Skip to content


ijjatulla Bhuyan Vs. Chandra Mohan Banerjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1907)ILR34Cal954
Appellantijjatulla Bhuyan
RespondentChandra Mohan Banerjee
Cases ReferredKishori Lal Roy v. Sharut Chunder Mozumdar
Excerpt:
valuation of suit - appeal--forum of appeal,--bengal, n.w.p. and assam civil courts act (xii of 1887) section 21--suit for recovery of land and mesne profits--court-fees act (vii of 1870) section 11. - mookerjee, j.1. under section 8 of the suits valuation act, valuation for the purpose of court-fees is, in a case like the present, the same as that for jurisdiction; in a suit for mesne profits court-fees are levied on two occasions, at the institution of the suit and again when the mesne profits are ascertained. does not that show that the value of the suit must be the total value of the mesne profits as ascertained?]2. if the determination of the value is to be determined by the final adjudication, what is to be regarded as the final adjudication--adjudication by the first court or by the final court of appeal? the result would be extremely anomalous; the adjudication of the first court may show the value to be beyond the limits of its jurisdiction, so that the entire trial must be.....
Judgment:

Mookerjee, J.

1. Under Section 8 of the Suits Valuation Act, valuation for the purpose of court-fees is, in a case like the present, the same as that for jurisdiction; in a suit for mesne profits court-fees are levied on two occasions, at the institution of the suit and again when the mesne profits are ascertained. Does not that show that the value of the suit must be the total value of the mesne profits as ascertained?]

2. If the determination of the value is to be determined by the final adjudication, what is to be regarded as the final adjudication--adjudication by the first Court or by the final Court of appeal? The result would be extremely anomalous; the adjudication of the first Court may show the value to be beyond the limits of its jurisdiction, so that the entire trial must be taken to have been void and the plaint must be returned to be presented to proper Court. Some definite meaning must be given to the expression 'value of the original suit' in Section 21 of the Civil Courts Act; the forum of appeal therefore is determined by the value of the suit and not by the amount decreed; and the value of the suit is the valuation put on the plaint except where the valuation is not bond fide but made merely to alter the venue. Section 50 of the Code says that in cases like the present the approximate rvalue stated in the plaint is to be taken as the value of the suit.

Rampini, A.C.J.

3. The question raised in the reference to this Bench is: 'Whether in a suit for possession of land and mesne profits which was originally valued at a sum below Rs. 5,000, but in which the whole amount actually found due, inclusive of mesne profits payable by the defendants to the plaintiff, is over Rs. 5,000, an appeal lies to this Court or to the District Court?'

4. I consider the general rule applicable to such cases as these has been correctly laid down in the case of Gulab Khan v. Abdul Wahab Khan (1904) I.L.R. 31 Calc. 365, and is to the effect that 'where a plaintiff definitely fixes a certain sum as the amount of his claim, this must be considered as the value of the original suit and the appeal will lie accordingly: but when he fixes a certain sum as the amount of his claim only approximately or tentatively and prays that the amount of his claim may be ascertained in the course of the suit, then the amount found by the Court to be due to him must be regarded as the value of the original suit for the purpose of determining the forum of appeal.'

5. Now to apply that rule to the facts of this case.

6. The plaintiff claimed (i) certain land, which is valued at Rs. 1,025, and mesne profits up to the date of institution of the suit, which he valued at Rs. 1,198-5-3. His definite claim therefore came to Rs. 2,223; (ii) mesne profits from the date of institution of the suit to the date of recovery of possession. He made no attempt to estimate the value of these mesne profits.

7. It is admitted that the amount of the mesne profits for the period from the date of the institution of the suit up to the date of recovery of possession, ascertained by the Court, when added to the definite claim made by the plaintiff, as explained above, and excluding interest which I do not consider should be taken into account when estimating the value of the original suit, far exceeds Rs. 5,000.

8. In these circumstances, I am of opinion that the appeal in this case lies to this Court. I would, accordingly, reply to the question put by the referring Judges that when in a suit for possession of land and mesne profits, which was originally valued at a sum below Rs. 5,000, and which was instituted in the Court of a Subordinate Judge, but in which the whole amount actually found due, inclusive of mesne profits payable by the defendant to the plaintiff, is over Rs. 5,000, an appeal lies to this Court and not to the District Court.

9. I would return this case to the referring Judges with this reply. Costs of this reference to be costs in the cause.

Brett, J.

10. I agree with the Chief Justice.

Mitra, J.

11. I agree with the Chief Justice.

Woodroffe, J.

12. I also agree with the Chief Justice.

Mookerjee, J.

