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Lakhshmi NaraIn Vs. Bharat Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 163 of 1949
Judge
Reported inAIR1952P& H200
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115; Court-fees Act, 1870 - Sections 7; Suits Valuation Act, 1887 - Sections 8 and 9
AppellantLakhshmi Narain
RespondentBharat Singh
Appellant Advocate Bishan Narain, Adv.
Respondent Advocate Tek Chand, Adv.
DispositionRivision dismissed
Cases ReferredMohan Lal v. Nihal Chand
Excerpt:
.....to have been assumed by all concerned that suits of this kind were governed by section 8 of the suits valuation act, whereas, at any rate since the rules came into force in the end of 1942, the position adopted finally by the lahore high court was that such suits were governed by section 9 and the rule framed to deal with them appears clearly to indicate that there can be one valuation for court-fee made by the plaintiff and that there may be another value for jurisdiction fixed during the course of the trial by the court. on this point the case of the appellant would not) appear to be very strong in view of the statutory provisions of the proviso added to section 11 of the suits valuation act by the punjab act of 1942 to which i have referred, but it dpes not appear that this act had..........him at rs. 130/- and paid 'ad valorem' court-fee on that amount, and according to section 8 of the suits valuation act if it applied, the jurisdictional value of the suit was bound to be the same. as regards its value for court-fee the question which arises is whether the plaintiff, having once mentioned the figure of rs. 1,25,000/- in the body of the plaint, as the minimum amount which he expected to be found due to him on going through the accounts was bound by this figure and could not value his suit arbitrarily at rs. 130/-or indeed at any less figure than rs. l,25,000/-.on this point the learned counsel for the respondent has been unable to cite any authority in support of the contention that the figure mentioned by the plaintiff in the body of the plaint as the amount likely to be.....
Judgment:

Falshaw, J.

1. A revision petition and a first appeal have been filed by Lakshmi Narain as alternatives in the following circumstances. Lakshmi Narain instituted a suit in the Court of the Commercial Sub-Judge at Delhi in February 1948 against Bharat Singh respondent for dissolution of partnership and rendition of accounts. In the plaint both for purposes of jurisdiction and court-fee the plaintiff valued tne relief sought by him at Rs. 130/-and paid court-fee accordingly. As required, however, by the provisions of Order VII, Rule 2, Civil p. O., to state approximately the amount sued for, the plaintiff has said in the plaint that he expected that a sum exceeding Rs. 1,25,000/- would be found due to him on going into the accounts, and in the preliminary stages of the suit the objection was raised by the defendant that as the plaintiff had disclosed this large figure as the amount he had ill mind when he brought the suit he could not be allowed arbitrarily to value the relief sought) by him at the nominal figure of Rs. 130/- for purposes of jurisdiction and Court-fee, but must be made to value the suit at Rs. l,25,000/- for both these purposes and pay Court-fee accordingly.

This contention was accepted by the learned Sub-Judge who passed an order on the llth of June 1948 that the plaintiff must value the suit for purposes of jurisdiction at Rs. 1,25,000/- and also pay 'ad valorem' Court-fee on this amount. He was accordingly ordered by the 28th of June 1948 to mate good the deficiency in Court-fee. As he failed to do so an order was passed on that date rejecting the plaint under Order VII, Rule 11, Civil P. C. The plaintiff filed an appeal in the Court of the Senior Sub-Judge in which he again fixed the value for both purposes at Rs. 130/-. The objection was raised by the defendant-respondent that the jurisdictional value of the appeal was Rs. 1,25,000/- and that therefore the learned Senior Sub-judge bad no jurisdiction to entertain the appeal.

Without dealing with the question of Court-fee at all the learned Senior Sub Judge held that the Jurisdictional value of the suit had rightly been fixed by the trial Court at Rs. 1,25,000/- and that therefore he had no jurisdiction to entertain the appeal, the memorandum of appeal being accordingly returned for presentation to the proper Court. There was apparently a long delay in the disposal of the appeal and this order was passed on the 2nd of June 1949. The. appeal was presented in this Court as a regular first appeal on the 16th of June 1949 and later on the 14th of July 1949 an application was filed under Section 5 of the Indian Limitation Act. Also, on the 11th of July, 1949 a revision petition was filed against the order of the Senior Sub-Judge holding that he had no jurisdiction to entertain the appeal tiled in his Court and returning the memorandum of Appeal.

