1. Petitioner is plaintiff in O.S. No. 286 of 1923 on the file of the Court of the Additional District Munsif of Calicut. He sues to redeem certain land granted on kanom, and seeks to deduct from the kanom amount certain damages to which he claims to be entitled. The question is whether he need pay Court-fee only on the kanom amount, or whether, as held by the Lower Court, he must also pay an ad valorem fee on the amount claimed as damages.
2. The petitioner relies upon Eacharan Pattar v. Appu Pattar (1895) 19 Mad 16 but there it was simply a question of taking an account of rents due on the original contract. Here, there is the additional cause of action that defendant committed a tort. Reference under Court Fees Act, Section 5(2) is also a question of rents. I do not think that petitioner can draw any useful analogy between improvements and damages. Improvements are specially provided for in Madras Act (I of 1900) and it was early held that they would not affect the Court-fee.Zamorin of Calicut v. Narayana ILR 1882 M 284 I find no authority for extending this principle to damages; and it cannot be said to be intended by the phrase 'or otherwise' in Section 6(2), Madras Act (1 of 1900).
3. The petitioner also contends that this is a mortgage suit in which any question of damages must necessarily be only one of account. The only authority he can cite is the observation in Ragavaji Salt v. Annamalai Mudali (1907) 17 MLJ 625 which was not a mortgage suit but a suit between principal and agent): ' Even if this suit be regarded as a suit for damages based on fraud and not as a suit for account. ' I agree with the Lower Court that when damages are sued for, Section 7(1) of the Court Fees Act must apply, and redemption and damages are two distinct subjects as contemplated by Section 17.
4. The petition is dismissed with costs.