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S. Rm. Ar. S. Sp. Sathappa Chettiar Vs. Umayal Achi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberOriginal Side App. No. 46 of 1958
Judge
Reported inAIR1960Mad564; (1960)2MLJ550
ActsCourt-fees Act - Sections 5, 7 and 12 - Schedule - Article 17-B; Code of Civil Procedure (CPC), 1908 - Sections 114, 144, 151 and 152 - Order XLVII
AppellantS. Rm. Ar. S. Sp. Sathappa Chettiar
RespondentUmayal Achi and anr.
Cases Referred and Kasanji Kuverji v. Surat Municipality
Excerpt:
.....exercised when result would adversely affect rights of third parties or be unfair to one party - application filed by plaintiff not maintainable as there are no grounds to sustain it. - - 252-253 of air): in our opinion therefore the learned judges of the madras high court were in error in holding that the valuation for jurisdiction showed in the plaint should be taken to be the valuation for the payment of court fees on the plaint as well as the memorandum of appeal. 94: the lordships conceive that one of the safest guides to the construction of sweeping general words, which it is difficult to apply in their full literal sense, is to examine other words of like import in the same instrument, and to see what limitations must be imposed on them. if it is found that a number of such..........is stated is that the basis on which rs. 11350 by way of advocate's fee was awarded namely, the plaint valuation of rs. 15 lakhs having been taken away by an amendment of the plaint substituting rs. 50,000 for rs. 15 lakhs in pursuance of the directions of the supreme court, the decree for costs should be amended substituting as advocate's fee rs. 2193-5-4 which alone will be the proper fee on the valuation of rs. 50,000 now found in the plaint. order xvii r. 15 of the original side rules governs the matter and the rule is as follows:'after a decree or order has been sealed, any application to rectify an inaccuracy, or clerical, or arithmetical error, shall save as provided in or. xiii rule 7(c) of these rules, be made to the judge who passed the decree or order, or if in the event of.....
Judgment:

Jagadisan, J.

(1) C. S. No. 311 of 1951 on the file of the Original Side of this court was a suit instituted by one Sethappa Chettiar against one Ramanathan Chettiar for partition and separate possession of a half share of alleged joint family properties described in schedules B, C and D attached to the plaint and for rendition of accounts in respect of the joint family assets and for other appropriate reliefs usual and incidental in partition actions. For purposes of court fee the plaintiff valued the claim for accounts at Rs. 1000 under S. 7(iv)(f) of the Court-fees Act and paid an ad valorem court fee of Rs. 112-7-0.

In regard to the relief for partition a fixed court fee of Rs. 100 was paid purporting to be under Art. 17-B (Madras) of Sch. II of the Court-fees Act. For the purposes of jurisdiction the plaintiff however gave the value as Rs. 15 lakhs. The value of Rs. 15 lakhs was arrived at by valuing the entire properties covered by the schedules to the plaint at Rs. 30 lakhs and commuting the value of the half share claimed by the plaintiff at half that value, namely Rs. 15 lakhs. The office of the High Court took exception to this mode of valuation adopted by the plaintiff for purposes of court fee, and the matter was referred to the Chamber Judge, Krishnaswami Nayudu, J. who by his order dated 18-10-1951 held that the court fee paid by the plaintiff was correct and sufficient.

(2) Previous to the institution of the suit the plaintiff's father one Subbayya had filed a partition suit against the same Ramanathan Chettiar and had entered into a compromise with him and released his claims after receiving due consideration therefor. The plaintiff's contention in the suit was that the said compromise entered into by his father with the defendant Ramanathan Chettiar was not valid and binding on him.

(3) The suit was tried by Ramaswami Gounder J. who held that there was a fair and bona fide settlement of the dispute by the plaintiff's father acting as the manager of his branch, and that the plaintiff was bound by the compromise decree. The learned Judge accordingly dismissed the suit on 22-9-1953.

(4) The plaintiff Sathappa Chettiar presented a Memorandum of appeal on 1-12-1953 against the said judgment and decree. On that memorandum he paid the same court fee as he did for the plaint. The office raised objection about the sufficiency of the court fee paid and ultimately the matter was referred to a Division Bench consisting of Satyanarayana Rao and Rajagopalan JJ. The learned Judges held that the suit and the memorandum of appeal should be valued under the provisions of S. 7(iv)(b) of the Court-fees Act, and that neither S. 7(v) of the Act nor Art. 17-B of Sch. II of the Act was applicable. The plaintiff (appellant) was directed to mention his value for the relief of partition, as it was incumbent upon him to do so under the provisions of S. 7(iv)(b) of the Act.

(5) In compliance with this order the appellant (plaintiff) valued the relief to enforce partition of the joint family properties in the suit at Rs. 50,000, and paid the deficit court fee of Rs. 1662-7-0 and re-presented the memorandum of appeal on 7-5-1954.