2. Two preliminary objections have been raised to the hearing of the appeal - firstly, that it Is barred by time, and secondly that, it has not been properly valued. There is no doubt that the period of 90 days, even allowing for the time taken in obtaining copies, had elapsed after the decree of the trial Court long before the filing of the appeal in this Court, but the delay is mainly due to the fact that the appeal filed in the Court of the Senior Subordinate Judge remained rending there for nearly a year before he passed his order returning the memorandum of appeal and the appeal was then filed in this Court 14 days later.

The question whether the time should be extended in these circumstances under Section 5 of the Limitation Act appears to me to depend to a very great extent on whether or not; the plaintiff was right in his original contention that he was entitled to value his suit for all purposes at Rs. 130. If in fact his valuation was correct then his appeal was properly filed in the Court of the Senior Subordinate Judge, and the latter's order returning the memorandum of appeal was wrong. The preliminary objection regarding court-fee on the appeal also seems to me to be one on which it is not possible to give any proper decision without deciding the main question in issue.

There are undoubtedly a number of authorities of other High Courts regarding the amount of court-fee which is payable on an appeal against an order rejecting the plaint under Order VII, Rule 11, Civil Procedure Code, one view, that of the Nagpur and Madras High Courts, being that the court-fee payable is 'ad valorem' on the difference between the court-fee originally paid by the plaintiff and the amount of court-fee demanded from him by the trial Court. Another view is that on such an appeal the full court-fee demanded, by the trial Court is payable.

It seems to me, however, that on this point a more reasonable and sounder view has been taken by a Division Bench in 'Amarta Lal Kumar V. Sisir Kumar', AIR 1926 Cal 427, which relates to a suit in which the plaintiff had valued his suit for purposes of court-fee at Rs. 60/- and the trial Court had held that he must pay court-fee on a sum exceeding Rs. 9,000/-. His plaint was rejected when he failed to make good the deficiency and he had filed an appeal in the Court of the District Judge valued in the same manner as his plaint. His appeal had been summarily rejected by the District Judge as the memorandum of appeal was insufficiently stamped, and it was held by the High Court that the appellate Court was bound to go into the question as to the true value of the properties, and that without coming to a finding on this question it could not hold that the appeal was insufficiently stamped.

It seems to me that in any case the objections regarding the court-fee and jurisdiction do notapply in the case of the revision petition, for which there is no statutory period of limitation, and although the practice of the Court is not to admit revision petitions filed after the ordinary period of limitation for appeals, this is obviously a case in which there were good reasons for filing the revision petition at a very late stage and therefore its merits should be adjudicated upon.

3. A suit for rendition of accounts falls under Section 7(iv)(f) of the Court-fees Act which reads:

'(f) for accounts according to the amount atwhich the relief sought to valued in the plaintor memorandum of appeal:

In all such suits the plaintiff shall state theamount at which he values the relief sought.'

4. The plaintiff assessed the value of the relief claimed by him at Rs. 130/- and paid 'ad valorem' court-fee on that amount, and according to Section 8 of the Suits Valuation Act if it applied, the jurisdictional value of the suit was bound to be the same. As regards its value for court-fee the question which arises is whether the plaintiff, having once mentioned the figure of Rs. 1,25,000/- in the body of the plaint, as the minimum amount which he expected to be found due to him on going through the accounts was bound by this figure and could not value his suit arbitrarily at Rs. 130/-or indeed at any less figure than Rs. l,25,000/-.

On this point the learned counsel for the respondent has been unable to cite any authority in support of the contention that the figure mentioned by the plaintiff in the body of the plaint as the amount likely to be found due to him obliged him to fix the amount at which he assessed the1 value of the relief claimed by him under Section 7(vi)(f) of the Court-fees Act, and also necessarily for purposes of jurisdiction at the same figure. On the other hand, there are cases in which a contrary view has been taken. One such case is Baihiragavri v. Gulabdas Jamnadas', decided by a Division Bench of the Bombay High Court and reported as 22 Ind Cas 71. In. that case the plaintiff had brought a similar suit for dissolution of partnership and rendition of accounts which he had valued under Section 7(iv)(f) at Rs. 130/-, and he had not merely mentioned a sum of Rs. 10,000/- in the plaint as the sum which he expected to recover, but had actually-stated that he valued his suit for purposes of jurisdiction at Rs. 10.000/-,

