Skip to content


Muhammad HussaIn Vs. Shaik Muhammad Malumiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1936Mad525; 163Ind.Cas.822
AppellantMuhammad Hussain
RespondentShaik Muhammad Malumiar
Excerpt:
- - it seems to me that the best course in the circumstances is to set aside the order of the lower court as regards court-fee and also to say that that order should not be regarded as any final adjudication on issue 3. the suit will be treated as properly instituted so far as payment of court-fee is concerned and disposed of on the merits......the plaintiff was bound to value his suit at the specific sum of rs. 1,873-12-6 as if it was a suit for money. even assuming that a mala fide under valuation of a suit governed by section 7, clause 4(f), court-fees act may be open to objection by the court, the learned district munsif has not based his order on that ground. he seems to regard the reference to the letter of april 1928 in the plaint as making the suit one for recovery of at least that amount. this view ignores the whole frame of the suit because, whether in april 1928, that statement of account represented the correct balance or not and whether the plaintiff is entitled to re-open the account prior to that date or not, the plaint proceeds on the footing that the defendant continued to be the plaintiff's agent up to.....
Judgment:
ORDER

Varadachariar, J.

1. This revision petition arises out of the decision of the District Munsif of Negapatam on certain preliminary issues in O.S. No. 232 of 1933. It is rather unfortunate that Issues 3 and 15 were dealt with together. Issue 3 related to the question of the maintainability of the suit as framed. Issue 15 raised the question whether the suit was properly valued and whether proper court-fees were paid. The District Munsif states his conclusion as follows towards the end of para. 4 of his order:

Plaintifi is bound to frame his suit as one for the recovery of a specific sum of money and pay ad valorem court-fees thereon. He is informed that he could not value his suit at Rs. 400 under Section 7, Clause (iv) (f) but should value it at Rs. 1,873-12-6 under Section (7) Clause (1), Court-fees Act.

2. The basis for the above direction, so far as I am able to gather, is that in para. 3 of the plaint there is a reference to an account sent by the defendant to the plaintiff in April 1928 wherein it was stated that a sum of Rs. 1,873-12-6 of the plaintiff's money remained in the defendant's hands. In para. 4, the plaint went on to say:

Even in the said account several items of debit are false and fraudulent. The opening balance itself is not correct and is grossly understated. The plaintiff repudiates in particular all the items entered as on 21st April 1928.

3. In para. 5 the plaint stated:

The defendant continued to look after the plaintiff's affairs and acted as his agent till his power of attorney was cancelled in April 1932.

4. In para. 6, it is alleged:

The plaintiff believes that on the defendants rendering a true account, a very large sum of money will be found payable to him.

5. The plaintiff tentatively valued the amount at Rs. 400. Among the various pleas, the defendant set up a plea that the statement of account sent by him in April 1928 has been accepted by the plaintiff and he is therefore not entitled to sue for accounts for the period prior to 21st April 1928. The defendant was of course entitled to raise such a plea. But that will be a defence to the suit on the merits. I cannot understand how it will make the suit unsustainable. It is one thing to say that the suit must be dismissed because accounts have been duly rendered and accepted, but a different thing to say that the suit as framed is not sustainable. I do not wish to say anything more on that plea at this stage lest it should embarrass the lower Court to which I am sending the case back. On the facts above set out, I am unable to agree with the lower Court that the plaintiff was bound to value his suit at the specific sum of Rs. 1,873-12-6 as if it was a suit for money. Even assuming that a mala fide under valuation of a suit governed by Section 7, Clause 4(f), Court-fees Act may be open to objection by the Court, the learned District Munsif has not based his order on that ground. He seems to regard the reference to the letter of April 1928 in the plaint as making the suit one for recovery of at least that amount. This view ignores the whole frame of the suit because, whether in April 1928, that statement of account represented the correct balance or not and whether the plaintiff is entitled to re-open the account prior to that date or not, the plaint proceeds on the footing that the defendant continued to be the plaintiff's agent up to 1932 and asks for an account of all moneys that came to the defendant's hands. I cannot accept the contention advanced before me on behalf of the respondent that the suit is not either in form or in substance a suit for an account. It seems to me that the best course in the circumstances is to set aside the order of the lower Court as regards court-fee and also to say that that order should not be regarded as any final adjudication on Issue 3. The suit will be treated as properly instituted so far as payment of court-fee is concerned and disposed of on the merits. The costs of this civil revision petition will abide the result.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //