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Benudhar Jena Vs. Prabir Chandra Mazumdar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. Nos. 635 to 637 of 1981
Judge
Reported inAIR1985Ori117
ActsCode of Civil Procedure (CPC) , 1908 - Sections 15 and 115 - Order 20, Rule 16; Court-fees Act, 1870 - Sections 11; Suits Valuation Act, 1887 - Sections 7 and 11
AppellantBenudhar Jena
RespondentPrabir Chandra Mazumdar and ors.
Appellant AdvocateAshok Mukherjee and ;K.N. Jena, Advs.
Respondent AdvocateS.C. Ghose and ;U.N. Sahoo, Advs.
DispositionRevisions dismissed
Cases Referred(Shamsher Singh v. Rajinder Prashad).
Excerpt:
.....was also held at page 1344 -in view of the aforesaid decisions and the reasonings, i am clearly of the opinion that the plaintiff, in the instant case, is entitled to value its own relief. if on the materials available before it the court is satisfied that the value of relief as estimated by the plaintiff in a suit for accounts is undervalued the plaint is liable to be rejected. vimla), it has been clearly laid down as follows :we fail to appreciate what grievance the defendant can make by seeking to invoke the revisional juirisdiction of the high court on the question whether the plaintiff has paid adequate court-fee on his plaint......courts act (act xii of 1887) now in force in the state.7. point no. (ii) : under section 8 of the suits valuation act, 1887 (act vii of 1887) the value for the purpose of court-fees and jurisdiction is the same in suits for accounts coming within section 7(iv)(f) of the act. section 7(iv)(f) of the act reads as follows :'computation of fees payable in certain suits for money -- the amount of fee payable under this act (in the suits next hereinafter mentioned except suits for relief under section 14 of the religious endowments act, 1863, or under section 92 of the civil p.c. 1908) shall be computed as follows : -- (i) to (iii) xxxxx (iv) in suits -- (a) for movable property of no market value - xxxxx (b) xxx (omitted by orissa act v of 1939) (c) for a declaration decree and.....
Judgment:
ORDER

S.C. Mohapatra, J.

1. All the three revisions arise out of three suits for identical relief against the defendant who is the petitioner in the three Civil Revisions. The cause of action arose on account of the breach of an agreement dt. 23-3-1959 whereunder the monthly remuneration received by defendant as Managing Director was to be divided into four equal shares and distributed among the four executants of the agreement. It is alleged by the plaintiff in each case that after March, 1962, the defendant did not distribute the remunerations as agreed. Hence the three suits were filed for accounts. Defendant in his written statement in each suit challenged the territorial and pecuniary jurisdiction of the Court of Munsif and also the sufficiency of the court-fee payable.

2. After the issues were framed, defendantapplied for deciding the issue of territorial and pecuniary jurisdiction of the Court of Munsif as a preliminary issue. Plaintiffs raised objection of the ground that the issue is a mixed question of fact and law and should not be tried piecemeal.

3. The learned Munsif in whose Court the suits were filed being valued at Rs. 1000/-each allowed the prayer. No evidence was led and the issue was tried on the basis of the assertions made in the pleadings only. Relying upon the decision reported in ILR (1973) Cut 1336 (Mitra Shipping Agency v. Orissa Fisheries Development Corporation Limited, Tulsipur, Cuttack), the learned Munsif held that under Section 7(iv)(f) of the Court-fees Act (Act VII of 1870) (hereinafter stated the 'Act') a plaintiff has right to give his own valuation and answered the issue against the defendant. Defendant challenged the orders in the three suits in Civil Revision Nos. 581, 582 and 583 of 1979. This Court directed transfer of the suits to the Court of the Subordinate Judge who was also given direction to re-examine whether the plaintiffs were obliged to raise the valuation and pay appropriate court-fee in the light of the law applicable. The Civil Revisions were thus disposed of.

After the suits were transferred to the Court of the Subordinate Judge, the preliminary issue was heard again and was answered on the basis of the assertions made in the pleadings only. The trial court found that the valuation given by the plaintiffs was reasonable. The defendant has preferred the present Civil Revisions against the aforesaid orders of the learned Subordinate Judge in the three suits.

