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Moparthi Nayudamma and ors. Vs. Zamindar of Devarakota - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in131Ind.Cas.16
AppellantMoparthi Nayudamma and ors.
RespondentZamindar of Devarakota
Excerpt:
madras legal practitioner's fee rules, 1925, rules 31, 37 (b) - suit for declaration and injunction of right to fishery--mode of valuation--value not shown to be less than rs. 1,000--pleader's fee. - .....which relates to declaratory suits. this is a suit for declaration followed by injunction. if the subject-matter is capable of valuation, we are thrown back on rule 31. but the subject-matter here is a fishery and it is not capable of valuation according to the rules in the court fees act, section 7, sub-section 5. we must, therefore, refer to rule 37 (b) (2) and under this the subordinate judge can fix a fee between rs. 25 and rs. 100. it is said by the learned advocate for the appellant that the plaintiff himself valued the declaration at rs. 50 in the plaint, but this seems to be merely a mistake. the plaintiff should value only the injunction and he had no business to value the declaration. even if he can value the declaration, that does not help us. under section 37 what we have to.....
Judgment:

Vepa Ramesam, J.

1. The only point raised in this second appeal relates to the amount of Pleader's fee awarded by the lower Appellate Court to the successful plaintiff. The suit was for a declaration in respect of the right of fishery and injunction. The plaintiff succeeded in both Courts. In, appeal Rs. 50 was given as Pleader's fee. The learned Advocate for the appellant argues that the Pleader's fee ought to be only Rs. 25 under Rule 31 of the Legal Practitioner's Fee Rules issued in 1925. Under Rule 31 (b) (1) the minimum fee is Rs. 25 for all cases not falling under Clause 1, 2, 3 of Section 7, Court Fees Act or under Clause 4, Sub-clause (f) of that section. But Mr. Raghava Rao relies on Rule 37 (b) which relates to declaratory suits. This is a suit for declaration followed by injunction. If the subject-matter is capable of valuation, we are thrown back on Rule 31. But the subject-matter here is a fishery and it is not capable of valuation according to the rules in the Court Fees Act, Section 7, Sub-section 5. We must, therefore, refer to Rule 37 (b) (2) and under this the Subordinate Judge can fix a fee between Rs. 25 and Rs. 100. It is said by the learned Advocate for the appellant that the plaintiff himself valued the declaration at Rs. 50 in the plaint, But this seems to be merely a mistake. The plaintiff should value only the injunction and he had no business to value the declaration. Even if he can value the declaration, that does not help us. Under Section 37 what we have to see is whether the subject-matter in respect of which relief is claimed is capable of valuation. I think that, either the right of fishery is not capable of valuation or, if it is capable of valuation, there is nothing to show that its value is less than Rs. 1000, on which the fee would be Rs. 50.' It is not necessary, to disturb the order of the Subordinate Judge. The second appeal is dismissed with costs.


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