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In Re: Dhanukodi Nayakkar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1938Mad435; (1938)1MLJ628
AppellantIn Re: Dhanukodi Nayakkar and ors.
Cases ReferredFaizulla Khan v. Mauladad Khan
Excerpt:
- - 2. the courts of india have always regarded section 7(iv)(f) of the court-fees act as applying to appeals by defendants as well as to appeals by plaintiffs, but whether there is justification for including defendants is open to question. 9. in the course of his arguments, the learned advocate for the appellants intimated that the intention was to limit the appeal to the preliminary decree, because if that was set aside the final decree would also fail......valued his relief, so far as it concerned his claim for an account, at rs. 3,000. he obtained a preliminary decree, which was followed in due course by a final decree, by which he was declared to be entitled to recover a total sum of rs. 32,000. the preliminary decree was challenged on appeal to the district court of madura, but this appeal had not been decided at the time of the passing of the final decree by the trial court. an appeal against the final decree was also filed, and the district court heard the two appeals together. the result was that the decree of the trial court, so far as it directed the payment of money, was varied, it being held that the plaintiff was only entitled to recover rs. 6,554-5-2. the defendants concerned then appealed to this court and valued their.....
Judgment:
ORDER

Alfred Henry Lionel Leach, C.J.

1. This reference raises the much discussed question of the bearing of Section 7(iv)(f)of the Court-Fees Act of 1870 when the defendant is the appellant. In a suit for recovery of possession of immovable property and for an account filed in the Court of the Subordinate Judge of Madura the plaintiff valued his relief, so far as it concerned his claim for an account, at Rs. 3,000. He obtained a preliminary decree, which was followed in due course by a final decree, by which he was declared to be entitled to recover a total sum of Rs. 32,000. The preliminary decree was challenged on appeal to the District Court of Madura, but this appeal had not been decided at the time of the passing of the final decree by the trial Court. An appeal against the final decree was also filed, and the District Court heard the two appeals together. The result was that the decree of the trial Court, so far as it directed the payment of money, was varied, it being held that the plaintiff was only entitled to recover Rs. 6,554-5-2. The defendants concerned then appealed to this Court and valued their relief at Rs. 100, paying the court-fee of Rs. 11-3-0 thereon. This valuation was accepted by the office, as it was in accordance with the decision of this Court (Ramesam and Mockett, JJ.) in the case of In re Nukala Venkatanandam (1932) 64 M.L.J. 122 : I.L.R. 56 Mad. 705, but when the appeal came before Burn. J., for admission my learned brother questioned the right of the appellants to make an arbitrary valuation and suggested that In re Nukala Venkatanandam (1932) 64 M.L.J. 122 : I.L.R. 56 Mad. 705, should be re-considered as it appeared to go beyond the decision of the Privy Council in Faizulla Khan v. Mauladad Khan (1929) 57 M.L.J. 281 : L.R. 56 IndAp 232 : I.L.R. 10 Lah. 737 (P.C.) on which Ramesam and Mockett, JJ., had relied. This Bench has consequently been constituted to consider the whole question of the stamping of appeals by defendants in suits for accounts, as it is important for the legal profession and necessary for the guidance of the officials of the Court whose duty it is to check the stamping of memoranda of appeal that there should be a clear statement of the practice to be followed as regards both preliminary and final decrees.

2. The Courts of India have always regarded Section 7(iv)(f) of the Court-Fees Act as applying to appeals by defendants as well as to appeals by plaintiffs, but whether there is justification for including defendants is open to question. Certainly support can be found for the contention that the legislature did not intend it to apply to appeals by defendants. In the first place the Act was passed when the Civil Procedure Code of 1859 was in force and that Code did not contemplate an appeal from a preliminary decree in a suit for an account. In the second place, Section 11 which was inserted to prevent a litigant escaping payment of the proper court-fee only applies to plaintiffs. There is no corresponding provision to meet the case of a defendant who appeals and under-values his relief. Then Clause (iv)(f) itself only mentions the plaintiff. It states that in suits falling within the clause the amount of fee payable should be computed according to the amount at which the relief is valued in the plaint or memorandam and concludes with these words:

In all such suits, the plaintiff shall state the amount at which he values the relief.

