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SharfuddIn Vs. M. Khadim Ali Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All807; 150Ind.Cas.1090
AppellantSharfuddin
RespondentM. Khadim Ali Khan and ors.
Excerpt:
- - it will be noted that there was no quesion before their lordships of the privy council like the present case. so far as the statement concerns final decrees it was merely an obiter dicta and it cannot be taken as dealing with a case like the present. ..according to the view of the privy council the appellant whether plaintiff or defendant can give some valuation and one cannot complain that the amount in the memorandum is not the proper amount the reason being that in suits for accounts it is impossible to say at the outset what exact amount the plaintiff will recover, and they apply this principle to appeals also......remands under order 41, rule 23, the court authorizes the appellant to receive back the full fee paid on appeal. under these circumstances i do not consider that the ruling of their lordships can be changed to apply to the entirely different set of facts in this case.11. learned counsel referred to c.k. umar v. c.k. ali. umar a.i.r. 1931 rang. 146,(f.b.). that ruling was one dealing with an appeal against a preliminary decree. the present appeal is against a final decree. there is no comparison between the two cases. learned counsel further cited this ruling on account of its reference to the ruling of their lordships of the privy council in faizullah khan v. mauladad khan a.i.r. 1929 p.c. 147. the judgment of their lordships in that ruling is not quoted but merely the observations of.....
Judgment:
ORDER

Bennet, J.

1. This is a reference by the taxink officer on the question of valuation of First Appeal No. 312 of 1933. The question which has been referred is:

Is it open to an appellant-defendant in a suit for accounts, against whom a final decree for a definite amount has been passed, to value his appeal, under Section 7, Clause (iv)(f), Court-fees Act, arbitrarily for an amount less than the amount decreed against him

2. The appeal is brought by a defendant. There was a suit for accounts and dissolution of partnership in which the lower Court has decreed the claim for the plaintiff amounting to Rupees 10,000, with costs and pending and future interest at eight annas per cent per mensem. The plaintiff was to file the necessary court-fee. The defendant has appealed asking for the relief:

That this Hon'ble Court will be pleased to set aside the decree of the Court below and to pass a decree in favour of the appellant for such sum or sums as may be found due to him on legal and proper accounting or grant such other and further relief as it may deem fit. The value of the appeal is Rs. 1,000. The court-fee paid is Rs. 107-8-0.

3. On this appeal the office noted that the stamp was sufficient according to the valuation, and a Bench of this Court ordered:

Subject to any objection as to the amount of court-fees paid, let notice go.

4. Subsequently an objection was taken by the stamp reporter as follows:

They have wrongly valued the appeal at Rs. 1,000 though they challenge the whole decree of the Court below. The appeal should be valued at the amount decreed by the Court below, i.e., Rs. 1.0,000 principal and the amount of pending interest which by calculation comes to Rs. 1,988-5-4, total Rs. 11,988-5-4. Hence the appeal should be valued at this amount and ad valorem court-fee should be paid thereon. The amount of court-fee payable is Rs. 628-8-0. Deducting Rs. 107-8-0 already paid there is a deficiency of Rs. 575 due by the appellant.

5. The report of the stamp officer was submitted to the taxing officer who called on the appellant to furnish the court-foe. The appellant objected. The taxing officer has then made a reference to the Taxing Judge under Section 5, Court-fees Act. The first objection which is taken on behalf of the appellant is that as a Bench of this Court directed that notice should issue to the respondent therefore the Taxing Judge: has no jurisdiction. Under Section 5 the jurisdiction to decide a matter of this nature is in the Taxing Judge who has been appointed by the Chief Justice in this High Court for that purpose. Learned Counsel relied on Section 28, Court-fees (Act. That section in my opinion refers to the case where the question is not raised by a reference by the taxing officer under Section 5. Section 28 applies to the case where the deficiency in court-fee is noticed otherwise and the jurisdiction then will lie in a Judge of the High Court before whom the deficiency is noticed. I may note that the Bench of this Court in directing notice to issue specifically stated that this should be subject to any objection as to the amount of the court-fees paid.

6. On the merits of his case Learned Counsel for the appellant relies on the precise language of Section 7(iv)(f), Court-fees Act. I will first deal with the language in the section. As I understand Section 7, Court-fees Act, the intention of the section is to provide a means of valuing the subject-matter of a suit or of an appeal for the purposle of payment of ad valorem court-fees. In Sub-section (i) it is provided that in suits for money the amount of fee is computed according to the amount claimed. That is, where the subject-matte is a definite, sum of money the ad valorem, fee is paid on that sum of money. The section then proceeds to deal with matters which are not so simple such as maintenance and annuities in Sub-section (ii) and for movable property other than money in Sub-section (iii), and in Sub-section (iv) we have a number of other matters which may form the subject of suits. Among these the provision in Sub-section (f) is as follows:

for accounts according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.

