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Kaluram and anr. Vs. Mehtab Bai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 376 of 1957
Judge
Reported inAIR1959MP181
ActsCode of Civil Procedure (CPC), 1908 - Sections 11 - Order 41, Rule 23; Court-fees Act, 1870 - Sections 7 and 12 - Schedule - Article 17
AppellantKaluram and anr.
RespondentMehtab Bai and anr.
Appellant AdvocateD.C. Bharucha, Adv.
Respondent AdvocateM.B. Rege, Adv. for Opponent Nos. 2 and 3
DispositionAppeal allowed
Cases ReferredIn Chunnilal v. Habib Ali
Excerpt:
- - a decision may be implied in the circumstances of the case even though the question of the valuation was not distinctly raised and decided by the court. the bombay high court held that the court of the first instance could not on remand dispose of the case on any issue except the one prescribed to it and that the defendant's failure to raise the objection in the trial court and in the appellate court before the remand was mode barred him from afterwards raising that question when the case after being tried by the original court was brought up in appeal and a remand order had been made......preferred against the decision of the original court. the defendant raised the objection when the suit was remanded by the appellate court expressly for adjudication on certain issues.the bombay high court held that the court of the first instance could not on remand dispose of the case on any issue except the one prescribed to it and that the defendant's failure to raise the objection in the trial court and in the appellate court before the remand was mode barred him from afterwards raising that question when the case after being tried by the original court was brought up in appeal and a remand order had been made. it was held that the lower court had no competence on the remand made to it to entertain the objection as regards limitation.in chunnilal v. habib ali air 1916 all 213 also.....
Judgment:
ORDER

P.V. Dixit, J.

1. The facts of this revision petition are that the plaintiff-applicants instituted a suit against the opponents for partition of property belonging to a joint family consisting of the plaintiffs and the defendants. The plaintiffs claimed that the value of the joint family property was Rs. 61,000/-; that they had one-third share in the property; that they were already in possession of a house belonging to the joint family valued at Rs. 7,000/s and that the defendants were denying their right to any share in the property which was in their possession.

The plaintiffs paid a Court-fee of Rs. 10/-under Schedule II, Article 17 (vi) of the Court-fees Act. One of the objections which the defendants raised was that the Court-fee paid by the plaintiffs was insufficient and that the plaintiffs should have paid ad valorem Court-fee on the valuation of the share they claimed in the property alleged to be the joint family property. The learned District Judge of Ratlam, while dismissing the plaintiffs' suit on merits, held that the Court-fee paid by the plaintiffs was sufficient.

The plaintiffs then filed an appeal in the Madhya Bharat High Court. That appeal was allowed by a Division Bench of the Madhya Bharat High Court on 4-8-1955 and the case was remanded to the original Court for further trial. The remand order directed that

'the lower Court should allow the defendants to amend the written-statement to incorporate their pleas of limitation and adverse possession. The lower Court should also recast issues if necessary and dispose of the case according to law.'

In the appeal filed in the Madhya Bharat High Court, the question whether the Court-fee of Rs. 10/- paid by the plaintiffs in the suit or in the appeal was or was not sufficient, was not raised. When the hearing of the suit was resumed in the lower Court after making of the remand order, the defendants again raised the objection that the Court-fee of Rs. 10/- paid by the plaintiffs was insufficient.

The learned District Judge of Ratlam, relying on a Division Bench decision of this Court in Santosh v. Rama, AIR 1949 Nag 305, has held that the Court-fee of Rs. 10/- paid by the plaintiffs is insufficient and that the plaintiffs must pay ad valorem Court-fee on the valuation of their share in the property which is in the defendants' possession and from which they have been ousted.

The learned District Judge took the view that the decision of his predecessor on the preliminary issue of Court-fees did not preclude him from deciding the question again when the decision of his predecessor dismissing the suit was set aside by the Madhya Bharat High Court in appeal and the case was remanded to the original Court for further trial, and that the effect of the remand order was that the Madhya Bharat High Court set aside the findings of his predecessor on all the issues decided by him. The plaintiffs have now filed this revision petition challenging the correctness of the order of the learned District Judge of Ratlam directing them to pay ad valorem Court-fees.

