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Mahendra Singh Jaggi Vs. Dataram Jagannath - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 17 of 1977
Judge
Reported inAIR1986Ori110; 60(1985)CLT466
ActsCourt-fees Act, 1870 - Sections 5 and 7; Suits Valuation Act, 1887 - Sections 8; Orissa High Court Rules, 1948 - Rules 1 and 4
AppellantMahendra Singh Jaggi
RespondentDataram Jagannath
Appellant AdvocateParty in person
Respondent AdvocateM.M. Das, ;M.N. Das, Advs. and ;R.K. Patra, Addl. Govt. Adv.
DispositionAppeal dismissed
Cases ReferredNemi Chand v. Edward Mills Co. Ltd.
Excerpt:
.....commissioner's report is recorded. which was recommended by the pleader commissioner. patently, he was not satisfied and, therefore, he preferred the first appeal. 84,533.57 which is precisely the relief sought by the appellant in the memorandum of appeal. 84,533.57. therefore, for the purpose of jurisdiction, as well as computation of court-fees, the first appeal must be deemed to have been valued at rs. 5206.63 for the purpose of jurisdiction, as well as, computation of court-fees. it is necessary to examine the aforesaid contentions with reference to the rules of the high court of orissa, section 5 court-fees act, as well as the case law on the subject. 14. we have clearly laid down our decision on the points raised before us......custody is also preliminarily decreed, the details of which should be worked out in the final decree stage. if the parties do not comply a commissioner will be appointed on defendant's depositing rs. 50/- tentatively for taking the accounts in that respect as discussed in the judgment and the costs of the cross claim will abide the result of the final decree proceeding. it is made clear that the decree of one party is not dependant on the decree of the other.'the respondent preferred f.a. no. 40 of 1964 in this court which was disposed of on 5-8-1970 by allowing the appeal and passing the following order : --'in the result, we allow the appeal, set aside that part of the judgment and decree of the court below directing the plaintiffs to render accounts and order that the cross.....
Judgment:

1. The respondentinstituted M.S. No. 129 of 1961 in the Court ofthe Subordinate Judge, Cuttack against thethe appellant claiming for a decree forRs. 10,723.63. The basis of the claim was thatthe respondent had advanced loans to theappellant on different dates and the aforesaidamount still remained unpaid. The appellantdenied the claim 'altogether, but on the otherhand, preferred a counter claim praying for adecree on mutual accounts in his favour.Whereas, the respondent paid an ad valoremcourt-fee on the amount claimed against theappellant, the latter valued the counter-claimtentatively at Rs. 100A and paid court-feethereon.

2. By judgment dt. 9-3-1964 a preliminary decree was passed on the following terms : --

' That the suit is decreed on contest with costs against the defendant and pleader's fee at 6 1/4 per cent. P.I. and F.I. at 6 per cent P.A. At the same time the cross claim of the defendant for accounts to be rendered by the plaintiffs to account for the defendant's goods lying with the plaintiffs' custody is also preliminarily decreed, the details of which should be worked out in the final decree stage. If the parties do not comply a commissioner will be appointed on defendant's depositing Rs. 50/- tentatively for taking the accounts in that respect as discussed in the judgment and the costs of the cross claim will abide the result of the final decree proceeding. It is made clear that the decree of one party is not dependant on the decree of the other.'

The respondent preferred F.A. No. 40 of 1964 in this Court which was disposed of on 5-8-1970 by allowing the appeal and passing the following order : --

'In the result, we allow the appeal, set aside that part of the judgment and decree of the Court below directing the plaintiffs to render accounts and order that the cross claim made by the defendant in his additional written statement be dismissed with costs throughout.'

In Civil Appeal No. 471 of 1971 preferred by the appellant the Supreme Court restored the preliminary decree passed by the trial Court.