7. The first thing to be noticed in regard to this Sub-section (f) is that a distinction is drawn between a plaint and an appeal. It is provided in regard to the plaint that the plaintiff shall state the amount at which he values the relief sought. I understand by that that the plaintiff is given power to value at whatever amount he considers correct the relief for which he asks in his plaint. There is not a corresponding provision that in all such appeals the appellant shall state the amount at which he values the relief sought, and I consider that this omission is not unintentional. For an appeal the appellant is not given a free hand to value at whatever figure lie likes the relief in his, memorandum of appeal. It is laid down that the court-fee is to be paid on the relief sought in the memorandum of appeal but it is not provided that the appellant may value that relief at whatever figure he desires. In the case of a pllaintiff who is an appellant and whose relief has not been allowed by the Court bellow the plaintiff no doubt may in his memorandum of appeal repeat the figure for valuation which he has already stated in his plaint under the proviso in this sub-section. But in the case of an appellant who is a defendant there is not a similar provision. In the present case the defendant is a person against whom a definite amount has been decreed, Rs. 10,000, and interest on that amount. He has chosen to value his appeal at Rs. 1,000 and at the same time he asks for the decree of Rs. 10,000, and interest to be set aside in its entirety. He has not asked that the decree should be set aside only as regards Rs. 1,000. If the case for the Learned Counsel for the appellant is correct then it would have been open-to the defendant-appellant to value his appeal at merely Re. 1. The selection of Rs. 1,00.0 as the valuation of Rs. 10,000, plus interest is entirely arbitrary. In Schedule 1 it is laid down in Article 1, for a memorandum of appeal not otherwise provided for in the Act, that the valuation for ad valorem fees is on the subject-matter in dispute. It is clear to me that the subject-matter in dispute in the present appeal is the decree of Rs. 10,000, and interest against the defendant-appellant. The subject-matter in dispute being that amount I do mot see anything in Section 7(iv)(f) which indicates that the appellant may alter the value of the subject-matter. The sub-section deals with the amount at which the relief sought is valued in the memorandum of appeal, but it does not say that that relief may be subject to any arbitrary value. The relief sought is one which has a definite value, that is the setting aside of a decree for Rs. 10,000 and interest. I do not see on what principle it can be said that a subject-matter of this nature can be subject to an arbitrary valuation of Re. 1, Rs. 2, 3, 4, Rs. 1,000 and Rs. 2,000 or any other number of rupees.

8. I now proceed to examine what is laid down by their Lordships of the Privy Council in Faizullah Khan v. Mautadad Khan A.I.R. 1929 P.C. 147. That was a case in which the plaintiff Faizullah Khan had sued after dissolution of partnership for a rendition of accounts, and the plaintiff claimed a decree for Rs. 3,000 or whatever further sum was due. The defendant asked for a decree for Rs. 19,000, in his favour. The Subordinate Judge decreed nothing for the plaintiff and for the defendant Rupees 19,991. Both parties appealed. The plaintiffs asked:

Claim in appeal. For reversal of the decree against the appellants and for granting a decree in their favour for such of that amount as may be found due. Value for purposes court-fee of appeal, Rs 19,991.

9. This prayer is not very clear. What the appellants plaintiffs asked was to set aside the decree against them and to decree whatever amount might be found due to them. They did not name the Rs. 3,000 which had been named in the plaint. The Judicial Commissioner remanded the case for a fresh trial, but it is not stated whether the remand was or was not under Order 41, Rule 23. In making the remand the Judicial Commissioner found that a remand should only be granted as to the Rs. 19,000. Their Lordships of the Privy Council directed that the remand should be for the whole case. In the Court of the Judicial Commissioner a court-fee had been paid by the plaintiffs-appellants of Rs. 975 which was on the valuation of Rs. 19,991 placed by the plaintiffs-appellants on their appeal. The objection which was taken apparently by the Judicial Commissioner was that the plaintiffs should have at that stage paid some further court-fee on whatever amount might be ultimately granted to them by the Courts. Their Lordships of the Privy Council found that the order of the Judicial Commissioner was incorrect in this respect. It will be noted that there was no quesion before their Lordships of the Privy Council like the present case. The appellants had paid the full court-fee on the amount of the decree against them. In the present case the appellant has not paid the amount of court-fee due on the decree against him. I do not see on what principle it can be argued that the ruling is any authority for the claim made in the present case. The language used by their Lordships appears to me to be directed to the question of whether a plaintiff can be allowed to value his claim which has been disallowed at whatever figure he pleases. As I have already pointed out, in my view Section 7(iv)(f) docs allow a plaintiff to do so either in his plaint or in his memorandum of appeal when the relief which he claimed has been disallowed. It had been disallowed in the case before their Lordships and they held that the language of Section 7(iv)(f) did allow the plaintiff to value his relief as he pleased. In the particular case the plaintiff had valued his appeal at Rs. 19,991 and their Lordships stated:

It. is only necessary to observe that this applied to a valuation of the appeal in its entirety, that is to say, both for the purpose of reversing, the decree against the appellants and for granting the decree in their favour.