3. Although the memorandum of appeal is included, the emphasis is on the plaintiff. It is he who must value the relief. The wording of the clause and of Section 11 read in the light of the history of the section certainly does suggest that the defendant was not within the contemplation of those who were responsible for the drafting of the Act. Assuming this to be in fact the case, it would not follow that a defendant-appellant would escape payment of a court-fee. Section 4 or 6 read with Article 1 of Schedule I could be called in aid to prevent this, and a defendant-appellant would here find no loophole for placing an arbitrary value on his relief.

4. In view of the unanimity of previous opinion, we will accept the contention that Clause (iv)(f) does apply to appeals by a defendant and discuss the matter from that standpoint. The case of an appeal from a preliminary decree will be taken first. This question was considered by this Court in 1889, when Shepherd and Subramania Ayyar, JJ., in Santiya Mavali v. Meenammal (1899) 10 M.L.J. 240 : I.L.R. 23 Mad. 490, held that the valuation given by the plaintiff was the valuation to be accepted, except when the appeal did not comprise the entire subject-matter of the suit. The question was raised again in 1915 in the case of Dhupati Srinivasacharlu v. Perindevamma (1915) 30 M.L.J. 402 : I.L.R. 39 Mad. 725, which was decided by a Full Bench consisting of Wallis C.J., Sadasiva Aiyar and Srinivasa Aiyangar, JJ., who concurred in the opinion expressed in Samiya Mavali v. Meenammal (1899) 10 M.L.J. 240 : I.L.R. 23 Mad. 490. This decision has governed the practice in the Madras Presidency ever since. Therefore for nearly 40years a defendant appealing from a preliminary decree for an account has ordinarily had to stamp his memorandum according to the plaintiff's valuation. The decision has, however, not found general acceptance and some High Courts consider that when a defendant appeals from a preliminary decree in a suit for an account he is at liberty to value his appeal at whatever amount may seem to him to be approximately correct. The reasoning which challenges the correctness of the decision in Dhupati Srinivasacharlu v. Perindevamma (1915) 30 M.L.J. 402 : I.L.R. 39 Mad. 725, will be gathered from the judgments delivered by Sulaiman and Boys, JJ., in Chunni Lal v. Sheo Charan Lal Lalman I.L.R. (1925) All. 756, and may be summed up in very few words. Clause (iv)(f) allows the plaintiff to state his own valuation and as it does not compel the defendant to accept the plaintiff's valuation it is just to read it as placing the defendant-appellant on the same basis as the plaintiff-appellant. Sulaiman, J., frankly acknowledged that this interpretation of the section will be unsatisfactory in some cases and may lead to inconvenience. It ignores the fact that Section 11 only applies to the plaintiff and that there is no corresponding section so far as the defendant is concerned.

5. Before deciding whether the practice laid down in Dhupati Srinivasacharlu v. Perindevamma (1915) 30 M.L.J. 402 : I.L.R. 39 Mad. 725 should continue to be followed, it is necessary to pause to consider the decision of the Judicial Committee in Faizulla Khan v. Mauladad Khan (1929) 57 M.L.J. 281 : L.R. 56 IndAp 232 : I.L.R. 10 Lah. 737 (P.C.), which was an appeal by the plaintiffs in a suit for an account. They valued their relief in the plaint at Rs. 3,000, but the trial' Court passed a decree against them for Rs. 19,991. They appealed and valued their relief for the purpose of the appeal at Rs. 19,991, but they did not stamp the memorandum to include the Rs. 3,000, which they claimed they were entitled to. The appellate Court in remanding the matter for re-trial ordered that they should not have a decree for any sum which might be due to them, as the court-fee paid did not cover that relief, and to that extent the appeal was barred by limitation. The Privy Council held that the court-fee paid on the sum of Rs. 19,991 was largely in excess of the true sum of relief at which a sound valuation could in the circumstances be said to reach and it covered the appeal as a whole, including the sum of Rs. 19,991, on the one hand and the smaller sum of Rs. 3,000, on the other. In the course of the arguments which, are to be found reported in Faizulla Khan v. Mauladad Khan (1929) 57 M.L.J. 281 : L.R. 56 IndAp 232 : I.L.R. 10 Lah. 737 (P.C.), it was pointed out by Lord Tomlin that the scheme of the Act was that the plaintiff should be allowed to value his own relief, and the decision proceeded on this basis. Their Lordships were not called upon to consider the case of a defendant-appellant and consequently their decision cannot be taken as a guide when deciding whether Dhupati Srinivasacharlu v. Perindevamma (1915) 30 M.L.J. 402 : I.L.R. 39 Mad. 725 or Chunni Lal v. Sheo Charan Lal Lalman I.L.R. (1925) All. 756 should be followed.

