1. This petition raises the question of the bearing of Section 7(iv)(f) of the Court-Fees Act when the plaintiff is the appellant. The petitioner filed O.S. No. 334 of 1937 in the District Munsiff's Court of Vizagapatam for accounts of a dissolved partnership and for delivery of possession of the petitioner's share of the partnership assets after taking accounts. The relief for accounts was valued at Rs. 100 in the plaint. The petitioner did not succeed in the suit. On the other hand, the trial Court passed a final decree directing him to pay the defendants Rs. 4,582-5-0 with interest at six per cent, per annum from 31st December, 1936 and Rs. 242-10-0 with interest at the same rate from 30th October, 1941, the date of the decree. The petitioner thereupon filed an appeal valuing the relief at Rs. 100, the value mentioned in the plaint and paid court-fee accordingly. The learned Subordinate Judge directed the petitioner to value the appeal at least on the amount decreed against him and pay the necessary court-fee on such valuation. This petition has been filed against that order.
2. It is argued on behalf of the petitioner that he can value his relief as he likes and in support of this contention reliance is placed on the decision of the Judicial Committee in Faizullah Khan v. Mauladad Khan (1929) 57 M.L.J. 281 : L.R. 56 IndAp 232 : I.L.R. 10 Lah. 737 (P.C.) and certain observations of a Full Bench of this Court in In re Dhanukodi Nqyakkar : AIR1938Mad435 . In Faizullah Khan's case (1929) 57 M.L.J. 281 : 1929 L.R. 56 IndAp 232 : I.L.R. 10 Lah. 737 (P.C.) the plaintiff-appellant valued the relief in the appeal on the amount of the decree passed against him, but did not pay court-fees on the amount of Rs. 3,000 which according to his claim was due to him on a proper taking of accounts. The lower appellate Court remanded the case to the trial Court with a direction that the case of the plaintiff-appellant should be considered only with regard to the amount of the decree and not the amount which he claimed as due to him, as court-fees had not been paid on it. Their Lordships of the Judicial Committee considered that such a direction was not warranted and that the valuation in appeal covered the entire relief which the plaintiff-appellant claimed. In the Full Bench decision the appellant was the defendant and not the plaintiff but the learned advocate for the petitioner relies on the following observations made with regard to Faizullah Khan's case (1929) 57 M.L.J. 281 : L.R. 56 IndAp 232 : I.L.R. 10 Lah. 737 (P.C.) as well as Section 7(iv)(f) of the Court-Fees Act,
The Privy Council held that the court-fee paid on the sum of Rs. 19,99,1 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 Faizullah Khan v. Mauladad Khan (1929) 57 M.L.J. 281 : 1929 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. Faizulliih Khan's case, as I have already indicated, 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.
3. It is contended on behalf of the petitioner that the decision of the Judicial Committee in Faizullah Khan's case (1929) 57 M.L.J. 281 : 1929 L.R. 56 IndAp 232 : I.L.R. 10 Lah. 737 (P.C.) as interpreted by the Full Bench of this Court clearly indicates that the petitioner can value his relief in the appeal in the same manner in which he can value it in the plaint. The contention of the learned Government Pleader is that the petitioner at the time of filing the appeal in question had against him a decree for a definite amount and in order to avoid the liability under that decree he should have valued the appeal at least for the amount of the decree. He relies on the decision of the Bombay High Court in Kashiram Sheth v. Benglal Motilal Sheth I.L.R. (1941) Bom. 477. In that case there was a decree passed against the plaintiff in a suit for accounts and it was held that the plaintiff-appellant should pay court-fees on the amount of the decree passed against him. Reference is also made to Order 7, Rule 2, Civil Procedure Code, which requires that in suits for unsettled accounts relief should be mentioned approximately.
4. I am unable to accept the contention of the learned Government Pleader. There is no reference to Order 7, Rule 2 in the judgment in Faizullah Khan's case (1929) 57 M.L.J. 281 : 1929 L.R. 56 IndAp 232 : I.L.R. 10 Lah. 737 (P.C.) nor does it appear to me that their Lordships of the Judicial Committee considered the court-fee in that case as sufficient on the ground that the relief was valued approximately as required by the above rule. On the other hand, as has been pointed out by this Court in the abovementioned Full Bench decision, the Judicial Committee considered that the plaintiff-appellant before them had paid court-fee largely in excess and the case proceeded on the basis that he could value the relief as he liked. The lower appellate Court in that case took the view apparently with reference to Order 7, Rule 2 that the valuation of the appeal should not only include the amount of the decree against the appellant but also the amount which he expected to be awarded on the taking of accounts. If that point of view was correct, their Lordships of the Judicial Committee would not have interfered. The Bombay decision no doubt supports the contention of the learned Government Pleader, but the view taken there was that there was no difference between a plaintiff-appellant and a defendant-appellant in this matter, whereas this Court has clearly stated in the above mentioned Full Bench decision that such a distinction does exist and that under Section 7(iv)(f) the plaintiff-appellant has greater freedom than the defendant-appellant in the matter of valuation.
5. Following the decision of the Privy Council in Faizullah Khan's case (1929) 57 M.L.J. 281 : 1929 L.R. 56 IndAp 232 : I.L.R. 10 Lah. 737 (P.C.) and the observations of this Court in the Full Bench case extracted above, I find that the court-fee paid in this case in the first instance is correct. Since the passing of the order of the lower Court, the petitioner paid the additional court-fee demanded of him This will be refunded. There shall be no order as to costs.