIR1957All337 where Desai and Beg JJ. held that the trial Court deciding that court-fee should be paid on the valuation determined did not amount to its deciding a case within the meaning of Section 115 C. P. C. This case was followed by Srivastava J. in Kanahia Lal v. Ram Kishan : AIR1957All339 .

11. There now remain only two other cases to which our attention was drawn by the parties to the proceeding. They are Hafiz Mohammed Isbaq v. Chief Inspector of Stamps, U. P. AIR 1947 All 340 and the Full Bench case of : AIR1952All535 was referred to above. In both, the order challenged in revision was not an interlocutory order but an order of a revisional or appellate court finally disposing of the proceeding before it. In AIR 1947 All 340 the plaintiffs moved an application in revision under Section 115 C.P.C. against the order passed by the District Judge in a revision preferred by the Chief Inspector of Stamps under Section 6-B of the Court Fees Act; while in : AIR1952All535 the order of the appellate court remanding the suit to the trial court for rehearing was challenged by way of revision.

12. From the above, it will appear that this Court has never departed from the view that no case i.s decided when the trial court merely decides an issue on court-fee; but as far as the appellate or revisional court is concerned the appeal or revision is disposed of completely when the question of court-fee, the only point raised in that proceeding, is finally decided and for that reason the case i. e, the appeal or revision, has been decided.

13. Before the incorporation of Sections 6-A and 6-B in the Court Fees Act there was no provision in the Act nor in any other enactment, lor an appeal or revision against the order of the trial court directing a person to pay additional court-fee or holding that the court-fee paid was sufficient. The order being non-appealable, revisions were governed by the general law i.e. Section 115 C.P.C. But after the amendment the plaintiff or any person called upon to make good the deficiency in court-fee can prefer an appeal under Section 6-A of the Court Fees Act, and the Chief Inspector of Stamps can if the question of deficiency was raised by an officer mentioned in Section 24-A move a revision under Section 6-B of the Act, before the Court to which an appeal lay from a decree in the suit or appeal.

The only point which can be challenged in such an appeal Or revision is whether the trial court had passed a proper order on the question of court-fee; and when the Question is decided by the appellate or revisional Court, one way or the other, the appeal or revision is finally decided and there remains no other issue pending for decision in such appeal or revision. In other words, when the question of court-fee is decided in an appealunder Section 6-A or in a revision under Section 6-B the case, namely, the appeal or revision, is finally decided and for all purposes, including Section 115 C.P.C., it amounts to a 'case decided'.

14. To sum up after the question of court feehas been decided by the trial court, there is no 'case decided' which can entitle the parties to make an application in revision under Section 115 C.P.C. But on feeling aggrieved the person called upon to make good the deficiency, and no other person, can prefer an appeal under Section 6-A of the Court Fees Act, and the Chief Inspector of Stamps can, in certain circumstances detailed above, move a revision under Section 6-B.

After the appeal or revision has been decided by the higher court, that decision shall amount to a 'case decided' and all the parties to that proceeding, namely, the appeal under Section 6-A or revision under Section 6-B, can move an application under Section 115 C.P.C., considering that none of these orders are appealable provided that the court deciding the appeal or revision had exercised a jurisdiction not vested in law, or had failed to exercise jurisdiction so vested, or acted illegally or with material irregularity in the exercise of jurisdiction. The present revision is against an order passed in appeal under Section 6-A of the Court Fees Act and is, therefore, maintainable, provided that there was any defect in the exercise of jurisdiction, as detailed above.

15. The reply to the questions re-drafted in the beginning of this judgment is thus in the affirmative, namely, that the decision amounts to a case decided and a revision under Section 115 C.P.C. lies, at the instance of the plaintiff, defendant or Chief Inspector of Stamps, provided that the defect pertains to the exercise of jurisdiction.

16. With regard to the scope of Section 115 C.P.C. there no longer exists any controversy. The Privy Council bad laid down the principles in many cases commencing from Amir Hassan Khan v. Sheo Baksh Singh, 11 Ind App 237 which were approved of by the Supreme Court in Keshardeo v. Radha Kisen : [1953]4SCR136 . The scope of this Section was also considered by the Supreme Court in Chaube Jagdish Prasad v. Ganga Prasad : AIR1959SC492 .

17. Section 115 C.P.C. empowers High Courts to interfere, in exercise of their revisional jurisdiction, in a 'case decided' by a subordinate court, in which no appeal lies, if the subordinate court appears to have exercised jurisdiction not vested in it by law, or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. While deciding whether the subordinate court had exercised jurisdiction not vested in it by law or had failed to exercise jurisdiction so vested, High Courts can go into questions of fact to find out if the subordinate court had or had not the jurisdiction to pass the order.