It was held that this valuation for purposes of jurisdiction by the plaintiff was wholly unnecessary, since the value for jurisdiction was determined under Section 8 of the Suits Valuation Act; by his valuation of the relief sought for purposes of court-fee and that the plaintiff could not be prejudiced or damnified merely because he added to the plaint a computation which it was unnecessary for him to give. It was further held that the plaintiff was entitled to fix any valuation he liked under Section 7(iv)(f) and that his plaint had been wrongly rejected by the Court. This decision was followed by Agha Haidar, j., in 'Atma Ram Charan Das v. Bisheshar Nath Dina Nath:- AIR 1935 Lah 689, where the plaintiff had valued his suit for purposes of court-fee and jurisdiction at Rs. 500/- although he had stated in the plaint that a sum of Rs. 8,000/- was due to him from the defendant. He had been, ordered to pay court-fee at Rs. 8,000/- and his plaint was rejected when he did not do so and this order was upheld in first appeal. In second appeal Agha, Haidar, J., held that it was for the plaintiff to place his own valuation and he cited with approval the Bombay decision mentioned above.

A similar view has also been expressed recently by Kapur, J., in 'N. V. Vakhabia v. Beharilal', AIR 1949 E P 372, this being a case in which the plaintiff had valued his suit for accounts at Rs. 5,100/- for court-fee and Jurisdiction, perhaps with the object of coming to this Court in firstappeal, though he had mentioned in the plaint that a sum of Rs. 10,000/- was due to him fromthe defendants. Admittedly the variation in thesecases between the plaintiffs valuation of his suit and the amount he thought was due to him was much less than in the present case, but once the principle is established that the two figures need not be identical, it does not seem to me to make any difference from a legal stand-point how great the difference is, and it is to be borne in mind in these cases that the court-fee paid by the plaintiff at the outset does not settle the matter once and for all, since at the end of the suit the plaintiff has to make up any deficiency between the court-fee paid by him and the court-fee payableon the amount ultimately found due to him.

In some parts of the Union the law is that thedecree shall not be executed until the deficiency in court-fee has been made up, but in the Punjab the law goes even further and provides that adecree sheet shall not even be prepared until the necessary court-fee has been paid and so the fixing 'by the plaintiff of an arbitrarily low value at the outset does not entail any ultimate loss of revenue. It would seem, however, from certain rules framed by the Lahore High Court in 1942 that this High Court has net regarded suits of this nature ascovered by Section 8 of the Suits Valuation Act, tout has treated them as falling under Section 9 which reads:

'When the subject-matter of suits of any class, other than suits mentioned in the Court-fees Act, 1870, Section 7, paragraphs v and vi, and paragraph x, Clause (d), is such that in the opinion of the High Court it does not admit of being satisfactorily valued, the High Court may, with the previous sanction of the Provinical Government, direct that suits of that class shall, for the. purposes of the Court-fees Act, 1870, and off this Act and any other enactment for the time being in force, be treated as if their subject-matter were of such value as the High Court thinks fit to specify in this behalf,'

A set of rules framed under Section 9 of the Suits Valuation Act was framed by the Lahore HighCourt and issued in a notification dated the 2nd of December 1941. Suits of the present kind are covered by Rule 4, Which reads:

'Suits in which the plaintiff in the plaint seeks to recover the amount which may be found due to the plaintiff on taking unsettled accounts between him and the defendant.

(ii) Suits of either of the kinds described in OrderXX, Rule 13 of the Code of Civil Procedure;Value for the purposes of Court-fee.

(a) As determined by the Court-fees Act, 1870.Value for the purpose of jurisdiction;

(b) For the purposes of the Suits Valuation Act, 1887, and the Punjab Courts Act, 1918, as valued by the plaintiff in the plaint, subject to determination by the Court at any Stage of the trial.'