(6) But the troubles of the appellant in the matter of payment of court fee were not over. The office took a further objection on the ground that the appellant (plaintiff) was precluded from giving a fresh valuation under S. 7(iv)(b) of Rs. 50,000 inasmuch as he had already valued the claim for purposes of jurisdiction in the plaint at Rs. 15 lakhs. In effect the plaintiff (appellant) was called upon to pay an ad valorem court-fee on Rs. 15 lakhs compelling him to adopt that as the notional valuation under Section 7(iv)(b) of the Act. This position was disputed by the appellant with the result that the matter was again placed before another Division Bench consisting of Rajagopalan J. and one of us, who heard the matter. The view was then taken that it was not open to the appellant to adopt a fresh valuation at the stage of the appeal, and that the value of Rs. 15 lakhs which had been mentioned in the plaint as the value of his claim for jurisdictional purposes should be treated as the value also for purposes of court fee under S. 7(iv)(b) of the Act. The application made by the appellant for a formal amendment of the valuation was rejected and under S. 12(ii) of the Court-fees Act, the appellant was directed to pay deficit court fee on the basis of Rs. 15 lakhs not only on his memorandum of appeal but also on his plaint.

Aggrieved by this order Sathappa Chettiar preferred an appeal to the Supreme Court of India against the order calling upon him to pay the additional court fees on Rs. 15 lakhs. The decision of the Supreme Court in the matter is reported in Sathappa Chettir v. Ramanathan Chettiar : [1958]1SCR1021 . Their lordships held that the decision of Satyanarayana Rao and Rajagopalan JJ. holding that the proper provision of the Court-fees Act applicable was S. 7(iv)(b) became final under S. 5 of the Act, and that it was no longer open to bring about a variance of that order by any subsequent decision of another Bench. Their Lordships also took the view that the value of Rs. 15 lakhs adopted by the plaintiff in the plaint was one for purposes of jurisdiction, and that the plaintiff could not be compelled to adopt that as the value for purposes of court fee.

On the footing that S. 7(iv)(b) of the Court-fees Act was applicable their Lordships held, that the logical result would be to enable the plaintiff to put his own valuation even if it were to be made by way of a formal amendment of the plaint. Their Lordships observed thus at p. 1035 (of SCR) (at pp. 252-253 of AIR):

'In our opinion therefore the learned Judges of the Madras High Court were in error in holding that the valuation for jurisdiction showed in the plaint should be taken to be the valuation for the payment of court fees on the plaint as well as the memorandum of appeal. In view of their prior decision that the present case fell under S. 7(iv)(b) they should have allowed the appellant to amend his valuation for the payment of court fees not only on the memorandum of appeal but also on the plaint. We must accordingly set aside the order under appeal and direct that the plaintiff should be allowed to state the amount of Rs. 50,000 at which he values the relief sought by him for the purpose of S. 7(iv)(b) of the Act. Sri Krishnaswami Aiyangar has orally requested us to give him liberty to make the appropriate amendment in his plaint and we have granted his request.'

(7) In pursuance of the decision of the Supreme Court the plaintiff amended paragraph 33 of the plaint by inserting the value of Rs. 50,000 for purposes of court fee and jurisdiction under S. 7(iv)(b) of the Act on 4-1-1958.

(8) While the above proceedings in respect of the proper court fee payable were pending, the taxing officer who taxed costs due by the plaintiff to the defendant (the suit having been dismissed by Ramaswami Gounder J. with costs) fixed the advocate's fee payable by the plaintiff to the defendant in a sum of Rs. 11350, which would be the counsel's fee allowable if the value of the claim is taken as Rs. 15 lakhs, and issued an allocater dated 25-2-54. At the time when this was allowed by the taxing Officer no objection was taken, as indeed, no objection could be taken, as the parties proceeded on the footing that the value of the claim was only Rs. 16 lakhs.

(9) The plaintiff filed Appln. No. 196 of 1958 on the Original Side of this court while the appeal against the judgment and decree in C. S. No. 311 of 1951 was still pending praying for reliefs by way of amendments in the decree in C. S. No. 311 of 1951 by substituting the sum of Rs. 2193-5-4 for the sum of Rs. 11350 allowed as advocate's fees and for a direction against the defendant to refund to the plaintiff the excess amount recovered by him in respect of the advocate's fee under the decree, namely, the sum of Rs. 9156-10-8.

(10) This application was resisted by the defendant who took the objection amongst others that the application was not maintainable in law. The application was heard by Ganapatia Pillai J. who dismissed it holding that no order for restitution could be made as the matter was not covered by the provisions of S. 144 of the C. P. Code.

