Ramachandra Iyer, J.
1. This reference arises out of petitions filed under Article 133 of the Constitution for grant of leave to appeal to the Supreme Court against the decree and judgment of this Court in A.S. Nos. 286 and 376 of 1955. The judgment of this Court affirmed that of the trial Court. It has been found that the appeal involves the determination of a substantial question of law. All that remains to be ascertained is whether the subject-matter of dispute in the Court of the first instance and still in dispute in the appeal was and continues to be not less than Rs. 20,000.
2. The suit, out of which the appeal arises, was valued by respondents 1 and 2 who were the plaintiffs at Rs. 9,650. They succeeded in the Court of the first instance. When the petitioners, (defendants in the suit) filed appeals to this Court, they adopted that value, as indeed they were bound to do, for the purpose of payment of the necessary Court-fee for the appeals. Petitioners now state that the aforesaid value, as estimated by respondents 1 and 2 and even as adopted by them, was erroneous, and that the real value of the properties was and continued at all material times to be more than Rs. 20,000. It is contended that the petitioners should not be allowed to go behind the value adopted by them in the appeals and show what the real value is. Different views have been expressed on the question whether the petitioners could be permitted to do so. In Venkatarayudu v. Venkanna : AIR1927Mad862 , Ramesam and Venkatasubba Rao, JJ., held that a plaintiff who adopted a particular value in regard to the subject-matter of a suit in the plaint would not be absolutely precluded from showing the real value when a question arose in connection with his right of appeal to the Privy Council. A different view was taken recently by Basheer Ahmed Sayeed and Subrahmanyam, JJ., in S.C.P. Nos. 7 and 8 of 1959. In view of this conflict, the following question has been referred to the Full Bench for opinion.
Whether for ascertaining the value of the subject-matter in dispute for the purpose of Article 133 of the Constitution and Section 110, Civil Procedure Code in the Court of the first instance or in the proposed appeal it would be open to any party, be he the plaintiff or defendant, to go behind the valuation adopted in the plaint or in the moemorandum of appeal as the case may be and show the real value thereof.
3. The question has primarily to be considered in the light of Article 133 of the Constitution and Section 110, Civil Procedure Code. Those provisions confer a right on a party to appeal to the Supreme Court against a judgment, decree or final order in a civil proceeding of a High Court if it certifies that the case satisfies the conditions laid down therein. One of the conditions so laid down for cases coming under Clauses (a) and (b) of Article 133 is that the value of the subject-matter in the suit and in the proposed appeal should not be less than Rs. 20,000. Thus the right of appeal is a constitutional right in the cases specified; it cannot be prima facie impaired or affected by an erroneous statement as to the value of the subject-matter by a party, whether such statement is made deliberately or otherwise. The question whether in a particular case the value of the relevant subject-matter is such as entitles a party to appeal to the Supreme Court is one of fact to be decided by the Court when it arises. The determination of such a question will be governed by the ordinary procedure of the Court deciding, and rules of procedure and evidence like res judicata, probative value of admissions, estoppel, etc., would apply. It is at that stage the question would arise whether a party who wishes to appeal to the Supreme Court could be allowed to plead and prove a fact contrary to his statement as to the value of the subject-matter at an earlier stage. In other words, the constitutional or statutory right of appeal cannot be curtailed by an erroneous statement as to valuation by the party seeking a certificate, but when the question of value of the subject matter has to be ascertained, the rules of procedure and evidence might, in certain cases, debar him from pleading and proving the true value thereof.
4. Where a party who seeks a certificate under Article 133(a) or (b) or one who opposes the grant of such certificate wants to allege that the value given or adopted by him at an earlier stage of the litigation is not the true or real value, he would undoubtedly be taking an inconsistent position. It is undesirable that a party should be allowed to take up inconsistent positions in a Court of law. That rule is a rule of prudence and in its application has its limitations. An erroneous statement as to value made at an earlier stage cannot deprive a party of a right; it will only prevent a party from' proving the real value in certain circumstances.