2. Mr. Bharucha, learned counsel for the applicants, did not dispute that on the allegations made by the plaintiffs they were liable to pay ad-valorem Court-fees, according to the decision in AIR 1949 Nag 305, on the valuation of the share claimed by them in the property alleged to be the joint family property, which is said to be in the possession of the defendants and from which the plaintiffs have been excluded.

He, however, contended that it was not open to the learned District Judge to reopen the question of Court-fees when it had been decided earlier in the suit and when the question of the sufficiency of the Court-fees paid by the plaintiffs was not raised in the appeal which the plaintiffs had preferred from the decree of the lower Court dismissing their suit. It was said that when the Madhya Bharat High Court accepted the appeal and made an order for remand, it implied a decision by that Court that the Court-fee paid was sufficient.

In my opinion, this argument must be accepted. An order of remand implies reversal of the decision of the lower Court and reopens the whole case for retrial by the original Court except in regard to matters expressly or impliedly decided by the order of remand. Now, in the present case, there was no doubt no express adjudication in the appeal preferred before the Madhya Bharat High Court on the question of the sufficiency of Court-fees, which was paid by the plaintiffs in the suit and in the appeal before the Madhya Bharat High Court.

But the necessary implication of the acceptance of the appeal and the remand order made therein is that the Madhya Bharat High Court found the Court-fees paid by the plaintiffs as sufficient. This isclear from Section 12 of the Court-fees Act which provides that every question relating to valuation for the purpose of determining the amount of any fee chargeable shall be decided by the Court originally concerned, and that such decision shall be final as between the parties to the suit, and then goes on to say in sub-section (ii) that whenever any such suit comes before a Court of appeal, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party to pay so much additional fee as would have been payable had the question been rightly decided.

Now for the purposes of Section 12 of the Act, it is not necessary that there should be a formal or express decision. A decision may be implied in the circumstances of the case even though the question of the valuation was not distinctly raised and decided by the Court. The reason is that the Court can dispose of a suit or an appeal on merits only if it finds that the Court-fee paid is adequate, and that, therefore, when a Court gives a decision on merits without an express adjudication on the question of court-fees, it must be taken that the court has found the court-fees paid as sufficient.

The very fact that the Court accepted a plaint or a memorandum of appeal and disposed of it on merits amounts to a decision that the court-tee paid is sufficient. On the principle of 'res judicata', it is, therefore, not open to a party to raise again the question of Court-fees in the original Court after the remand of the case to it by the appellate Court.

I am supported in this view by the decision of the Bombay High Court in Dattu v. Kasai, ILR 8 Bom 535. That was a case in which objection of limitation to the institution of the suit was not urged by the defendant in the Court of first instance. It was not taken even in an appeal preferred against the decision of the original Court. The defendant raised the objection when the suit was remanded by the appellate Court expressly for adjudication on certain issues.

The Bombay High Court held that the Court of the first instance could not on remand dispose of the case on any issue except the one prescribed to it and that the defendant's failure to raise the objection in the trial Court and in the appellate Court before the remand was mode barred him from afterwards raising that question when the case after being tried by the original Court was brought up in appeal and a remand order had been made. It was held that the lower Court had no competence on the remand made to it to entertain the objection as regards limitation.

In Chunnilal v. Habib Ali AIR 1916 All 213 also it was held that upon a constructive application of the principle of 'res judicata' a party cannot raise a preliminary objection for the first time after remand by the Court when he had omitted to raise the point when the case came up in appeal before the High Court. I am, therefore, of the opinion that the learned District Judge was not competent to decide the question of the sufficiency of Court-foes on remand of the case to it by the High Court. The remand order made by the Court itself implies that the High Court held that the Court-fee paid by the plaintiffs was sufficient.

3. For these reasons, the decision dated 25-7-1957 of the learned District Judge of Ratlam is setaside and he is directed to proceed to dispose ofthe suit in accordance with law. There will be noorder as to costs of this petition.


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