3. In the final decree proceeding a Pleader Commissioner was appointed for taking of the accounts. On consideration of his report the trial Court on 14-10-76 passed a final decree to the following effect : --

'.......it is ordered that after deducting Rs. 11552.37 p. from Rs. 16,759/- the defendant is allowed Rs. 5206.63 p. only to get from the plaintiff with profit at 10% on this amount as recommended by the Pleader Commissioner and the excess amount claimed by the defendant for the rise of prices is rejected and with this modification the commissioner's report is recorded. The plaintiff to pay to the defendant the sum of Rs. 5,34.15 p. which was recommended by the Pleader Commissioner.'

Being aggrieved by rejection of the excess amount claimed by him, the appellant preferred this First Appeal. He valued the appeal at Rs. 84,533,57 for the purpose of jurisdiction and put the valuation of Rs. 100/-for the purpose of court-fee and paid court-fee thereon. The Stamp Reporter of the Court raised objection as to the manner in which the memorandum of appeal was valued and a grossly low amount was paid as court-fee. In order to meet his objection, the appellant under his own signature filed a memo on 31-3-1977 to the following effect :-

'That as per defect No. 4 the valuation instead of valued at Rs. 84,533.57 p. it will be Rs. 534.15 being the value as per preliminary decree. As this appeal arose out of a suit for rendition of accounts as such the appeal is valued at Rs. 1007- which is the value of relief for the purpose of Court-fee. The appeal was preferred in the year 1964 as the First Appeal No. 40/1964 by the respondent out of the same matter and same parties, which was carried up to the Hon'ble Supreme Court by the appellant out of which the present first appeal arises. The first appeal of 1964 was similarly valued as of the present this appeal. The petitioner-appellant has removed all other defects.'

In view of the statement made in the memo, the first appeal was admitted on 22-3-1978. In due course the appeal came up for hearing during which the learned counsel for the respondent reagitated the questions of valuation and payment of court-fee. The Court by order d/- 29-3-84 directed that the matter be placed before the Taxing Officer of the Court for examination if for the purpose of jurisdiction the appeal could be valued at Rs. 534.15 and if court-fee paid by the appellant was sufficient. Such a direction was given in order to determine whether the first appeal according to the Rules of the High Court is to be heard by a Single Bench or by a Division Bench. On 11-5-1984 the appellant filed a memo stating the following facts : --

'That the claim of the appellant is Rs. 84,543.57 p. but as it is suit for rendition of account for the purpose of jurisdiction, the suit was arbitrarily valued at Rs. 100/- and the Final Decree was passed for Rs. 534.15 paisa and during the pendency of this appeal the same was corrected to Rs. 5206.63 paisa, but the claim of the appellant remains the same as Rs. 84,543.57 paise which is the claim of the appellant in his appeal, but as it is a suit for rendition of accounts the appellant made the valuation of the appeal for the purpose of his claim of Rs. 84,533.57 paise and for the purpose of payment of court-fee the appeal has been valued at Rs. 100.00 and the court-fee is paid accordingly thereon and after the final determination of the account of the Appeal, the appellant shall pay court-fee on the valuation to which the appellant shall be entitled to get after final discussion taken on this appeal.'

The Taxing Officer of the Court after hearing both parties came to the following conclusions : --

(i) The appeal shall have to be valued at Rs. 5206.63 both for the purpose of jurisdiction and for the purpose of court-fee.

(ii) Section 7(iv)(f), Court-fees Act is applicable to the case.

Accordingly he directed the appellant to pay the balance court-fees.

4. The appellant felt aggrieved with the order of the Taxing Officer and submitted an affidavit on 7-8-1985 objecting to the same. He did not also comply with the order of the Taxing Officer. This is how the appeal came up for orders before us.