4. Relying on the decision reported in AIR 1979 SC 989 (A.K.A. C.T. V. CT. Meenakshisundaram Chettiar v. A. K. A. C.T. V. C.T. Venkatachalam Chettiar), Mr. Ashok Mukherjee, the learned counsel for the petitioner submitted that on the very plaint assertions the valuation given by the plaintiff in each case is undervalued and the plaints are to be rejected on that ground alone under Order 7 Rule 11(b), C.P.C. Mr. Mukherjee has fairly submitted that after transfer of the suit to the Court of Subordinate Judge, there is no lack of pecuniary jurisdiction of the Court.

Mr. U. N. Sahoo, the learned counsel for the two plaintiffs in C.R. Nos. 636 and 637 of 1981 submitted that in a suit for accounts the Court of Munsif even can give relief beyondits pecuniary jurisdiction and a plaintiff accordingly has the right to give valuation at his choice which cannot be interfered with. He has further submitted that the finding of the trial court regarding the reasonableness of the valuation given by the plaintiffs ought not to be interfered with as the scope of interference in Civil Revision is very limited.

5. On the submissions as aforesaid, the following points arise for consideration :

(i) Whether the Court of Munsif can give relief in a suit for accounts beyond its pecuniary jurisdiction?

(ii) Whether in a suit for accounts covered under Section 7(iv)(f) of the Act, plaintiff can state the value of the relief at his choice?

(iii) Whether the High Court has the scope of revisional power to interfere with the finding on valuation in a suit for accounts?

6. Point No. (i) : It is now authoritatively decided in a decision reported in ILR (1970) Cut 337 : (Srinivas Timber Yard v. Jayaram Shivaji and Sons Firm) that a suit for accounts is an exception to the ordinary rule that a Court cannot grant decree for an amount beyond its pecuniary jurisdiction. In such a suit the Court of Munsif, on account being taken, can grant a relief for an amount beyond its pecuniary jurisdiction when the final decree is passed. This decision has been followed in ILR (1973) Cut 1336 (supra). This point, however, is academic as the suits have been transferred to the Court of Subordinate Judge which has unlimited pecuniary jurisdiction under Section 18 of the Bengal, Agra and Assam Civil Courts Act (Act XII of 1887) now in force in the State.

7. Point No. (ii) : under Section 8 of the Suits Valuation Act, 1887 (Act VII of 1887) the value for the purpose of court-fees and jurisdiction is the same in suits for accounts coming within Section 7(iv)(f) of the Act. Section 7(iv)(f) of the Act reads as follows :

'Computation of fees payable in certain suits for money -- The amount of fee payable under this Act (in the suits next hereinafter mentioned except suits for relief under Section 14 of the Religious Endowments Act, 1863, or under Section 92 of the Civil P.C. 1908) shall be computed as follows : --

(i) to (iii) xxxxx

(iv) in suits --

(a) for movable property of no market value -

XXXXX

(b) xxx (Omitted by Orissa Act V of 1939)

(c) for a declaration decree and consequential relief -

xxxxx

(d) for an injunction (e) for easements

(f) for accounts according to the amount at which the relief sought is valued in the plaint or memorandum of appeal;

in all such suits the plaintiff shall state the amount at which the values the relief sought.....'

The scope, of Section 7(iv)(f) of the Act came for interpretation in the decision reported in ILR (1973) Cut 1336 (supra). It was held :

'.....That is why the clear legislativeintendment is that in this class of cases envisaged in Section 7(iv) of the Act, the plaintiff should have the unfettered right to evaluate his own relief.....'

Considering the decisions reported in AIR 1929 P.C. 147 (Faizullah Khan v. Mauladad Khan), AIR 1953 Bom 382; (Burjor Pestonji Sethna v. Nariman Minoo Todivala, (1970) 1 Mys.LJ 250; (S. Manakhi v. S. P. Bhujangilal), AIR 1956 Nag 195; (Kashinath v. Tukaram) and the observations in AIR 1958 SC 245, (Sathappa Chettiar v. Ramanathan Chettiar) it was also held at page 1344 -

'In view of the aforesaid decisions and the reasonings, I am clearly of the opinion that the plaintiff, in the instant case, is entitled to value its own relief.....'.

It is to be noted that the question of absolute right or option of the plaintiff to place any valuation whatsoever on his relief in a suit for accounts was left open in AIR 1958 SC 245 (supra). This question has since been answered by the Supreme Court in the decision reported in AIR 1979 SC 989 (supra) where referring to Section 7(iv)(f) of the Act, it has been held that although in suits for accounts it is not possible for the plaintiff to estimate correctly the amount which he may be entitled to, yet, it is necessary that the amount at which he values the relief sought for should be a reasonable and fair estimate.

