T. Ramaprasada Rao, J.
1. The aggrieved plaintiff who is not satisfied with the order passed by the learned District Judge, East Coimbatore, on the question of adequacy of Court-fee paid, is the petitioner.
2. It is common ground that the petitioner secured a decree for possession and for mesne profits, past and future. The future mesne profits were ascertained by the trial Court in an enquiry under Order 20, Rule 12, C.P.C. As a result of such an enquiry into mesne profits, the ultimate decree was passed. But while passing the decree, the trial Court was of the view that the plaintiff was not entitled to the rate of mesne profits as claimed, but to a lesser amount. Aggrieved by this, the plaintiff preferred an appeal to the District Court. The learned District Judge passed the following order; 'Court-fee is to be paid on the difference at the rate of Rs. 1,700 from the date of suit till the date of appeal. Returned. Time, 3 weeks.'
3. Mr. Mani challenges this order on the following grounds: The excess mesne profits which he is claiming in the appeal is yet to be determined by the appellate Court, and it is therefore premature to call on the plaintiff to pay or suffer an additional Court-fee on the basis of the increased mesne profits claimed before the Court below which ultimately was not granted to him. Secondly, it is said that as an appeal is a continuation of the suit and as under the provisions of the Tamil Nadu Court Fees Act, to wit, Section 44, read with Section 52, the question of the Court-fee, if any, payable by him on the increased amount as fixed by the Court below, would only arise after final ascertainment of such quantum by the appellate Court at the time of the final disposal of the appeal. On the other band, the learned Government Pleader would say that as the appeal is against a final decree as such, the party challenging the same should pay the Court-fee on the subject-matter of that appeal and he cannot wait till the profits are once again ascertained in the appellate Court and take advantage of such ascertainment, if he could take any such advantage of it at all. Reliance is placed upon the decisions of this Court and a decision of the Andhra Pradesh High Court. In a case where a litigant seeks for a primary relief and the ancillary relief of mesne profits, he has the option to ask for past mesne profits as well as for the ascertainment or for the grant of future mesne profits. If no relief is asked for regarding future mesne profits, no question arises. But if once such relief is asked for, it is now well-settled, having regard to the scheme of the provisions of the Civil Procedure Code, read with the provisions of the Court-fees Act, the plaintiff only need pay Court-fee on past mesne profits and on the date when he enters into the portals of the Court with his Us, he need not pay any Court-fee on the future mesne profits, though claimed by him. It is to alleviate any inconvenience or escape in the matter of payment of Court-fees, Section 44 of the Tamil Nadu Court-fees and Suits Valuation Act, 1955 (hereinafter referred to as the Court-fees Act) has made it clear that if the profits ascertained to be due to the plaintiff are in excess of the profits as approximately estimated and sued for, no decree shall be passed until the difference between the fee actually paid and the fee that would have been payable had the suit comprised the whole of the profits so ascertained is paid' A similar provision regarding the passing of the final decree is also provided for in Section 44 (2). Thus the State has secured for itself a right to recover Court fee, once an apparent' escapement in its payment occurs in suits for mesne profits. In the case under consideration, it is not disputed that the future mesne profits were also ascertained and the trial Court found that a particular amount was payable as and towards future mesne profits. But on the interpretation of the pleadings in the instant case, the trial Court did not grant such a decree in favour of the plaintiff, though it found that a particular amount was payable to him, because it was of the view that the plaintiff is only entitled to an amount lesser than the amount found by it. In any event such a decree for mesne profits granted by the trial Court ought to be viewed as a final decree under Order 20, Rule 12 (2), C.P.C., which provides that where an enquiry under Clause (b) or Clause (c) is held and a final decree in respect of the mesne profits is passed in accordance with the result of such inquiry, it should be terminologically called a final decree. That it is legally and factually a final decree gained acceptance by a pronouncement of a Division Bench of this Court in Pitta' Balaman naidu v. Pitta Songa Naidu : (1922)42MLJ184 . In a similar context, the Division Bench held that the appeals therein must be treated as appeals against a final decree under Order 20, Rule 12 (2), C.P.C., and an ad valorem Court-fee must be charged under Article 1 of Schedule 1 of the Court-Fees Act, calculated on the amount of mesne profits in dispute (underlining mine), This was followed by a decision of the Andhra Pradesh High Court in In re: Kudappa Subbamma' Subba Rao, C.J., speaking for the Bench, observed as follows:
In a suit for mesne profits whether past or future, if the mesne profits are ascertained and decreed, the party preferring an appeal should pay Court-fee on the amount or value of the subject-matter in the appeal. If the defendant files an appeal, seeking to get rid of the decree in whole or in part he will have to pay Court-fee in whole or in part on the amount decreed which he seeks to vacate. If a plaintiff seeks to file an appeal questioning the correctness of the amount ascertained and decreed in his favour, the subject-matter of the appeal will be the excess amount he claims to have over that already awarded to him, and therefore, he will have to pay ad valorem Court-fee on the additional amount he claims. In either case, the mesne profits are ascertained and the party, be he a plaintiff or a defendant, knows the exact amount, which is the subject-matter of appeals.