But with regard to Clause (c) of Section 115 C.P.C., whether the subordinate Court had acted illegally or with material irregularity in the exercise of jurisdiction, the powers of High Courts are much restricted. They cannot interfere even if the subordinate court had taken a wrong, may be perverse, view of law or facts. What is necessary is that the erroneous decision must pertain to the exercise of jurisdiction, i.e. to a procedure and the error amounts to illegality or a material irregularity. Where a procedure has been prescribed that procedure has to be followed; but in other cases it is necessary that the Court should not act arbitrarily and follow the well established principles applicable to the matter in issue,

In other words, if the procedure followed in recording the finding is arbitrary or against the well established principles, High Courts can interfere to set aside illegal orders. However, where it is possible for the subordinate court to exercise jurisdiction in more than one manner, it cannot be said that it had wrongly exercised the jurisdiction or followed a wrong procedure when it applied one rule which may not be considered to be most appropriate. That will not be an instance of committing an error amounting to an illegality or material irregularity in the exercise of jurisdiction.

18. Coming to the facts of the present case, what the learned Munsif did was to fix the market value of the building at the rent likely to be fetched for a period of 20 years, i.e. 20 years' rent, and not to adopt the alternate method of assessing the market value on the current cost of construction less depreciation. This procedure was confirmed by the District Judge in appeal. Consequently if the Munsif is found to have acted illegally or with material illegality in the exercise of jurisdiction, the District Judge shall be held to have committed a similar illegality or irregularity and the High Court would be justified in setting aside the orders of both the District Judge and the Munsif.

19. The suit being for possession, court fee was payable under Section 7(v)(II) of the Court Fees Act, i.e. on the market value of the building. The term 'market value' has not been defined in the Act. and for this reason it can be determined in any manner considered proper. Strictly speaking, market value of a building cannot be taken to be the cost of its construction less depreciation. If buildings are in great demand and there is paucity of accommodation, people may be willing to pay a much higher value. But if there is no demand for buildings, for example, at bill stations like Mussoorie, the market value thereof i.e. the price at which people are willing to purchase them, would be less than the cost of construction less depreciation.

The market value will thus greatly depend on the supply and demand for building i.e. on a fluctuating factor. It is consequently difficult for parties to the proceeding to adduce evidence on the market value of a building, and for the courts to lay down how the market value should be calculated. It is for this reason that the cost of construction less depreciation is often regarded as a safe mode of computing the market value of a building. The market value can also be determined by other modes, for example, any rule framed by the Government or a rule approved of by the Courts of law, or any usage or custom prevalent in the area and having the force of law.

From a decision of the Custodian General of Evacuee Property in Mst. Aislia Bi v. Custodian of Evacuee Property, Bhopal, Case No. 27 of the Killings of the Custodian General Volume I by Bhawani Lal and Harbans Lal Mittal, it appears that the Evacuee Department regards 20 years produce as a fair estimate of market value of a house: in fact, as mentioned therein, at numerous occasions value of a house was fixed at 25 to 30 years' rent. When a quasi-judicial tribunal has adopted the rule of assessing the valuation at 20 times the annual rent, the subordinate courts could adopt this rule, all the more, when for Government buildings rent is fixed on almost a similar basis.

In Uttar Pradesh annual rent of State owned residential buildings is invariably fixed at 6 per cent, of the valuation of the super-structure (cost less value of land). If this figure is taken as the guide, 16 2/3 times the annual rent shall be the valuation of the building alone. When the Munsif and also the learned District Judge determined the market value of the building including land at 20 times the annual rent, it cannot be said that they were in the wrong. In any case, that will not be a ground for interference by this Court.

20. It was, however, urged on behalf of the plaintiff that there was non-compliance of Order 26, Rule 10 C.P.C. and for that reason the order was one which should be interfered with by this Court. Sub-rule 2 of Rule 10 gives power to the Court to examine the Commissioner, if necessary, while under Sub-rule 3, the Court can direct further enquiry as may be considered necessary, if it is dissatisfied with the proceedings of the Commissioner.

21. The Commissioner had assessed the value of the materials of the building at Rs. 1,600/-. This is apparently an under-estimate specially when it is found that the rent at which the building was let, according to the plaintiff himself, is Rs. 20/- per month i.e. Rs. 240/- per annum. The valuation so assessed by the Commissioner comes to 6-2/3 years' rent, which is very low. During the present times accommodation including shops are in great demand, and can easily be sold for an amount exceeding the cost of construction.

Further the suggestion of the Commissioner to fix the market value as the mean of the valuation so determined and 20 years' rent cannot be approved of by the courts of law. In these circumstances, there were justifiable reasons for the subordinate courts to fed dissatistied with the report of the Commissioner and to act under sub-rule 3, or in the alternative to fix the market value at 20 years' rent.