5. Before considering the circumstances under which a party would be held precluded from going behind his own earlier statement of the value, it is necessary to consider the relevant statutory provision which obliges him to give the value.
6. Order 7, Rule 1, Civil Procedure Code prescribes the particulars to be contained in a plaint. Clause (1) thereof requires that the plaint should contain 'a statement of value of the subject-matter of the suit for the purpose of jurisdiction and of Court-fee so far as the case admits'. In the case of appeal, Order 41, Rule 1(2)(Madras Amendment) prescribes only the statement of values for purposes of Court-fee. The Suits Valuation Act which governs the value of the suit for jurisdictional purposes provides for a notional or artificial valuation in certain types of cases and for the real or market value in others. The first type of cases presents no difficulty, and it is now well settled that it would be open to any party to show what the real value of the property is when a question arises under Section 110, Civil Procedure Code vide Baboo Lakraj v. Kunhya Singh (1873) L.R. 1 IndAp 317. In the latter class of cases, where a plaintiff is obliged to give the real value, there is no doubt that the defendant would be entitled to contest the value. Whether the latter is bound to do so, and if so, in what casest we shall presently consider.
7. The value for purposes of Court-fee has to be made in certain cases according, to the market value. The defendant can object to the valuation given in the plaint g but his objection would be limited to raising the question in the trial Court alone. In case his objections are overruled, he cannot even challenge the correctness of the order under Section 115, Civil Procedure Code. Vide Secretary of State for India v. Raghunatha (1933) 65 M.L.R. 25 : I.L.R. Mad. 744. Section 12 of Act VII of 1870 provides that in case of dispute the cision of the trial Court as to valuation for the purpose of Court-fee would be final between the parties to the suit, and except in a limited class of cases covered by Sub-section (2) and when the question had been wrongly decided to the detriment of revenue the appellate Court would have no power to determine the correct amount of Court-fee payable. There is a similar provision in the Madras Court-fees Act of 1955. A valuation simpliciter for Court-fees purposes given by the opposite party or even adopted by the defendant in the appeal cannot, on principle be held to preclude him from showing the real value.
8. The question then arises whether in regard to jurisdictional value the defendant is bound to object to an incorrect valuation made by the plaintiff. Order 8, Rule 2: Civil Procedure Code which refers to the matters which a defendant should raise in his pleading, states that he should raise all matters which show the suit not to be maintainable. Payment of insufficient Court-fee would render the suit not maintainable; but that plea has only a limited scope for adjudication. Again, if the real value of the subject-matter of the suit was such that the Court entertaining the suit would have no jurisdiction, it would be his duty to plead that the value given in the plaint was wrong. It would follow that, even though the valuation given in the plaint was erroneous there would be no duty on the defendant to raise a plea as to the real value, if even, by adopting the real value the jurisdiction of that Court will not be affected. Order 8, Rule 2, refers only to a plea relating to the maintainability of the suit and not one for safeguarding a right of appeal in the possible event of the defendant failing. Thus questions of Court-fee apart, where the determination of the real value of the subject-matter of the suit would not involve a change of forum of the suit, the defendant would be under no obligation to raise objections to valuation, though he would have an option to do so.