13. The question which has been referred for decision to a Full Bench is 'whether in a suit for possession of land and mesne profits which was originally valued at a sum below Rs. 5,000, but in which the whole amount actually found due inclusive of mesne profits payable by the defendant to the plaintiff is over Rs. 5,000, an appeal lies to this Court or to the District Court.' This question, as will presently be shown, is formulated too broadly for the purposes of the decision of the case before the Court, and it need be considered only with reference to suits instituted in the Court of the Subordinate Judge; subject to this limitation, therefore, I purpose to examine the question.

14. The answer to the question referred depends upon the Construction to be placed upon Section 21 of Act XII of 1887 which provides that 'save as aforesaid,' that is, save as to the provisions of Section 20 which relates to appeals from District and Additional Judges, 'an appeal from a decree or order of the Subordinate Judge shall lie, (a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which, the decree or order was made, did not exceed Rs. 5,000, and (b) to the High Court in any other case.' The whole question turns upon the meaning to be attributed to the phrase 'value of the original suit.' It may be observe at the outset that the 'value of the original suit' means the value of the relief claimed in the original suit; and the three cardinal principles which the Legislature had in view when it made obligatory upon the plaintiff to value his suit were that the value should determine, first, the jurisdiction of the Court, secondly, the forum of appeal, and, thirdly, the amount of fees leviable on the plaint. We have no direct concern, on the present occasion, with the third of these grounds; but it is necessary to point out that under Section 8 of the Suits Valuation Act of 1887, the value of a suit as determinable for the computation of court-fees and the value for purposes of jurisdiction are identical, except in certain specified oases, namely, except in cases of suits for land, suits to enforce rights of pre-emption suits relating to mortgages and suits relating to specific performance of awards. It is also to be remembered that the valuation of a suit as made by the plaintiff may be either definite or approximate. In the first class of cases, it is open to the defendant to contest the valuation, and, should the objection prevail the Court may be called upon to proceed under Section 54 of the Civil Procedure Code, to reject the plaint, if the plaintiff, when the relief has been undervalued, declines to correct the valuation, or the Court may have to proceed under Section 57 of the Civil Procedure Code, and return the plaint for presentation to the proper Court on the ground that the suit has been instituted in a Court whose grade is lower or higher than that of the Court competent to try it. It is not necessary, for our present purpose, to investigate what principles may be applicable to the determination of the question of valuation of a suit, when a definite valuation has been put by the plaintiff, and such valuation has been successfully contested by the defendant, nor is it necessary to consider how the forum of appeal would be regulated in such cases. We are now concerned with the second class of cases in which the valuation put by the plaintiff on the relief claimed by him is indefinite, approximate or tentative. It is clear from Section 50 of the Civil Procedure Code that a plaintiff is at liberty to do so in certain classes of cases, for instance, in a suit for mesne profits, and in a suit for the amount which will be found due to the plaintiff on taking unsettled accounts between him and the defendant: in such cases, the plaint need only state approximately the amount sought to be recovered. In a case of this description, admittedly the value put upon the relief claimed is tentative and not final; and it cannot reasonably be argued that such approkimate valuation should determine the forum of appeal, The Court makes an investigation and determines the amount which the plaintiff is entitled to recover. If the plaintiff accepts the amount so adjudicated, and if it exceeds the approximate value stated by him in the plaint, he obtains a decree which becomes operative and practically available only upon payment of additional court-fees, which represents the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits or the amount decreed. When a plaintiff upon such adjudication accepts the amount determined by the Court, the value of the relief obtained by him, which is in substance also the relief claimed by him, is the value finally determined. In such a case, if the defendant prefers an appeal, he is entitled to proceed on the assumption that the real value of the original suit is the value as adjudged by the Court and accepted by the plaintiff. If such value exceeds Rs. 5,000, the appeal lies to this Court. This view is consistent with the principle laid down by this Court in the case of Gulab Khan v. Abdul Wahab Khan (1901) I.L.R. 81 Calc. 365, 869, where it is stated that if a plaintiff fixes a certain sum. as the amount of his claim only approximately or tentatively, and prays that the amount of his claim may be ascertained in the course of the suit, then the amount found by the Court to be due to him must be regarded as the value of the original suit for the purpose of determining the forum of appeal. It is necessary to observe, however, that the rule tuns formulated is too wide and may require qualification in certain cases. To take one illustration. Suppose a plaintiff values his suit for mesne profits approximately at Rs. 6,000. He obtains a decree in the Court of first instance for Rs. 4,000. He desires to prefer an appeal in which he can contest the determination of the Court of first instance and urge that he ought to have been allowed a decree for at least Rs. 6,000. It is unquestionable, that in such a case the value of the relief claimed by the plaintiff exceeds Rs. 5,000, and an appeal lies to this Court. It cannot be reasonably suggested, that the value of the suit for the purposes of appeal is the sum adjudged by the Court of first instance, when the very object of the appeal is to prove that the value as determined by that Court is erroneous. Indeed in such a case, if the plaintiff was compelled to appeal to the District Judge on the basis of the amount adjudged by the first Court, and if the appeal succeeded, the result would be singularly anomalous. The District Judge would be called upon to make a decree on the footing that the sum claimed by the plaintiff in excess of Rs. 5,000 was legitimately due to him. Let us take again another illustration. Suppose in this very case, it is the defendant who appeals. It can hardly be contended that the appeal would lie to the District Judge, although an appeal by the plaintiff against the same decree would obviously lie to this Court. The defendant cannot reasonably contend that as the plaintiff, although he claimed more than Rs. 5,000 has got a decree for a less amount, the value of the relief claimed by him must be taken at the latter figure. If the defendant was allowed to appeal to the District Judge on this assumption, and if subsequently the plaintiff preferred a cross-appeal in respect of the amount which has been disallowed, the position would be very anomalous; the District Judge would be called upon to adjudicate upon the entire claim in excess of Rs. 5,000 and to allow it, if he found it to be well founded. In such a case also, I take it, the appeal must lie to this Court. The statement, therefore, that the amount ascertained by the Court to be due to the plaintiff in suits in which the amount of claim is approximately stated in the plaint, is the value of the original suit for the purpose of determining the forum of appeal, is too broad and does require to be qualified. In fact, it seems to me that it is not so much the adjudication of the amount by the Court, as the acceptance of the adjudicated amount by the plaintiff as the value of the relief claimed by him, which determines the value of the suit, and consequently, the forum of appeal. The principle which is common to the two classes of oases which I have just illustrated Appears to be that in each instance, although the amount of the claim is initially stated only approximately by the plaintiff, ultimately it is the plaintiff who determines the value of the relief claimed by him, although in one instance, that is, where the Court allows him a larger amount than what is tentatively claimed, lie adopts the increased amount as the value of his claim, and in the other instance, that is, where the Court allows him a less amount, he still adheres to his claim in respect of the larger amount stated in the plaint and seeks to enforce the same. If this principle is kept in view, there is little or no difficulty in harmonising the cases on the subject to be found in the books.