22. When the subordinate courts had not committed any illegality or material irregularity in determining the market value of the building, and the Court fee payable on the plaint, this Court cannot interfere with the order passed by them. In other words, the revision application has no force and it is hereby dismissed with costs.

Beg, J.

23. I agree with the conclusions arrived at by my learned brother, but I would like to add a few observations.

24. The second question referred to by the learned single Judge does not really arise in the present case. The first question referred by the learned single Judge to the Bench runs as follows:

'Where there is an appeal under Section 6-A and the appellate court decides it, is its decision a case decided or not, and will a revision lie against that decision or not?'

Though the question referred to is a single question, it can for the purpose of discussion be broken up into two portions as follows:--

'(I) Where there is an appeal under Section 6-A and the appellate court .decides it, is its decision a 'ease decided' or not?

(2) Where there is an appeal under section. 6-A and the appellate court decides it, will a revision iie against that decision or not?''

AS the two portions of the question require a different approach, I think it would be better to take up these two portions separately and to discuss each of them independently.

25. In the beginning I shall take up the first portion which is incorporated in question No. 1 formulated above. This part of the question as framed by the learned single Judge presumes that in the case there has been an appeal under Section G-A and the appellate court has decided the appeal. The question that arises for determination in respect of this aspect of the matter is whether a case has been decided by the appellate court or not. I am of opinion that this part of the question will have to be answered in the affirmative.

We have to remember that the question referred to by the learned Single Judge is not as to whether the order of the trial court will amount to a 'case decided' under Section 115 ot the Code of Civil Procedure. That question is a separate question. We are not concerned with that question at this stage. That question has not been referred to us. I, therefore, retrain from giving any expression of opinion on that aspect of the matter, The sole question that has been referred to us is whether the order of the appellate court will amount to a 'ease decided'. I, therefore, confine my agreement with the judgment of my learned brother to this point only.

26. So far as this particular point is concerned the learned single Judge, who has referred the question to us, has cited a number of authorities in the referring order, and after reviewing them he has observed that there is a difference of authority on this point in this Court. I have perused all the authorities cited by him in the referring order. An examination of these authorities, however, indicates that there has been no difference in the opinion of this Court at any stage. I find that not one of them relates to a case in which the final order passed under Section 6-A (i.e. an order passed in appeal after the amendment of the U. P. Court Fees Act), was brought before this Court in revision. Under the circumstances the specific question that is before us never arose in any of those cases.

27. An analogy to the situation arising in the present case is, however, found in the Full Bench case of this Court reported in : AIR1952All535 This is a case decided by a Full Bench of Five Judges of this Court. In this case the facts were that the trial court had passed an order under Order 7, Rule 10, C.P.C. returning the plaint to be presented to the proper court. That order was set aside by the appellate court which had remanded the suit to the trial court. A revision was filed in this Court against the appellate order and the question that arose before the Full Bench case was whether the order of the appellate court amounted to a ''a decision of a case' and would be open to revision by the High Court.

The Full Bench in that case, after reviewing the previous authorities of the Chief Court of Avadh as well as of the Allahabad High Court, held that the order of the appellate court constitutes a decision of the case which could and should be regarded as a separate proceeding with a separate record, and even if the rule against revision of interlocutory orders is considered to be sound, the decision of the issue which comes! up before the appellate court cannot be put on the same footing as its disposal by trial court, where the question of jurisdiction is nothing more than one of the questions involved in the whole suit.

Although the facts in the present case are different and the present revision has sprung out of a court fee order and not out of an order returning the plaint to be presented to the proper court, the principle laid down in this Full Bench case, in my opinion, should be applicable to the present case. Once an appeal is filed from the order of the trial court relating to court fee, it can be held that the court fee matter assumes a separate aspect and a proceeding arising out ot that part of the case in appeal substantially amounts to a separate proceeding. When, therefore, the court disposes of that proceeding, the separate proceeding that is before it terminates altogether and nothing remains before that Court. Applying, therefore, the principle that was laid down in the Full Bench case cited above, I am of opinion that the order of the appellate court should be regarded as a 'case decided' within the terms of Section 115 of the Code of Civil Procedure. This would be my answer to the first part of the question referred to a Bench.

28. So far as the second portion of the issue is concerned, it raises the question whether a revision would lie against the decision of the appellate court or not. In my opinion, the answer to this question, would depend on the question whether the order against which the revision is filed fulfils the conditions laid down by Section 115 of the Code of Civil Procedure. Section 115 ot the Code of Civil Procedure lays clown two conditions before a revision can lie to this Court. The first condition is that the order against which revision is sought to be filed should amount to a 'case decided.' The second condition is that in passing the order the Court against whose order a revision is filed should have exercised a jurisdiction not vested in it by law, or should have failed to exercise a jurisdiction so vested in it, or should have acted in the exercise of its jurisdiction illegally or with material irregularity. So far as thefirst condition, namely that the order of the lower court should amount to a 'case decided' is concerned, that would, as I have already observed while answering the first part of the question, be taken to be fulfilled when the revision is directed against the appellate order of a court passed under Section 6-A of the Court Fees Act.