Considering the scope of Order 7, Rule 11(b) Civil P.C. it has been held -

'.....This rule casts a duty on the Court toreject the plaint when the relief claimed is undervalued. If on the materials available before it the Court is satisfied that the value of relief as estimated by the plaintiff in a suit for accounts is undervalued the plaint is liable to be rejected. It is, therefore, necessary that the plaintiff should take care that the valuation is adequate and reasonable taking into account the circumstances of the case. In coming to the conclusion that the suit is undervalued the court will have to take into account that in a suit for accounts the plaintiff is not obliged to state the exact amount which would result after the taking of the accounts. If he cannot estimate the exact amount he can put a tentative valuation upon the suit for accounts which is adequate and reasonable; the plaintiff cannot arbitrarily and deliberately undervalue the relief .....there must be a genuine efforton the part of the plaintiff to estimate his relief and that the estimate should not be a deliberate under-estimation.'

Thus, the decision is ILR (1973) Cut 1336 (supra) to the effect that the plaintiff has an unfettered right to give his own valuation in a suit for accounts is not the correct exposition of law and is to be deemed to have been overruled in AIR 1979 SC 989 (supra) on this point.

Now, as the law stands, plaintiff is to value the relief in a suit for accounts coming under Section 7(iv)(f) of the Act by fair estimate of the amount for which he sues and the valuation given by him should be reasonable.

8. Point No. (iii) : In AIR 1961 SC 1299 (Rathnavarmaraja v. Smt. Vimla), it has been clearly laid down as follows :

'We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional juirisdiction of the High Court on the question whether the plaintiff has paid adequate court-fee on his plaint. Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under Section 115 of the Code of Civil Procedure is strictly conditioned by Clauses (a) to (c) thereof any may be invoked on the ground of refusal to exercisejurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint.'

This decision of the Supreme Court was considered by the Kerala High Court in a case reported in AIR 1962 Ker 84 (Vasu v. Chakki Mani) where it was pointed out that no revision will lie against the decision on the question of adequacy of court-fee at the instance of the defendant..... unless the question of court-fee involves also question of jurisdiction of the court. In this Court while considering the said decision of the Supreme Court in ILR (1968) Cut 566 : (AIR 1969 Orissa 10) (Lakhyeswar Karmi v. Padmabati Karmi), it has been held that the same not being a case under Order 33, C.P.C. would not be made applicable to a matter where the indigency of the plaintiff is challenged. In AIR 1972 SC 2379 (M. L. Sethi v. R. P. Kapur) while considering the scope of challenging the order under Order 33, Rule 1, C.P.C. it was observed :

'.....An immunity from a litigation unlessthe requisite court-fee is paid by the plaintiff is a valuable right for the defendant.'

The interpretation of Kerala High Court has been approved by the Supreme Court in a case reported in AIR 1973 SC 2384 (Shamsher Singh v. Rajinder Prashad).

From the aforesaid discussion, it is clear that the defendant has got a right to challenge the order permitting a plaintiff or appellant to sue as an indigent person which stand on a different footing. Where the question of payment of court-fee and the question of jurisdiction both are involved, the same can also be challenged in revision. However, where there is no question of any jurisdiction involved and only the adequacy of court-fee is the subject-matter of dispute, even though it involves the question of valuation, the same would not be within the scope of revision at the instance of the defendant.

This can also be considered from another angle. Where question of pecuniary jurisdiction is involved the same can be challenged evenin an appeal against the decree within a limited compass as provided in Section 11 of the Suits Valuation Act Therefore, where the pecuniary jurisdiction of the court could be challenged in revision by the defendant he is to satisfy the requirements under Section 11 of the Suits Valuation Act.

The revisional power of this Court, however cannot be invoked by the defendant for nonpayment of court-fee simpliciter.

9. In the present case, there is another hurdle on the part of the defendant. Fair estimate and reasonable valuation are questions of fact. On construction of the averments in the pleadings, the trial court has come to a conclusion that the valuation given by the plaintiff in each of the suits is reasonable. There is, therefore, no scope for interference with this finding of fact in exercise of the revisional powers.

10. Accordingly, the Civil Revisions have no merit and are dismissed. Parties to bear their own costs in these Civil Revisions.


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