It was from the last part of this rule that thetrial Court came to the conclusion that it had the power to determine the jurisdictional value of the suit and accepted the figure mentioned by the plaintiff himself in the plaint, fixed the jurisdictional value of the suit at Rs. 1,25,000/-. It seems in fact quite clear from the wording of this part of the rule that the Court had the power to do this, but it is also equally clear from the otherpart of the rule that nevertheless the plaintiffcould value his relief for court-fee as provided in Section 7(iv)(f), that is, at his own valuation, and I do not think that the learned Senior Subordinate Judge was correct in his conclusion that the value of the suit for purposes of court-fee had automatically to be raised to the valuation which the Court was entitled to fix for purposes of jurisdiction. He has observed that it has been authoritatively ruled in 'Mohan Lal v. Nihal Chand', AIR 1935 Lah 40 that the value for the purposes of jurisdiction in a suit for dissolution of partnership and its accounts must be the same as the value for the purposes of court-fee

I cannot, however, agree in regarding this case as an authoritative decision on the point in question. It was a decision by a learned Single Judge, Jai Lal, J., and the appeal arose out of a suit for dissolution of partnership and rendition of accounts which the plaintiff had valued at Rs. 100/- and in which the dispute between the parties had been referred to arbitration and an award was given whereby the plaintiff was to receive as his share of the partnership property some property valued in all at Rs. 39,000/-. The only question involved in the appeal was whether the plaintiff should be made to pay the difference in court-fee between the fee of Rs. 100/- and the fee on the amount of property given to him by the award, and it was merely observed incidentally in the course Of the judgment that it was conceded that under the provisions of the Suite Valuation Act, the value for the purposes of Jurisdiction in a suit for dissolution of partnership and its accounts must be the same as the value for the purposes of court-fee.

In other words it seems to have been assumed by all concerned that suits of this kind were governed by Section 8 of the Suits Valuation Act, whereas, at any rate since the rules came into force in the end of 1942, the position adopted finally by the Lahore High Court was that such suits were governed by Section 9 and the rule framed to deal with them appears clearly to indicate that there can be one valuation for court-fee made by the plaintiff and that there may be another value for Jurisdiction fixed during the course of the trial by the Court. Once the valuation for jurisdiction has been fixed by the Court it would seem that under no circumstances can it be changed.

Section 11 of the Suits Valuation Act has been made the subject of a local amendment in the Punjab by Act XIII (13) of 1942 which came into force on the 22nd of November 1942, and was probably drafted in conjunction with the rules issued about the same period. Section 11 deals with the procedure where objection is taken on appeal or revision that a suit or appeal was not properly valued for jurisdictional purposes and the Punjab Act XIII (13) of 1942 added the following proviso to Sub-section (1):

'Provided that in a suit for accounts the value for purposes of jurisdiction as determined by the Court at any stage of the trial shall be final and conclusive and shall not be liable to be contested in appeal or revision,'

5. Such being the case, it is clear that the decision of the learned senior Subordinate Judge returning the memorandum of appeal for presentation to the proper Court on account of lack of jurisdiction was correct, and therefore the revision petition fails. The only other question is whether we should condone me delay in flung the appeal in this Court and extend limitation, the appeal as I have already said having filed here nearly a year after the order of the trialCourt rejecting the plaint) under Order 7, Rule 11 was passed. The appeal was promptly filed in the Court of the Senior Subordinate Judge, where it remained pending for several months, and it was filed in the Court with reasonable promptitude after the order of the learned Senior Subordinate Judge was passed. The appeal was undoubtedly justified on the question of court-fee and the only question appears to be whether the appeal was filed in the Court of the Senior Subordinate Judge through a 'bona fide' mistake of law.

On this point the case of the appellant would not) appear to be very strong in view of the statutory provisions of the proviso added to Section 11 of the Suits Valuation Act by the Punjab Act of 1942 to which I have referred, but it dpes not appear that this Act had come to the notice of even the leading members of the Bar who argued the case before us, and I myself have discovered it in the course of research since the arguments in the appeal and revision concluded. In fact this amendment of Section 11 ig not printed at all in Mr. B. V. Biswanatha lyer's Edition of the Law of Court-fee in India although it was published in 1949 and the only book in which it appears to be mentioned is Chitaley's Commentary on the Court-fees and Suits Valuation Act also published in 1949. In the circumstances I consider that we should condone the delay and accept the appeal and set aside the order of the trial Court rejecting the plaint under Order 7, Rule 11, Civil Procedure Code. The revision should be dismissed and the parties left to bear their own costs in both the appeal and the revision. The parties are directed to appear in the trial Court on the 21st of January 1952.

Khosla, J.

6. I agree.


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