6. After careful consideration, we have come to the conclusion that the Full Bench decision of this Court in Dhupati Srinivasacharlu v. Perindevamma (1915) 30 M.L.J. 402 : I.L.R. 39 Mad. 725 should not be disturbed. By reason of its concluding sentence, Clause (iv)(f) can be construed in the way it was construed in that case, but even if the decision means reading into the clause something which is not there, it does not read into it anything more than those who prefer the Allahabad opinion would read into it. There are, however, other reasons why the decisions should stand. It cannot be said that in compelling a defendant to follow a plaintiff's valuation hardship is likely to result. A plaintiff is never anxious to pay more than is necessary in court-fees. A Court; is naturally reluctant to depart from a long-established practice and should only do so when it is clear that the practice is contrary to law, which is certainly not the case here. Moreover, the Madras High Court does not stand alone. The decision in Dhupati Srinivasacharlu v. Perindevamma (1915) 30 M.L.J. 402 : I.L.R. 39 Mad. 725 found acceptance with the majority of the Court in Pochalal Ranchhod v. Umedram Kalidas I.L.R. (1928) Bom. 904 and in Deoji Goa v. Tricumji Jivan Das I.L.R. (1935) Pat. 658. The decision in Dhupati Srinivasacharlu v. Perindevamma (1915) 30 M.L.J. 402 : I.L.R. 39 Mad. 725 will, therefore, continue to govern the practice in this Presidency with regard to appeals by defendants from preliminary decrees in suits for account.

7. Until the decision in Nukala Venkatanandam, In re (1932) 64 M.L.J. 122 : I.L.R. 56 Mad. 705, it was never questioned in the High Courts of India that a defendant appealing against a final decree should pay a court-fee on the amount of the decree passed against him - except in cases where he appealed only against a portion of the decree - and we are unable to concur in the opinion that Faizulla Khan v. Mauladad Khan (1929) 57 M.L.J. 281 : L.R. 56 IndAp 232 : I.L.R. 10 Lah. 737 (P.C.) has put a different construction on the section. Faizulla Khan's case, as I have already indicated, only dealt with the case of a plaintiff-appellant. The section gives great freedom to plaintiff-appellants, but we do not consider that it gives the same freedom to defendant-appellants. When a defendant-appellant appeals against a final decree he knows exactly the value of his relief. It follows that we consider that Nukala Venkatanandam, In re (1932) 64 M.L.J. 122 : I.L.R. 56 Mad. 705, was wrongly decided and, therefore, should not be followed.

8. In the present case, according to the heading of the memorandum of appeal, the appeal relates only to the preliminary decree for an account, but at the end of the memorandum there is this note:

The appeal is from a combined preliminary and final decree passed by the appellate Court in a suit for taking of accounts and hence it is impossible to state accurately what the net liability of the appellants will be on a proper taking of the accounts, accepting the contention raised in the memorandum of grounds.

9. In the course of his arguments, the learned advocate for the appellants intimated that the intention was to limit the appeal to the preliminary decree, because if that was set aside the final decree would also fail. We see no objection to the appellants treating their appeal as an appeal against the preliminary decree, if they so desire, but they will have to value their relief in accordance with the valuation in the plaint.


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