5. The appellant who argued his case in person stated that the value of the appeal for the purpose of jurisdiction is Rs. 84,533.57. But as the suit was one for rendition of accounts and the amount in respect of which he shall be entitled to a decree is yet to be determined after disposal of the First Appeal, he correctly valued the same tentatively at Rs. 100/- for the purpose of payment of Court-fee. As and when a decree will be pased in his favour after determining the amount, he shall pay court-fee thereon before realisation in the execution proceeding. We had issued notice to the learned Advocate General of the State to assist us. Mr. R.K. Patra, Additional Government Advocate contended that the Taxing Officer of the Court arrived at the correct conclusion that this appeal shall be governed at by Section 7(iv)(f), Court-fees Act, and so court-fee has to be paid according to the amount at which the relief sought is valued in the memorandum of appeal. He further referred to Rule l (iv)(a), Rules of the High Court and urged that the order of the Taxing Officer of the Court is final and so cannot be interfered with by this Court. If the appellant felt aggrieved with the order of the Taxing Officer, it was open to him to approach the Supreme Court in appeal. In view of the contentions raised, the following points arise for determination : --

(1) Whether the valuation of the appeal is Rs. 84,533.57 in respect of which relief has been sought.

(2) Whether Section 7(iv)(f), Court-fees Act, is applicable for the purpose of computation of court-fee; and

(3) whether the order of the Taxing Officer of the Court is final according to Rule l(iv)(a), Rules of the High Court and cannot be reopened.

6. First Point: -- In the memorandum of appeal, the appellant has stated as follows : --

'That the appeal is valued at Rs. 84,533.57 paise for the purpose of jurisdiction and is valued at Rs. 100/- which is the value of relief for the purpose of court-fee.'

In the memo dt./-11-5-1984 (quoted above) the appellant categorically stated that his claim is Rs. 84,533.57 and the valuation of the appeal at Rs. 100/-, for the purpose of payment of court-fee was arbitrary. Although the final decree was passed for Rs. 5206.63 paise, yet his claim remains the same, namely, Rs. 84,533.57. With regard to valuation of a suit or appeal for the purpose of payment of court-fees, the mere form and language of a plaint or a memorandum of appeal is not the final test and to arrive at a sound conclusion the Court has to look beyond the mere form and verbiage of the plaint or memorandum of appeal and to arrive at what is the real substance [see AIR 1935 Cal 338, Gajendra Nath Saha Chowdhury v. Sulochana Choudhurani]. In (1961) 27 Cut LR 242: (AIR 1962 Orissa 102), Sadananda Sahu v. State of Orissa, a Division Bench of this Court held that the Court must take care not to be misled by the dexterity or skill of draftsmanship of the pleading but must scrutinise the real nature of the suit. The plaintiff, according to law, has to give his own valuation for the purpose of court-fees in a suit for account and in such a case, the valuation for the purpose of court-fee and jurisdiction is the same [see ILR 1968 Cut 326, Ganji Veeraswami v. Ramachandra Misra]. According to Section 8, Suits Valuation Act, in suits where court-fees are payable ad valorem under Section 7, Court-fees Act, the value as determinable for the computation of court fees and the value for purposes of jurisdiction shall be the same.

7. The appellant was awarded a sum of Rs. 5206.63 in the final decree. Patently, he was not satisfied and, therefore, he preferred the first appeal. His claim in the first appeal is Rs. 84,533.57. In other words, he expects a decree for the aforesaid amount. In whatever language or form he has couched the memorandum of appeal, particularly the jurisdiction and valuation part of it, he has sought for a relief of Rs. 84,533.57. Therefore, according to the principle of law laid down in the case of Ganji Veeraswami (supra) and Section 8, Suits Valuation Act, the value of the appeal for computation of court-fees and for purposes of jurisdiction shall be Rs. 84,533.57. It could not be valued as has been done by the appellant separately for the purpose of jurisdiction at Rs. 84,533.57 and arbitrarily at Rs. 100/- for the purpose of payment of court-fee. It must, therefore, be held in the facts and circumstances of this case that for the purpose of jurisdiction and computation of court-fee the valuation of the first appeal is Rs. 84,533.57 which is precisely the relief sought by the appellant in the memorandum of appeal. The -first point is decided accordingly.