9. On behalf of the respondents, it is contended that a defendant is in all events bound to challenge an incorrect valuation of the plaint, and if he fails to do so, that value should be deemed to have been accepted by the Court and on principles analogous to res judicata. Mr. T.M. Krishnaswami Iyer pursued that argument and submitted that a right of appeal to the Supreme Court would depend on the valuation given in the plaint and a defendant is bound to anticipate or envisage the possibility of his failing in the High Court and safeguard his further right to appeal. As we understand it, the argument is not to the effect that the defendant was under an obligation to obtain an adjudication as to the real value of the property, but rather to see that the Court holds that the value is above Rs. 20,000 it being unnecessary to determine the precise value about it. Neither of the two aspects of the argument is correct. A right to appeal to the Supreme Court does. not depend on the valuation adopted in the plaint but on the value of the subject-matter of the suit. It is true that the institution of a suit carries with it the implication, that the right to appeal then existing would be preserved to the litigant except where the Legislature altered it; but that does not mean that by a wrong valuation a party can either confer on himself a right of appeal or deprive his opponent of such a right. Order 8, Rule 2, Civil Procedure Code, only obliges the defendant to raise all questions to show that the suit is not maintainable; neither that provision nor any principle of law casts an obligation on a defendant to raise pleas as to valuation in the trial Court itself to safeguard a right of appeal to the Supreme Court in the contingency of his failure in the High Court. There is thus no obligation on the defendant to raise any question as to the correctness of the plaintiff's valuation except in cases where the jurisdiction of the Court would be ousted if the correct value were given. The principle of constructive res judicata cannot apply to cases where there was no duty on the defendant to contest the value by the plaintiff.
10. Yet another ground has been advanced for the application of the rule of constructive res judicata namely, where a plaintiff gives a lower valuation, the defendant's rights would be affected in that if the suit were dismissed, the latter would be deprived of the costs appropriate to the real value; in order to secure the full costs that he might be entitled to, it would be necessary for the defendant to plead that the value given by the plaintiff is less than the real value, and if he omits to do so, the Court, in awarding costs on the basis of the plaint value, should be deemed to have impliedly overruled a plea that the value was higher, as it has deprived him of the legitimate costs on the basis of a correct value. Support was sought for the argument from the decision in Brajasunder Deb v. Rajendra Narayan : AIR1941Pat269 . In that case the claim in the trial Court was valued at less than Rs. 10,000. That valuation was adopted in the High Court. During the pendency of the appeal in the High Court, the valuation was increased without objection by the defendant. In the appeal, costs were awarded to the defendant, the successful party, on the basis, of the revised valuation. When the plaintiff wanted to appeal to the Privy Council on the basis of the revised valuation, the defendant pleaded that the new valuation should not be accepted. The learned Judges rejected his contention on the ground that the revised valuation was accepted by the defendant, and he could not go back upon such acceptance. While dealing with that question the learned Judges stated:
As the present valuation of the suit was accepted without demur and a decree for costs based on such valuation actually enforced, it is not, in my view, open to the proposed respondent to contend at this stage that the value of the suit is not over Rs. 10,000.
In our opinion, the foregoing observations do not support any theory of res judicata on the basis of an adjudication regarding costs. The execution of the decree for costs was merely referred to as a circumstance showing the acceptance of the revised valuation by the defendant in that case. The arguments as advanced before us mixed up two different aspects, namely, a right to costs which would be a matter for judicial adjudication and taxation of costs which will vary with the value of the claim. Further, what a party can get by way of costs will be costs incurred. If the valuation is low, the party will (theoretically at least) incur a lesser sum as costs : he could get a higher amount taxed only if he incurs more, and it cannot be said that there is a right in a party to incur higher costs in order that he might recover it from the opposite party in the event of ultimate success.
11. Reliance was then placed on the observations contained in the judgments of Basheer Ahmed Sayeed and Subrahmanyam, JJ., in S.C.P. Nos. 7 and 8 of 1958 to the effect that where the defendant did not take any objection in his written statement to the market value as stated in the plaint it would not therefore be open to reconsideration in subsequent stages of the same litigation. In the view of the learned Judges the rule rests on the finality of an express or implied decision of a Court and not on any theory of approbate and reprobate. We are unable, with great respect to the learned Judges, to see how there can be any finality, apart from the principles of res judicata. Where, therefore, there is no duty on the part of a defendant, an omission to raise a plea as to valuation cannot attract the rule of res judicata, constructive or otherwise. In our opinion, except in cases where there has been an adjudication (express or implied) as to the value of the subject-matter of a suit in such a way as to constitute res judicata a mere omission on the part of the defendant to object to the valuation made in the plaint cannot bring in its wake any theory of implied adjudication, and thereby preclude him from showing at a later stage that the real value of the property was different. The same rule would apply to the case of the plaintiff as well.