(11) The plaintiff in C. S. No. 311 of 1951 who was also the applicant in Application No. 196 of 1958 is the appellant before us. He challenges the decision of Ganapatia Pillai J. and contends that the application filed by him is maintainable, that the amendment prayed for should be allowed and that there is no impediment to direct refund of the excess amount received by the defendant by way of restitution either under S. 144 C.P.C. or under the general inherent powers of the court.

(12) Before the appellant can succeed in this appeal, he must establish (i) that the application filed by him before the learned Judge is maintainable in law either under the Original Side rules or under the provisions of the Civil Procedure Code, and (ii) that there are valid grounds for directing amendment of the decree as prayed for by him, and (iii) that in consequence of any order for amendment being passed the court has jurisdiction to direct refund of the excess amount paid either under the specific provisions of S. 144 C.P.C. or under the inherent powers of the court under S. 151 C.P.C.

(13) The affidavit in support of the application before the learned Judge is not very clear or specific as regards the grounds on which the amendment is sought. What is stated is that the basis on which Rs. 11350 by way of advocate's fee was awarded namely, the plaint valuation of Rs. 15 lakhs having been taken away by an amendment of the plaint substituting Rs. 50,000 for Rs. 15 lakhs in pursuance of the directions of the Supreme Court, the decree for costs should be amended substituting as advocate's fee Rs. 2193-5-4 which alone will be the proper fee on the valuation of Rs. 50,000 now found in the plaint. Order XVII R. 15 of the Original Side rules governs the matter and the rule is as follows:

'After a decree or order has been sealed, any application to rectify an inaccuracy, or clerical, or arithmetical error, shall save as provided in Or. XIII rule 7(c) of these rules, be made to the Judge who passed the decree or order, or if in the event of his absence on leave, or retirement to any other Judge, and he may (in his discretion), after notice to the parties, when the Judge deems it necessary, amend the same so as to bring it into conformity with the judgment, or rectify such inaccuracy or error. Save as aforesaid no alternation or variation shall be made without a review of judgment and hearing under the provisions of S. 114 and O. XLVII of the Code of Civil Procedure.'

The grounds on which reliefs can be sought under the said provision are 'inaccuracy' 'clerical or arithmetical error', and the decree not being in conformity with the judgment. It is not contended on behalf of the applicant (plaintiff) that there is any clerical or arithmetical error or that decree as drafted is not in conformity with the judgment in the case. The only ground that is left is the ground of 'inaccuracy'. It must be mentioned again that the applicant himself has not stated in the affidavit in support of the application that what is sought to be rectified by way of the amendment is any inaccuracy. The corresponding provision under the Civil Procedure Code is that embodied in S. 152. That runs as follows:

'Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at anytime be corrected by the court either of its own motion or on the application of any of the parties.'

The English rule, namely, Order 28 rule 11 of the rules of the Supreme Court is thus set out in the Annual Practice 1960.

'Clerical mistakes in judgment or orders or errors arising therein from any accidental slip or omission, may at any time be corrected by the court or a Judge on motion or summons without an appeal.'

Neither S. 152 C. P. Code nor the English rule, familiarly known as the 'Slip rule' contains the word 'inaccuracy' found in the Original Side rules. The question for consideration is whether the decree for costs including the advocate's fees of Rs. 11350 based upon the valuation of Rs. 15 lakhs can be said to be inaccurate by reason of an amendment of the plaint substituting Rs. 50,000 for Rs. 15 lakhs introduced long after costs were taxed on the footing of the valuation of Rs. 15 lakhs. At the time when the costs were taxed by the taxing officer everything was in order and the taxation was in accordance with the rules for taxation and indeed no exception was taken to it by the plaintiff himself.

It is only by reason of the subsequent amendment of the plaint that it became possible for the plaintiff to urge the ground that the award of the advocate's fee in the sum of Rs. 11350 is erroneous. Does Order XVII rule 15 enable a party to ask for rectification of what may be described as a supervening inaccuracy is the point to be considered. Can subsequent proceedings be invoked to challenge a correct order by a collateral attack by way of an amendment without resorting to any proceeding by way of an appeal or a review of the original order?

(14-15) The word 'inaccuracy' occurring in Order XVII rule 15 standing by itself is undoubtedly wide. That word is intended to cover cases not governed by the other words, namely, clerical or arithmetical error occurring therein. It is clear that clerical or arithmetical error means something which is manifest on the face of the record. If supervening inaccuracy can come within the ambit of the provision such inaccuracy cannot be evident or apparent on the face of the record.

If the word 'inaccuracy' is to be understood in the context as being cognate to or of the same genius as clerical or arithmetical error, then it must also be one that manifest itself on the face of the record and cannot be one of the kind which has to be spelt out as a result of other proceedings. In order to decide this question as to the scope of the applicability of the word 'inaccuracy' occurring in the rules, one has to resort to rules of interpretation of Statutes.