8. Second point: -- In a suit for rendition of accounts, court-fee has to be computed under Section 7(iv)(f), Court-fees Act, according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. It has been held above that the relief sought by the appellant is actually in respect of Rs. 84,533.57. Therefore, for the purpose of jurisdiction, as well as computation of court-fees, the first appeal must be deemed to have been valued at Rs. 84,533.57 on which court-fee is payable.

The Taxing Officer of the Court in his order dated 26-7-85 came to the correct conclusion that Section 7(iv)(f), Court-fees Act, is applicable. He, however, arrived at an erroneous conclusion when he held that the first appeal is to be valued at Rs. 5206.63 for the purpose of jurisdiction, as well as, computation of court-fees. It is not understood on what basis he arrived at such a conclusion. When the appellant had obtained the final decree for Rs. 5206.63, the said amount was no longer in dispute. As a matter of fact the appellant expected a decree for a higher amount which, according to him, is Rs. 84,533.57. Therefore, the order of the Taxing Officer is partly correct and partly incorrect.

9. The principle regarding applicability of Section 7(iv)(f), Court-fees Act, to suits and appeals for rendition of accounts is no longer res integra. A Division Bench of this Court in the case of Ganji Veeraswami, (ILR 1968 Orissa 326) (supra) held that suits for rendition of accounts are governed by Section 7(iv)(f) of the Court-fees Act and court-fee is payable according to the amount at which the relief sought is valued in the plaint or the memorandum of appeal. The plaintiff shall state the amount at which he values the relief sought. This proposition is based on the theory that in a suit for accounts, it is not possible for the plaintiff to state exactly the amount to which he is entitled. That is why a preliminary decree for accounts is initially passed. Accounts of claims and counter-claims are taken during the final decree proceeding and a decree is passed for a specific amount in the final decree. When a tentative valuation is given, in the ultimate accounting, the amount due may be less or more than the tentative value. If it is for more, plaintiff cannot execute the decree for the higher amount unless he pays court-fee therefor. In AIR 1979 SC 989, Meenakshisundaram Chettiar v. Venkata chalam Chettiar, analysing Section 7(iv)(f) of the Court-fees Act, Kailasam, J. speaking for the Court held :--

'Reading this provision by itself the amount of court-fee payable in suits for accounts is according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. The plaintiff is required to state the amount at which he values the relief sought. In suits for accounts it is not possible for the plaintiff to estimate correctly the amount which he may be entitled to for, as in the present case, when the plaintiff asks for accounting regarding the management by a power of attorney agent, he might not know the state of affairs of the defendant's management and the amount which he would be entitled to on accounting. But it is necessary that the amount at which he values the relief sought for should be a reasonable estimate.'

[ Also see AIR 1959 Punj 466, L. Dharilal v. Amolak Ram.]

10. In the premises of the aforesaid decisions, it is immensely clear that a suit or an appeal for rendition of accounts is governed by Section 7(iv)(f), Court-fees Act. The second point is decided accordingly.

11. Third point: This is by far the most important point which falls for determination. By order d/- 29-3-84 this Court directed the Taxing Officer (Registrar of the High Court) to examine the points relating to valuation of the memorandum of appeal for the purpose of jurisdiction and computation of court-fee. The Taxing Officer passed his order on 26-7-85 and directed the appellant to pay deficit court-fee. The appellant has raised objection to the order passed by the Taxing Officer in an affidavit d/- 7-8-85. According to him, this Court can reexamine and review the order passed by the Taxing Officer, whereas, the contention of the learned Additional Government Advocate is that the order of the Taxing Officer is final. It is necessary to examine the aforesaid contentions with reference to the Rules of the High Court of Orissa, Section 5 Court-fees Act, as well as the case law on the subject.