So far as the second condition is concerned 1 am of opinion that the fulfilment of this condition would depend upon the particular circumstances of each case. The aforementioned circumstances relating to the second condition, are enumerated under Sub-clauses (a), (b) and (c) of Section 115 of the Code of Civil Procedure. If the requirements contained in any of these sub-clauses are fulfilled, then a revision would lie to this Court. If, on the other hand, the requirements contained therein are not fulfilled, then, in my opinion, a revision would not lie.

29. I have already held that in the present case the order of the appellate court does amount to an order deciding a case. I am, however, ot opinion that the order of the appellate court in the present case does not fulfil the requirements of any of the Sub-clauses (a), (b) or (c) of Section 115 of the Code of Civil Procedure, and the present revision is, therefore, not maintainable. Learned counsel for the applicant has conceded that the present revision does not attract the provisions, of Sub-clause (a) of Section 115, C.P.C. In other words, it does not relate to a case in which the subordinate court has exercised a jurisdiction not vested by law.

He has also very rightly conceded that the present revision does not arise out of a case in which the lower court has failed to exercise a jurisdiction so vested i.e. a case envisaged in Sub-clause (b). The particular Sub-clause on which the learned counsel has relied is Sub-clause (c). This relates to a case where the Court had acted in the exercise of its jurisdiction illegally or with material irregularity. In Naravan Sonaji v. Sheshrao Vithoba AIR 1948 Nag 258 (FB), Bose, J. in his referring order observed that the words 'illegality' and 'material irregularity' do not cover either errors of fact or law, He further observed that they do not refer to he decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors ot either law or fact after the formalities which the law prescribes have been complied with. The aforementioned observations of Bose, J. were cited with approval in a judgment of the Supreme Court : [1953]4SCR136 . In the present case, therefore, the sole question that has to be decided is whether in fixing the valuation at Rs. 4800/- the trial court committed any illegality or material irregularity of procedure.

30. The court fee in the present case was required to be paid under Section 7, Sub-clause (v) (II) which lays down that the court fee on a building is to he paid on the market value of the building. The trial court took Rs. 20/- per month to be the rental of the property and, making that the basis of valuation, fixed the market value at Rs. 4800/- assessing it at 20 years' rent. So far as the fixation of Rs. 20/- per month as the monthly rental is concerned, that cannot be considered to be any illegality or material irregularity of procedure. The fixation of rent at Rs. 20/-per month as rental was based on a statement made on behalf of the plaintiff himself. The court was, therefore, fully entitled to make that a basis of the valuation of the plaintiff's suit. So far as the order of the court relating to the fixation of market value at 20 years rental is concerned, in my opinion, that also cannot be regarded as any illegality or material irregularity of procedure. It is conceded by the learned counsel for the applicant that while the Court Fees Act lays down that the value of the house should be the market value of the building, the Court Fees Act has laid down no procedure specifying the manner of assessment of such market value. Learned counsel has also been unable to point out any rules framed by the. High Court under the Court Fees Act for fixing such market value. It cannot therefore be said that the order of the court fixing the valuation in this fashion was illegal or that it constituted a material irregularity of procedure.

31. In this connection the grievance of the learned counsel for the applicant is that a Commissioner was appointed by the Court and he had made a certain valuation. The parties had objected to the valuation made by him and the Court should have decided those objections. I fail to see any merit in this argument. The Court had no doubt. the option to appoint a Commissioner and to fix the valuation on the basis of the Commissioner's report as modified by the decision of the Court after appraising the objections relating to that report by the parties.

The Court was, however, not bound by any law or by any rule of procedure to resort to that particular procedure. It was equally open to the court to adopt quite a different basis of valuation and to fix it at twenty years rental computed at a monthly rate of rent stated and admitted by the plaintiff himself. In the present case the Court chose to adopt the latter alternative viz. rental for a period of 20 years calculated at the basis of monthly rental. The basis of rental re,stcd on plaintiff's own admission. It was, therefore, not necessary for the Court to go into the Commissioner's report or to decide the objections of the parties relating to it.

In my opinion the matter was entirely discretionary with the court. In exercising its discretion in this fashion, the court was not transgressing any principle of law or contravening any rule of procedure. In my opinion, therefore, the present revision must fail on the ground that the order complained of fails to fulfil the conditions laid down in the second part of Section 115 of the Code of Civil Procedure, which conditions are incorporated in Sub-clauses (a), (b) and (c) of the said section.

32. I, therefore, agree with my learned brother that this revision should be dismissed with costs.

BY THE COURT

33. The revision is dismissed with costs.


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