15. In the case of Mohini Mohan Das v. Satis Chandra Roy (1890) I.L.R. 17 Calc. 704, a suit for possession of land and mesne profits was approximately valued at Rs. 4,000. In the execution proceedings, the mesne profits were assessed at a sum in excess of Rs. 6,000. The plaintiff paid additional court fees on the excess amount under Section 11 of the Court-Fees Act, and obtained a decree for the amount adjudged by the Court. The defendant appealed, and it was held that the appeal lay to the High Court This decision was manifestly correct. The plaintiff, when he accepted the decree for a sum in excess of Rs. 5,000, in substance, altered his claim to that amount, and the value of the suit, which had been approximately stated, became, by the reason of the adjudication of the Court and of the acceptance of that adjudication by the plaintiff, much in excess of Rs. 5,000. In such a case, the plaintiff could not very well contend that the value of the relief sought by him was under Rs. 5,000, though the value of the relief actually awarded to him was in excess of Rs. 5,000.

16. In the case of Nagendranath Mosumdar v. Russik Chandra Rai (1901) 6 C.W.N. 346 the plaintiff valued his suit for account at Rs. 2,000. He subsequently altered it to Rs. 9,000. His suit was dismissed on the merits. He appealed and valued his appeal at Rs. 4,500. The learned Judges of this Court held that the appeal lay to the District Judge, on the ground that the value of the original suit must be considered as that stated in the plaint, namely Rs. 2,000, which had not been amended. In my opinion, the conclusion was correct, although the reason assigned therefor might be open to criticism. It will be observed that the plaintiff got a decree for nothing. When, therefore, he preferred an appeal and valued' it at Rs. 4,500, he may in substance be taken to have reduced his claim to that amount; in other words, although the valuation put by the plaintiff had fluctuated from Rs. 2,000 to Rs. 9,000, yet he finally confined his claim to Rs. 4,500, and in this view of the matter, the appeal might be held to lie to the District Judge. I am not prepared to hold, however, that if the relief claimed in appeal had been valued in excess of Rs. 5,000, an appeal to the District Judge would have been competent merely on the ground that the plaintiff had originally valued the suit at Rs. 2,000.

17. In the case of Nilmony Singh v. Jagabandhu Roy (1896) I.L.R. 23 Calc. 536 the suit was valued at more than Rs. 5,000. The defendant objected that the suit was overvalued. The Court of first instance allowed this objection and determined that the value was less than Rs. 5,000. The plaintiff appealed on the ground that the value of the suit was in excess of Rs. 5,000. It was held by the learned Judges of this Court that the appeal lay to the High Court. It was pointed out that when the appellant questioned the correctness of the finding of the Court below as to valuation, he was not bound to accept that finding as correct, for the purpose of determining the forum of appeal. This conclusion seems to me to be unquestionably sound. As I have already explained, in a case of this description, the value adjudged cannot be accepted as the valuation of the suit for the determination of the forum of appeal, because the very object of the appeal is to challenge that determination.