12. The question then is, whether a party giving or adopting a particular value at an earlier stage of suit or appeal could be said to be estopped from showing its real value when his right to obtain a certificate under Article 133 has to be determined.
13. A mere erroneous valuation either for jurisdictional or fiscal purposes without more (except in cases where the adoption of the real value could alter the forum) cannot amount to a representation on which it can be said that the opposite party would suffer a detriment. Mr. T.M. Krishnaswami Iyer conceded that to such a case Section 115 of the Indian Evidence Act would not apply. But learned Counsel relied on the familiar principle that a person who made a representation on the faith of which another had acted should not afterwards be allowed to contradict the former statement in order to profit by the conduct which he had induced, and contended that when the defendant in the instant case took advantage of filing an appeal to this Court at a lower valuation by paying a lower Court-fee, he should be held to have secured an advantage, and it would not therefore, be open to him to change his position and say that the value of the subject-matter was higher. The contention is based on the familiar rule that a party to a litigation cannot both approbate and reprobate, the scope of which rule we will consider in a little detail presently? That its has been stated, is a rule essentially of logic rather than of law, based on the principle that, where a party to a litigation has deliberately taken a particular position (without being induced so to take it by the opposite party) he must act consistently with it. That principle cannot apply to the person misled. Therefore if a person is induced to take up a position by a mistake induced by the other partyj he cannot be pinned down to that position and prevented from pleading the truth.
14. The rule that a party cannot both approbate and reprobate, though a species of the law of estoppel, is different from it. In the case of an estoppel, the represented should have altered his position to his detriment : for the rule of approbate and reprobate to apply, the represent or must have obtained an advantage by the representation made or the stand taken by him. As we shall show, the rule in its origin was confined to cases of legatees and donees under wills and gifts who were precluded from accepting a benefit under the document and repudiating the same so far as it was disadvantageous to them. In Verchures Creameries Ltd. v. Hull and Netherlands Steamship Co., Ltd. L.R. (1921) 2 K.B. 608 , Scrutton, L.J., observed at page 611:
A plaintiff is not permitted to approbate and reprobate. The phrase is apparently barrowed from the Scotch law where it is used to express the principle embodied in our doctrine of election, namely, that no party can accept and reject the same instrument, Ker v. Wavchope (1819) 1 Bil 1 (21), Douglas Menzies v. Umphelby L.R. (1908) A.C. 224 (232). The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction.
This rule was subject of a more detailed examination in Lissmenden v. C.A.V. Bosch Ltd. L.R. (1940) A.C. 412, where the House of Lords referred to and defined the origin, scope and operation of it. In the course of his speech, Viscount Maugham observed that the phrase was of Scottish origin and was no more than a picturesque synonym for the ancient equitable English doctrine of election which was distinct from the common law principles of election of remedies and one confined in its application to wills, deeds and other instruments inter vivos. The principle was stated to be one of the presumed intention of the testator or the author of the instrument, namely, that legatee or beneficiary should not claim under the will or instrument and also adversely to it. It is essential, therefore, for the application of the rule that no person should be taken as having made an election until he had an opportunity of ascertaining his rights and was aware of the nature and extent, election being based on knowledge. Lord Atkin, referring to the subject of approbate and reprobate, observed at page 429:
In this country I do not think it expresses any formal legal concepts. I regard it as a descriptive phrase equivalent to 'blowing hot and cold.' I find great difficulty in placing such phrases in any legal category, though they may be applied correctly in defining what is meant by election whether at common law or in equity. In cases where the doctrine does apply the person conceded has the choice of two rights, either of which he is at liberty to adopt, but not both. Where the doctrine does apply, if the person to whom the choice belongs irrevocably and with knowledge adopts the one he cannot afterwards assert the other
In Broom's Legal Maxims, 10th Edition, while discussing the maxim Allegans contraria non est audiendus (He is not to be heard who alleges things contradictory to each other) it is stated at page 103:
We may for the present observe that it expresses, in other language, the trite saying of Lord Kenyon, that a man shall not be permitted to blow hot and cold with reference to the same transaction or insist at different times on the truth of each of two conflicting allegations according to the promptings of his private interest.