10. The ruling of their Lordships proceeded further to point out that under Section 149, Civil P.C., the amount which the plaintiff should have paid, if any, should have been recovered as laid down in that section. I may also note that under Section 13, Court-fees Act, when a Court remands under Order 41, Rule 23, the Court authorizes the appellant to receive back the full fee paid on appeal. Under these circumstances I do not consider that the ruling of their Lordships can be changed to apply to the entirely different set of facts in this case.

11. Learned Counsel referred to C.K. Umar v. C.K. Ali. Umar A.I.R. 1931 Rang. 146,(F.B.). That ruling was one dealing with an appeal against a preliminary decree. The present appeal is against a final decree. There is no comparison between the two cases. Learned Counsel further cited this ruling on account of its reference to the ruling of their Lordships of the Privy Council in Faizullah Khan v. Mauladad Khan A.I.R. 1929 P.C. 147. The judgment of their Lordships in that ruling is not quoted but merely the observations of one of their Lordships during the course of argument. So far as that observation goes it is not in favour of the appellant. It states:

In suits for accounts It is impossible to say at the outset what exact amount the plaintiff will recover. The legislature therefore leaves it open to him to estimate the amount. That is the so homo of the Act.

12. I entirely follow that principle and as I have pointed out that principle applies to a plaintiff in regard to a. relief which has not boon granted. It does not apply to a party against whom a sum of money has been decreed. Reference was also made to Bholanath v. Parsotam Das (1910) 32 All. 517. That again was a case, of an appeal against a preliminary decree, in the latter part of the ruling some reference was made to preliminary or final decrees. So far as the statement concerns final decrees it was merely an obiter dicta and it cannot be taken as dealing with a case like the present.

13. Learned Counsel relies on In re Nukala Venkatanandam A.I.R. 1933 Mad. 330. That was a suit for dissolution of partnership and settlement of areolaris and certain sums of money not staled had been decreed against the defendants. The defendants appealed and in the memorandum of appeal the valuation was stated to be Rs. 12,770-6-0 and the court-fee as Rs. 347-7-0, but the court-fee actually paid was Rs. 447-7-0. In an affidavit the appellants stated that they had not got the necessary money at the' time and therefore a. less court-fee Was paid with the idea of supplying the deficiency in court-fee afterwards. The office made no objection. The appellants themselves however later filed an application asking to revise the valuation educing it to Rs. 5,500 on which the court-fee paid of Rs. 447-7-0 would be sufficient. It is nowhere staled in the ruling whether the total amount decreed against the defendants was a larger amount than Rs. 5,500. The order of their Lordships was that the valuaiion of the appeal for the present will be regarded as Rs. 5,500. Their Lordships then proceeded to discuss the meaning of the Privy Council ruling in Faizullah Khan v. Mauladad Khan A.I.R. 1929 P.C. 147, and they said:

The view apparently taken by their Lordships is that the appellant can pay court-fee on a notional value as the first Court... According to the view of the Privy Council the appellant whether plaintiff or defendant can give some valuation and one cannot complain that the amount in the memorandum is not the proper amount the reason being that in suits for accounts it is impossible to say at the outset what exact amount the plaintiff will recover, and they apply this principle to appeals also.

14. The ruling fails to note that the observations of their Lordships of the Privy Council were made in regard to the claim of a plaintiff which had been disallowed by the lower Court and the observations were not made in regard, to an amount which had been decreed against an appellant by the lower Court. So far therefore as this Madras ruling purports to extend the meaning of their Lordships of the Privy Council to an entirely different set of circumstances I would respectfully differ from their Lordships of the Madras High Court.

15. For the respondent reference was made to Kanti Chandra Tarafdar v. Radha Raman Sirkar : AIR1929Cal815 , where it was held that an appellant-defendant must pay a court-fee on the amount decreed against him in the final, decree in a suit for accounts. That case is similar to the present. In Inayat Husain v. Bashir Ahmad A.I.R. 1923 All. 413, the plaintiff contended that he could value his claim for dissolution of partnership and accounts at whatever amount he chose. A Bench of this Court held that the plaintiff was not entitled to put any arbitrary valuation on his plaint.

16. Under tine circumstances of the present case I consider that the report of the stamp reporter is correct and that the appellant must pay the amount of deficiency reported at Rs. 575. I allow four months to the appellant to deposit this amount.


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