I respectfully adopt this statement of law which is so lucid and clear on the point.
4. In order to complete the citations, Ramaswami, J, who had occasion to deal with a similar question in Badrajala Naidu In re : (1958)1MLJ99 . again reiterated that an order in a suit determining the quantum of mesne profits payable subsequent to the filing of the suit will amount to a final decree within the meaning of Order 20, Rule 12, C.P.C., and as such in an appeal against such an order the Court-fee has to be computed on ad valorem basis depending on the amount of mesne profits in dispute in the appeal.
5. Reliance is placed by Mr. Mani on a decision of a division bench of the Madhya Pradesh High Court in Shivaji v. Deoji : AIR1974MP123 . I am afraid that the real question that is mooted before me was not the subject-matter before their lordships there. The Court even in that case reiterated the principle that when once mesne profits are ascertained after enquiry the resultant order passed would be a final decree within the caning of Order 20, Rule 12(2). They referred to the earlier decisions of our High Court also. But they did not consider the question whether in an appeal the party such as the plaintiff in this case who question: the grant made by the trial Court in relation to mesne profits, should only pay Court-fee on the amount granted by the, trial Court under certain stated circumstances or he should pay such Court-fee on the amount claimed by him which, to respectfully adopt the phraseology of the earlier pronouncement of our High Court, 'is in dispute in the appeal.' The indisputable fact is that the subject-matter of the appeal relates to the higher figure of mesne profits which was duly ascertained by the trial Court. The trial Court limited the grant of mesne profits to a lesser figure because it thought that the plaintiff limited his claim to that amount. Whether it is right is the subject-matter of the appeal. Obviously therefore the plaintiff wants a much higher figure of mesne profits than that ascertained by the trial Court. The difference between the two is the subject-matter in the appeal. The appellant-petitioner therefore is bound to pay ad valorem Court-fee on such difference.
6. The mere fact that Section 44 (2) of the Court-fees Act enables the Court not to pass a final decree till the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits accrued till such date of decree is paid, does not enable the plaintiff, who comes to the appellate Court, and asks that forum to give him a specific relief which is quantifiable in terms of money and which quantification as computed and related to the final decree for mesne profits passed by the trial Court, to escape paying such ad valorem Court-fee on the difference on the only ground that the trial Court limited his entitlement to a figure lesser than the actual amount as ascertained by it.
7. The order of the District Judge says that the appeal is against the decree awarding past mesne profits at Rs. 500 per annum from 20th September 1960, till 20th September, 1961, and thereafter at the same rate till date of delivery of possession. The plaintiff as appellant claimed mesne profits in the appeal at the rate of Rs. 2,200 per annum. The plaintiff paid Court-fee only on Rs. 500 and no more. In those circumstances, it was that the District Judge directed that he should pay Court-fee on the difference of the claim and should not restrict such payment to sum of Rs. 500 only per year granted by the Court below on an interpretation of the pleadings. It is therefore clear from the facts that the plaintiff knew the purpose for which he filed the appeal. By understanding this purpose, he knew also as to what Court-fee he should pay to obtain the relief which he geeks in the appellate Court. He cannot seek for an indulgence to pay such Court-fee after the disposal of the appeal and after the passing of the appellate final decree. What he is seeking for, is a relief which is computable in terms of money in accordance with the final decree passed by the trial Court. He has to therefore pay the Court-fee if he wants to prosecute his appeal at the rate of Rs. 1,700 per year towards mesne profits.
8. The petitioner is granted six weeks time to pay the additional Court-fee if he desires to prosecute the appeal. No costs.