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M.P. Mariyan Vs. K.K. Narayanan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 526 of 1970
Judge
Reported inAIR1974Ker147
ActsCourt-fees Act, 1870 - Sections 7
AppellantM.P. Mariyan
RespondentK.K. Narayanan
Appellant Advocate Varghese Kalliath, Adv.
Respondent Advocate M. Kumaran,; T.N. Sarala,; A.K. Viswambharan and;
DispositionAppeal dismissed
Cases ReferredDattatraya Nagesh v. Ganesh Raghunath
Excerpt:
- - after hearing both sides we are satisfied that this objection has to be upheld......who is at liberty to place his own valuation on the relief of accounting while instituting a suit for accounts, the defendant who files an appeal against a preliminary decree for taking accounts is also equally free to put his own valuation on the subject-matter of the appeal. in support of this contention, counsel for the appellant relied very strongly on the observations made by sulaiman. j. in the decision reported in chunni lal v. sheo charan lal, air 1925 all 787. in that case which arose under the court-fees act of 1870 it was held by the learned judge on a consideration of the relevant provisions of that enactment that in an appeal from a preliminary decree in a suit for accounts the appellant is entitled to fix his own value for the relief he claims and is not bound by the.....
Judgment:

Balakrishna Eradi, J.

1. The defendant in O. S. No. 108 of 1965 on the file of the Additional Subordinate Judge's Court, Ernakulam has brought this appeal against the preliminary decree pass-ed by the lower Court in the said suit. The respondent herein Is the plaintiff in the action and the relief claimed in the suit is that the defendant should be ask-ed to render accounts in respect of a transaction of sub-contract which had been entered into as between the plain-tiff and the defendant and that a decree should be passed In favour of the plaintiff for recovery of such amounts as may be found due on rendition of accounts. The plaintiff had valued the said relief of accounting under Section 35 of the Court-fees Act at Rs. 50,000/- and paid the court-fee on that basis. The lower Court has passed a preliminary decree directing taking of accounts in respect of the transaction of sub-contract referred to in the plaint and it is against the said decree that this appeal has been preferred by the defendant.

2. When the appeal came up for hearing the learned advocate appearing for the respondent-plaintiff raised a preliminary objection that proper court-fee has not been paid on the memorandum of appeal. After hearing both sides we are satisfied that this objection has to be upheld.

3. The appellant has valued the subject-matter of the appeal at Rs. 300/-and paid a court-fee of only Rs. 30/- on the said basis. As already noticed, the relief of accounting had been valued by the plaintiff in the Court below at Rupees 50,000/- and court-fee was paid on the plaint on the basis of that valuation.

4. It is argued on behalf of the appellant that the subject-matter of the appeal is incapable of valuation and that just as in the case of a plaintiff who is at liberty to place his own valuation on the relief of accounting while instituting a suit for accounts, the defendant who files an appeal against a preliminary decree for taking accounts is also equally free to put his own valuation on the subject-matter of the appeal. In support of this contention, counsel for the appellant relied very strongly on the observations made by Sulaiman. J. in the decision reported in Chunni Lal v. Sheo Charan Lal, AIR 1925 All 787. In that case which arose under the Court-fees Act of 1870 it was held by the learned Judge on a consideration of the relevant provisions of that enactment that in an appeal from a preliminary decree in a suit for accounts the appellant is entitled to fix his own value for the relief he claims and is not bound by the valuation put by the plaintiff in the suit,

5. The above view has not however been accepted as correct in subsequent rulings of several of the other High Courts in India. In two Full Bench decisions of the Madras High Court it has been held that in a suit filed for ac-counts the valuation made by the plaintiff is binding upon the defendant when the defendant appeals against the whole of the decree passed by the Court of first instance directing an account to be taken. See Srinivasacharlu v. Perindevamma, ILR 39 Mad 725 = (AIR 1917 Mad 668) (FB) and In re Dhanukodi Nayakkar, AIR 1938 Mad 435 (FB). The ruling of Sulaiman, J. in AIR 1925 All 787 was referred to by the learned Judges of the Full Bench who decided the case in AIR 1938 Mad 435 (FB) and after adverting to the reasoning contained in the said judgment the Full Bench did not find it possible to agree with the said decision. The Full Bench therefore adhered to the view taken in the earlier rulings of the Madras High Court that when a defendant-appellant appeals against the preliminary decree in a suit for accounts and challenges the whole of the said decree he has to value the subject-matter of the appeal, namely the relief of accounting, in the same manner in which it had been valued by the plaintiff. The view taken by the Madras High Court was accepted and adopted by the High Court of Bombay in Potchalal Ranchhod v. Umedram Kalidas, AIR 1928 Bom 476 and by the Nagpur High Court in Sheoram v. Atmaram, AIR 1943 Nag 13.

6. In a recent decision of the Bombay High Court in Dattatraya Nagesh v. Ganesh Raghunath, AIR 1959 Bom 495 the entire case law relating to the aforesaid matter has been discussed and a Division Bench consisting of Shah and V. S. Desai, JJ. held that 'once the valuation of the subject-matter is fixed by the plaintiff by valuing the claim for purposes of court-fee in the manner permitted to him by the legislature, that valuation of the subject-matter must in the absence of any provision justifying a departure enure for the entire proceeding in the suit and if the defendant desires to challenge the whole decree passed by the trial Court, the defendant must accept that valuation'. It was further held that it is not open to the defendant in an appeal against a preliminary decree for accounts where the whole decree is under challenge, to alter the valuation of the subject-matter made by the plaintiff for purposes of court-fee.

7. Counsel for the appellant referred us to two decisions of the Rangoon and Rajasthan High Courts reported in AIR 1931 Rang 146 (FB) and AIR 1958 Rai 144 respectively wherein the decision of Sulaiman. J. in AIR 1925 All 787 has been followed. With due respect we do not find it possible to accept these decisions as laying down the correct law.

8. We are in complete agreement with the view expressed by the Division Bench of the Bombay High Court in AIR 1959 Bom 495 accepting as it does the principle laid down in the Full Bench rulings of the Madras High Court reported in AIR 1938 Mad 435 and ILR 39 Mad 725 = (AIR 1917 Mad 668 (FB)). Accordingly we hold that the court-fee Paid by the defendant-appellant on the memorandum of appeal is not adequate, Inasmuch as the appellant is challenging the entirety of the preliminary decree passed by the Court below upholding the plea of the plaintiff for the grant of the relief of rendition of accounts, the appellant has to pay court-fee on the valuation of the said subject-matter as fixed in the plaint, namely Rs. 50,000/-.

9. We allow the appellant two weeks' time from today to pay the deficit court-fee. Post the appeal for further orders on 25-1-1974.


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