The principle variously known as approbate and reprobate, blowing hot and cold or as the equitable principle of election, was referred to by the Supreme Court in Nagu Bai v. Shyama Rao (1956) S.C.J. 655, where it was observed that the maxim that a person cannot approbate and reprobate was only one application of the doctrine of election and its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto.
15. The rule in its operation might enable a party to shut out truth from a Court of justice. It is, therefore, necessary to define its limits with precision. A mere erroneous statement at one stage of a litigation cannot without more be held to prejudice a statutory or other right of a party. While, therefore, it is necessary that there should be some rule to prevent a party playing fast and loose with a Court, there should be limitations placed on it conformably to the origin and principle of the rule. The rules as to election as stated in Halsbury's Laws of England, Volume 15, Simonds Edition in paragraph 340 at page 171 is:
On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais. The principle that a person may not approbate and reprobate expresses two propositions, first, that the person in question, having a choice between two courses of conduct is to be treated as having made an election from which he cannot resile, and second that he will not be regarded in general at any rate as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has pursued and with which his subsequent conduct is inconsistent.
The two essential elements of an election thus are (1) that the person who is electing should have a choice between two alternative courses and (2) he should derive an advantage by such choice. A plaintiff who makes an erroneous statement of value of the subject-matter, has certainly the choice between telling the truth and untruth, but where an erroneous statement is not made with the object of securing an advantage, e.g., having a forum of his choice, the principle cannot apply. A defendant adopting the valuation made by the plaintiff for the purpose of filing an appeal (without more) could not be said to have a choice in the matter as he is generally bound to adopt the valuation made by the opposite party. It is difficult to accept the contention of the learned Counsel for the respondent that a defendant should anticipate his losing the case in the trial Court and obtain from the Court an adjudication as to the proper valuation to enable him to file an appeal to a Court of his own choice. Secondly, the rule will not apply where there would be no change in the forum of appeal whether the original valuation was adopted or the higher valuation is put for ex concessi there would be neither an advantage gained nor a detriment suffered by any party.
16. In Banque Des Merchands De Moscow v. Kindersley L.R. (1951) Ch. 112, Evershed, Master of Rolls observed at page 119
The phrases 'approbating and reprobating' or 'blowing hot and blowing cold' are expressive and useful but if they are used to signify a valid answer to a claim or allegation they must be defined. Otherwise the claim or allegation would be liable to be rejected on the mere ground that the conduct of the party making it was regarded by the Court, as unmeritorious. From the authorities cited to us it seems to me to be clear that these phrases must be taken to express first that the party in question is to be treated as having made an election from which he cannot resile and second that he will not be regarded at least in a case such as the present as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his present action is inconsistent.
It is evident that where no advantage accrues to a party by making or adopting a wrong statement, no question of approbate and reprobate or blowing hot and cold can arise. In the instant case, no advantage accrued to the defendant by the lower valuation, because the appeal against the judgment of the trial Court would lie to the High Court whether on the original valuation or the revised one. When, therefore, he attempted to show that the subject-matter of the suit was of a higher value than what was stated in the memorandum of appeal to this Court, his attempt, to quote the words of Greer, L.J., in Mills v. Duckworth (1938) (1951) Ch. 112, was 'not to blow hot and cold but to blow hotter'. It will be seen that in several of the cases referred to in the order of reference the two conditions, namely, (1) the party having a choice of making one of two statements as to value and making one and (2) his deriving art advantage thereby, have been present and it was held that the party making the statement was held precluded from departing from it at a later stage. In Krishto Indro Saha v. Huromonee Dassee , the defendant by accepting the revised valuation of the plaintiff's derived an advantage by having his appeal before the High Court which he would not have had, had he not accepted it. In Rattayya v. Brakmayya : AIR1925Mad1223 , the plaintiff who originally valued his suit at Rs. 10,000 and filed an appeal to this Court was precluded from saying that the valuation was incorrect when the defendant sought to file an appeal to the Privy Council on the basis of such valuation. In Sri Rajah Vani Reddi Srichandra Moulsewara Prasada Bahadur v. The Secretary of State for India in Council : AIR1932Mad125 , the plaintiff originally valued the suit at an amount higher than Rs. 10,000. This was not objected to but adopted by the defendant who took advantage of it by filing an appeal in the High Court. But the latter contested the right of the plaintiff to appeal to the Privy Council when the High Court decided against him. Ramesam and Venkatasubba Rao, JJ., held that the value given for the purpose of Court-fee on the plaint should be taken to represent at least the minimum value. In Alagappa Chetty v. Nachiappan : AIR1923Mad125 , the plaintiff who valued the suit claim at less than Rs. 10,000 sought unsuccessfully to contend that the value was higher when he filed an application for leave to appeal to the Privy Council. Although there are certain passages in the judgment showing that the plaintiff had no right to repudiate the valuation once given, it cannot be held that the learned Judge intended to lay down any different rule as the case appears to have been decided on a question of fact. This is plain from the following observations of Oldfield, J., at page 734:
There is nothing, it is to be noticed, to explain how the petitioner came to adopt the market value of the property, on which his valuation had to be made, at a figure in the aggregate of Rs. 2,800. There is nothing as to the details, by which he now proposes to arrive at the higher figure he contends for. There should in my opinion be much stronger reason for allowing before a fresh enquiry into a matter on which the petitioner has already put forward his estimate can be allowed at this stage.
In Venkatarayudu v. Venkanna : AIR1927Mad862 , the plaintiff who wanted to file an appeal to the Privy Council attempted to show that the value of the subject-matter in appeal was beyond Rs. 10,000. The valuation given in the plaint in regard to the items which formed the subject-matter of the appeal was less than Rs. 10,000. The learned Judges held that the plaintiff was not absolutely precluded from saying that the valuation in the plaint was wrong. They observed:
The question arises, is the plaintiff bound by this valuation? Two views are possible. The first view is that the plaintiff is absolutely precluded from contending that his valuation in the plaint is wrong; secondly, that the Court will merely treat his admission as a strong piece of evidence against him. We think that the second is the correct view.