12. The powers of the Registrar who is indisputably the Taxing Officer of this Court have been enumerated in Chapter V of the High Court Rules. The powers conferred upon him under this chapter are judicial in character, as will be patent from the rules, particularly Rule 4, according to which, in the absence of the Registrar or whenever the Chief Justice so directs, his powers and duties under Rule l(i) to (xiii) shall be performed by a Judge or Judges. By Rule l(iv)(a) he has been conferred with the power to dispose of all matters relating to court-fees. According to the first proviso to Rule 1, however, he may refer any matter to the Court for orders. In matters relating to court-fees, he may in his discretion refer any matter to the learned Taxing Judge of this Court. This is a settled position and undisputed, In this particular case the Taxing Officer passed the final order. As early as 1951, a Division Bench of this Court in a decision reported in AIR 1951 Orissa 8, Tankadhar Nag v. Bishnu Nag, examined an identical question with reference to the Rules of the High Court then existing (identical to the present rules) and Section 5, Court-fees Act. Jagannadhadas, J, speaking for the Court held : --

'The position of the Registrar in respect of the powers of the Court under Section 12(ii) would normally be that of an officer of the Court assisting the Court in the discharge of its' functions under the sub-section. But by the rules of this High Court, he is also placed on a higher footing. By virtue of Rule 13, Sub-rule (4) in Chap. III of the High Court Rules, he is authorised 'to dispose of all matters relating to court-fees.' This is the power of the Court itself delegated to the Registrar under Clause 38 Patna Letters Patent which by virtue of para 6, Orissa High Court Order, 1948, applies to this Court. There can be no doubt that the power, to dispose of a matter relating to court-fee is a judicial power which can be delegated to the Registrar under the Letters Patent. That the Registrar's power in this behalf is judicial is also implicit in R. 16 which requires this power of the Registrar amongst others in his absence to be performed by a Judge. Therefore, under the rules the Registrar can, if he so chooses, dispose of the matter himself or refer the matter to the Court. There is accordingly no substance in the contention that the Registrar has no power to deal with this matter. It is the lax use of the word 'taxing-officer' that has given scope for this contention.'

Another Division Bench of this Court in (1973) 2 Cut WR 1200, Raghunath Raulo v. High Court of Orissa, relied upon, AIR 1967 SC 1, Naresh v. State of Maharashtra, AIR 1959 Cal 317, Santosh Kumar v. Registrar, Appellate Side, in which reference has been made to AIR 1925 Pat 392 (FB), Krishna Mohan Sinha v. Raghu Nandan Pandey, held that the decision of the Taxing Officer (Registrar of the High Court) is the decision of the High Court on the judicial side and that order is not impugnable in a proceeding before the same Court. A similar view was expressed by Acharya, J. in a decision reported in ILR (1976) Cuttack 344, Maheswar Mallik v. Sakuntala Malikani, relying upon the Full Bench decision reported in AIR 1925 Pat 392, Krishna Mohan Sinha v. Raghu Nandan Pandey, AIR 1937 Mad 46, in re Ekanthalingaswami Koil and AIR 1953 SC 28, Nemi Chand v. Edward Mills Co. Ltd., his Lordship held that all decisions of the Taxing Officer under S. 5 Court-fees Act, are final. In AIR 1937 Mad 46 (supra) the same view was expressed with the addition that even though, the decision of the Taxing Officer is wrong it is final and unimpeachable according to Section 5, Court-fees Act.

13. It is, therefore, clear that according to the Rules of the High Court and Section 5, Court-fees Act, the decision of the Taxing Officer d/- 26-7-85 though partly wrong is final and is not open to challenge in this Court. The third point is decided accordingly.

14. We have clearly laid down our decision on the points raised before us. According to our decision on the third point, the order of the Taxing Officer d/- 26-7-85 is final and cannot be reagitated in this Court. The objection raised by the appellant cannot be sustained and is hereby overruled.


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