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V. Ramaswami Gupta Vs. Pasuparthi Krishnayya - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai
Decided On
Reported in(1948)2MLJ104
AppellantV. Ramaswami Gupta
RespondentPasuparthi Krishnayya
Cases ReferredSitharathamma v. Seshamma
Excerpt:
- - the learned judge held that the payment of court-fee for the higher claim for possession was, in the circumstances, sufficient to cover the alternative claim as well......part of the amount due under the promissory note. the defendant however did not execute a proper sale deed, though the plaintiff was ready and willing to perform his part of the contract. finally the defendant denied the contract of sale with the plaintiff and set up an agreement of sale in favour of another. the plaintiff was therefore compelled to the legal proceedings to enforce his rights. he therefore prayed for the following reliefs:(a) a decree granting specific performance of the contract of sale by calling upon the defendant to execute a sale of the property and directing the defendant to pay rs. 406-7-0 being the balance of the amount due under the promissory note after adjusting the consideration for the sale.(b) in the alternative, for a decree directing the defendant to.....
Judgment:

P.V. Rajamannar, Officiating C.J.

1. This civil revision petition raises a question of court-fee. The plaintiff in O.S. No. 69 of 1945 in the Court of the Subordinate Judge of Chittoor is the petitioner. The allegations in the plaint material for consideration of the question at issue are as follows:

2. The defendant executed a promissory note bearing date 11th December, 1941, for a sum of Rs. 3,815 in favour of one Padmavathamma. The said promissory note was transferred in favour of the plaintiff on 12th December, 1941. The plaintiff was demanding payment of the amount of principal and interest due under the promissory note but the defendant was postponing payment. Early in December, 1943, the defendant entered into an oral agreement of sale with the plaintiff under which he agreed to sell the house for a sum of Rs. 3,700 which sum had to be adjusted towards part of the amount due under the promissory note. The defendant however did not execute a proper sale deed, though the plaintiff was ready and willing to perform his part of the contract. Finally the defendant denied the contract of sale with the plaintiff and set up an agreement of sale in favour of another. The plaintiff was therefore compelled to the legal proceedings to enforce his rights. He therefore prayed for the following reliefs:

(a) a decree granting specific performance of the contract of sale by calling upon the defendant to execute a sale of the property and directing the defendant to pay Rs. 406-7-0 being the balance of the amount due under the promissory note after adjusting the consideration for the sale.

(b) in the alternative, for a decree directing the defendant to pay to the plaintiff a sum of Rs. 4,482 being the amount due under the suit promissory note with further interest, if for any reason it be found that the contract of sale was not valid and enforceable.

3. He paid a court-fee of Rs. 374-15-0 on the following basis. He valued the relief (a) at Rs. 3,700 for the prayer for specific performance under Section 7(x)(a) of the Court-Fees Act and at Rs. 406-7-0 under Section 7(1) of the Act. The total court-fee payable on this basis was Rs. 361. The alternative relief (b) was valued at Rs. 4,482 and the ad valorem court-fee thereon would be Rs. 374-15-0. So he adopted the high court-fee to be paid for the alternative relief. Objection was taken by the Court that the proper court-fee had not been paid and after notice to the plaintiff, the learned Subordinate Judge of Chittoor held that the suit comprised two distinct subjects and that the plaintiff was therefore bound to pay separate court-fee on each of the reliefs claimed by him under Section 17 of the Court-Fees Act.

4. It is contended by the learned advocate for the petitioner that the learned Judge erred in holding that the suit comprised two distinct subjects within the meaning of that section. In Parameswara Pattar, In re : AIR1930Mad833 which is a decision of a Full Bench of this Court, the learned Judges did not attempt a definition of the word ' subject ' in Section 17 of the Court-Fees Act. The learned Judges merely took notice of two possible views as to the meaning of that word, viz.,one that the word ' subject ' relates back to Section 7 where the various subjects of suits are put under different heads; and the other that the word ' subject ' means a cause of action.

The decision in that case therefore is only authority for the limited position that in a suit for possession of immoveable property and past mesne profits, court-fee is payable on the aggregate value of both the reliefs and the claim for possession of land and for mesne profits are not ' distinct subjects ' under Section 17 of the Court-Fees Act. The ground of the decision was expressly stated to be the ' long course of practice.'

5. The learned advocate for the petitioner relied upon certain decisions of this Court in support of his contention but on examination of the facts of the cases in which the decision were given discloses no definite rule or precise definition applicable to all cases. In Narasimham, In re : AIR1942Mad744 Krishnaswami Aiyangar, J., dealt with the question on the footing that if alternative reliefs are claimed based on the same cause of action, the cases could not fall within Section 17 of the Court-Fess Act. In that case a purchaser of property sued for possession of the property sold to him or, in the alternative, for the recovery of the consideration money paid by him. It is clear that both the reliefs, though in the alternative, were based on the same cause of action, viz., the sale of the property. The learned Judge refers to an earlier decision of a Division Bench in Rangaswami Reddiar v. Venkataperumal Reddiar : (1938)1MLJ139 , on which the learned advocate placed some reliance. There the plaintiff was the reversioner who sought to set aside a certain deed of settlement executed by one K in favour of defendants 1 and 2 on the ground that it had been brought about by fraud and undue influence. He also claimed in the alternative that if the deed was found to be valid he should be given a decree for Rs. 22,000 being the consideration for the deed, as that amount was not paid to K as provided in the deed. The plaintiff also claimed specific performance based on an agreement alleged to have been executed by K in his favour. He valued the relief claimed at Rs. 22,000 and paid court-fee thereon. The learned Judges held that the cause of action for the alternative relief, viz., the payment of the consideration amount, was also based on the same cause of action for the main relief of setting aside the deed of settlement, and the two reliefs regarding the deed of settlement were not distinct subjects within the meaning of Section 17 of the Court-Fees Act. The learned Judges also held that the plaintiff had to pay separate court-fee on the prayer for specific performance. Here again the relief relating to the settlement deed were based on the same cause of action whereas the relief of specific performance was based on a quite different cause of action, vis., the execution of an agreement to sell.

6. The decision in Sitharathamma v. Seshamma : (1939)1MLJ456 was also cited. The plaint contained alternative prayer, either for possession of certain property left by a deceased or for maintenance from and out of that property. The lower Court directed that court-fee should be calculated under Section 17 of the Court-Fees Act separately on the claim for possession and the claim for maintenance. The learned Judge held that the payment of court-fee for the higher claim for possession was, in the circumstances, sufficient to cover the alternative claim as well. Here again the two reliefs were based on the relationship between the plaintiffs and the deceased. On the footing that the deceased died intestate, the plaintiffs claimed possession and on the footing that the deceased left a valid will, they claimed maintenance.

7. In the present case, the relief of specific performance is based on the oral agreement of sale on 10th December, 1943, alleged to have been entered into between the defendant and the plaintiff.

8. It is true that the consideration for the sale was to be adjusted towards part of the amount due under the promissory note, but the cause of action for the relief of recovery of the amount due under the promissory note is distinct and apart from the agreement to sell. Though the fact that separate suits could be brought for the two reliefs may not be a conclusive test, I consider that that fact should also be taken into consideration in deciding whether the two reliefs are different subjects within the meaning of Section 17 of the Court-Fees Act. The facts of the present case do not materially resemble the facts in the case referred to above. Here there are two separate and independent causes of action and two distinct reliefs which do not necessarily arise from the same subject-matter. I therefore agree with the learned Subordinate Judge in holding that the present case comes within the meaning of Section 17 of the Court-Fees Act. The civil revision petition is therefore dismissed with costs of the Government pleader.


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