In making those observations, the learned Judges held that the decision in Kristo Indro Sahu v. Huromonee Dassee , was a case where the defendant had taken advantage and benefited by the plaintiff's valuation but when it suited him contended that the original valuation was incorrect. The case where a defendant could be said to derive an advantage by reason of an incorrect valuation by the plaintiff, is illustrated by the two dicisions of the Calcutta High Court in Rameshwar v. Siddeshwar : AIR1927Cal418 and in Mahendranarayan v. Janakinath : AIR1931Cal417 . In both the cases the plaintiffs valued the suit so as to come within the jurisdiction of a District Munsif 5s Court. The defendant accepted the valuation and filed an appeal against the decision in the District Court and a Second Appeal was thereafter taken by the plaintiff who succeeded in the High Court. With a view to appeal to the Privy Council, the defendant attempted to prove at a later stage that real value of the property was different from the one made by the plaintiff. It was held that he could not do so, as he obtained an advantage by adopting the lower valuation in that he was enabled to appeal to the District Court. The true principle, if we may say so with respect, was laid down in Radhika Nath v. Midnapore Zamindari Co. : AIR1937Cal292 , where the plaintiff valued the suit at less than Rs. 10,000 and filed it in the Sub-Court. The suit was decreed and the defendant in filing the appeal to the High Court adopted the plaint valuation. He succeeded in the High Court. The plaintiffs applied for leave to appeal to the Privy Council stating that the real value of the property was more than Rs, 10,000. That was a case where no change of forum of the appeal was involved, even if the real value had been adopted by the plaintiff in the first instance. The learned Judges observed at page 296:
On the other hand the trend of authorities is to the effect that whether by way of estoppel or res judicata the Courts have considered whether the question of valuation has been raised and decided at an earlier stage and also whether the opposite party has been led to act upon such valuation, as for instance by way of Second Appeal; or to put it in another way whether the party seeking to vary the valuation for the purpose of appeal to England is in the position of approbating and reprobating. Where this is the case, variation of value should not be allowed. But where this is not the case, a party should not be shut out from his right to appeal, to England merely because of an erroneous valuation in the plaint.
This view was affirmed in Annapurua Cotton Mills v. Bahaduri : AIR1958Cal187 ., where the learned Judges held that except in cases where some advantage had been obtained by the person who had made or adopted a lower valuation on the basis of such lower valuation as against the opposite party, the doctrine that a person cannot approbate and reprobate had no application and that even the person who had made the lower valuation would not be precluded from showing the real value. In our opinion, principle and authority alike support the view taken by Ramesam and Venkatasubba Rao, JJ., in Venkatarayudu v. Venkanna : AIR1927Mad862 . It would follow that the observations of Basheer Ahmed Sayeed, and Subrahmanyam, JJ. in S.C.P. Nos. 7 and 8 of 1958, cannot be accepted as a correct statement of the law. In that case a specific issue as to the correctness of the valuation was raised and given up. The judgment of the learned Judges can perhaps be supported on the principle of res judicata but we cannot agree with the view that independent of any rule analogous to res judicata an erroneous valuation by a plaintiff, if acquiesced in by the defendant, would preclude the latter from showing the real value of the subject-matter at a later stage. Nor can we agree that the rule of approbate and reprobate will in no circumstances apply to such cases. In our opinion, that rule would apply to cases where the two conditions as to its applicability are satisfied : where they are not satisfied, a mere erroneous valuation of the subject-matter of the suit by a party at one stage of the suit or appeal will not preclude him when the question arises for the issue of a certificate under Article 133 of the Constitution.
17. We answer the question referred to us in the following manner. It would be open to any party, be he the plaintiff or defendant, to go behind the valuation adopted in the plaint or in the memorandum of appeal, as the case may be, and show the real value of the subject-matter in dispute except where (1) there has been a judicial adjudication of the correctness of the original valuation in such a way as to attract the principle or the rule of res judicata or (2) where the party making the original valuation or the one adopting it had an option to give that value or the correct value and while exercising the option by giving one of such values he gained for himself an advantage or made the opposite party suffer a detriment.
18. The petitions coming on for hearing before the Division Bench (Rajagopalan and Ramachandra Iyer, JJ.) after the expression of the opinion of the Full Bench:
Ramachandra Iyer J.
We have already held that the case raises substantial questions of law. The valuation of the subject-matter of the suit as well as the value of the proposed appeal has been found by the learned Subordinate Judge to be above Rs. 20,000. We accepted that valuation as representing the value on the date of the plaint as well as the subject-matter of the proposed appeal. The only question that was left outstanding was whether it was open to the defendants to go behind the valuation adopted by them in the appeal before this Court. On that question the Full Bench has answereed the question in the affirmative. The petitioners will therefore be entitled to a certificate under Article 133 (1)(a) and the appeal involves a substantial question of law.
19. The consolidation sought for will be allowed except in regard to the payment of Court-fee.