(16) General terms occurring in a Statute may be restricted by specific words with which they are associated, with the result that the general language will be limited by the specific language which indicates the statute's object and purpose. Crowford on Statutory Constitution sets out the rule at page 323 under the caption 'Noscitur a sociis' thus:

'In order to ascertain the meaning of any word or phrase that is ambiguous or susceptible to more than one meaning the court may properly resort to the other words with which the ambiguous word is associated in the statute. Accordingly if several words are connected by a copulative conjunction, a presumption arises that they are of the same class, unless, of course, a contrary intention is indicated.'

Maxwell on Interpretation of Statutes sets out the rule thus at page 332:

'When two or more words which are susceptible of analogous meaning are coupled together noscitur a sociis, they are understood to be used in their cognate sense. They take, as it were, their color from each other, that is, the more general is restricted to a sense analogous to the less general'

In Blackwood v. R. (1882) 8 A. C. 82, the Judicial Committee observed thus at p. 94:

'The Lordships conceive that one of the safest guides to the construction of sweeping general words, which it is difficult to apply in their full literal sense, is to examine other words of like import in the same instrument, and to see what limitations must be imposed on them. If it is found that a number of such expressions have to be subjected to limitations or qualifications, and that such limitations or qualifications are of the same nature, that form a strong argument for subjecting the expression in dispute to a like limitation or qualification.'

In Cox v. Hakes, (1890) 15 A. C. 506, Lord Hershell observed thus:

'It cannot, I think, be denied that, for the purpose of construing any enactment, it is right to look not only at the provision immediately under construction, but at any others found in connection with it, which they may throw light upon it, and afford an indication that general words employed in it were not intended to be applied without some limitation.'

We are of opinion that the above rule of construction can properly be applied to find out the scope and meaning of the expression 'inaccuracy' occurring in Order XVII rule 15 of the Original Side Rules. If there is no inaccuracy manifest on the face of the record just like a clerical or arithmetical error the court has no jurisdiction to act under the said rule and direct amendment.

(17) In the present case the advocate's fee of Rs. 11350 was fixed as part of the costs awarded in favour of the successful defendant on the valuation of Rs. 15 lakhs. The defendant must have naturally paid his counsel at least the sum of Rs. 11350 in the faith and belief that he would be entitled to recover it as part of his costs from his adversary. His belief was justified and he was awarded the costs and he was also able to collect it from the plaintiff. Any amendment of the decree for costs by substitution of Rs. 2193-5-4 for Rs. 11350 will now enable the plaintiff to get back a sum of Rs. 9155-10-8 from the defendant who will certainly be hard hit by any such order for refund. It is now settled rule that the discretion which the court has to direct an amendment should not be exercised when the result of such amendment would affect the rights of third parties or which would be inequitable and unfair to one of the parties.

'Where an error of that kind has been committed it is always within the competency of the court, if nothing has intervened which would render it inexpedient or inequitable to do so, to correct the record in order to bring it into harmony with the order which the Judge obviously meant to pronounce.' (Per Lord Watson in Hatten v. Harris, 1892 A. C. 547; Stewart v. Rhodes, 1900-1 Ch. 386. R. v. Cork Country Council, (1911) 2 I. R. 206, Annual Practice, 1960 Edn. page 633).

We are of opinion that the application filed by the plaintiff before the learned Judge on the Original Side of this court is not maintainable as there are no grounds to sustain it and that even if the application can be held to be maintainable the circumstances are such that the discretion should be exercised not in favour of the amendment but in refusing it.

(18) It was argued before us by Mr. V. Thyagaraja Aiyar, learned counsel appearing for the respondent, that there is no inaccuracy in the record, calling for an amendment and that even on the basis of the amended valuation found in the plaint, it will be open to the taxing officer to fix the advocate's fee in the sum of Rs. 11350. The learned counsel relied upon the decisions of the Bombay High Court, reported in Meherbai v. Maganchand, ILR 29 Bom. 229 and Kasanji Kuverji v. Surat Municipality, : AIR1928Bom247 .

Mr. V. C. Gopalaratnam, submitted counsel appearing for the appellant, submitted that these decisions cannot apply to the facts of the present case, which are governed by the provisions of the fees rules which make it clear that the valuation adopted in the plaint alone can be the basis for the taxing officer in awarding the Advocate's fee to be included in the costs. In view of our decision holding that the application itself is not maintainable, it is unnecessary for us to express any opinion on this matter. It is also unnecessary for us to express any opinion on the question of refund by way of restitution in the event of the amendment being granted.

(19) The appeal fails, on the short ground that the application itself is not maintainable on the admitted facts of the case and is therefore dismissed with costs.

(20) Appeal dismissed.


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