18. In the case of Madhu Sudan Ray v. Prasanna Kumar Dutt (1901) Unreported (R.A. No. 32 of 1898 decided by Ghose and Pratt JJ. on the 18th January 1901), the suit was in respect of injunction valued at Rs. 800 and damages approximately stated at Rs. 1,200. The plaintiff subsequently claimed Rs. 2,400 as damages. It was held, and in my opinion correctly, that the appeal lay to this Court, inasmuch as the value of the suit was in substance more than Rs. 5,000.

19. Reference was made on behalf of the respondent to the decision of this Court in the case of Rameswar Mahton v. Didu Mahton (1894) I.L.R. 21 Calc. 550. In that case, the plaintiff sued for possession of land valued at Rs. 950 and for mesne profits. The suit was instituted in the Court of a Munsif whose pecuniary jurisdiction extended to Rs. 1,000 only. The mesne profits were estimated by the plaintiff in the course of the execution proceedings at about Rs. 1,600. The Courts below held that the Munsif had no jurisdiction to make a decree for the amount claimed. This decision was reversed on appeal by this Court. This case may be distinguished on the ground that the question related to the jurisdiction of the Court of first instance, and not the forum of appeal. It must be understood, however, that I do not assent to the proposition laid down in this case, and when the question directly arises in a similar case, the matter may require reconsideration.

20. Reliance was also placed on behalf of the respondent upon the decision of the Allahabad High Court in the case of Madho Das v. Ramji Patak (1894) I.L.R. 16 All. 286 in which there are observations which militate against the theory that the value of a suit is the value of the relief as adjudged by the Court of first instance. It was pointed out by the learned Judges that if this position is accepted and is logically worked out, the consequences may be very anomalous. To take one illustration. The plaintiff approximately values the relief sought at Rs. 4,000. He obtains a decree for Rs. 6,000 and pays Court fees upon the amount decreed in his favour in excess of the original claim. The defendant appeals to the High Court, and upon appeal it is found that the plaintiff is entitled to a decree for only Rs. 3,000. It is asked, upon what principle should the adjudication of the first Court be taken to determine the forum of appeal, and not the adjudication of the Court of final appeal? In fact, if the High Court entertains the appeal, and finds that the amount to which the plaintiff is entitled is less than Rs. 5,000, the High Court really has no jurisdiction and logically ought to return the memorandum for presentation to the proper Court. In my opinion, the illustration shows conclusively that the theory that the forum of appeal depends upon the value as adjudged by the Court does require qualification, and the qualification I have suggested seems to me completely to meet the situation. The forum of appeal depends not upon the value as adjudged, but upon the value as accepted by the plaintiff after adjudication. In the illustration given, as soon as the Court of first instance finds that the plaintiff is entitled to the sum of Rs. 6,000 and the plaintiff pays court-fees upon that amount, the minimum, at any rate, becomes fixed; the plaintiff in substance enhances his claim and makes the suit one for Rs. 6,000. It cannot be contested for a moment that if the plaintiff originally brought his suit for Rs. 6,000, whatever might be the amount awarded to him by the Court of first instance, the appeal would lie to the High Court, on the ground that the value of the suit was in excess of Rs. 5,000. It is ultimately, therefore, the valuation of the plaintiff which controls the jurisdiction, not only of the first Court but of the Appellate Court. When the plaintiff accepts the decree for the amount found and allowed by the first Court, the original valuation mad a in the plaint, which was admittedly approximate and tentative, is altered, and the valuation as determined by the first Court becomes the plaintiff's valuation.

21. Let us now take the circumstances of the case before us. Here the suit included a claim for recovery of possession of land which was valued at a definite sum. It also included a claim for mesne profits antecedent to the suit at the rate of Rs. 600 a year, and the amount was approximately stated to be about Rs 1,200 The suit further included a claim for mesne profits from the date of its institution to the date of the recovery of possession. No value, definite or indefinite, was assigned to this part of the claim. As regards the mesne profits antecedent to the suit, the plaint further stated that if, on enquiry, the Court found that the plaintiff was entitled to receive a larger amount than that claimed by him, he might be allowed the same upon payment of court fees on the excess amount. In the suit itself, there was an appeal to the District Judge and a second appeal to this Court In the execution proceedings when mesne profits were sought to be ascertained, there was similarly an appeal to the District Judge and subsequently an appeal to this Court. The mesne profits, however, have now been ascertained, and it has been found that the plaintiff is entitled to mesne profits to the extent of Rs. 3,583 for the period antecedent to the suit, and Rs. 284 interest thereon up to the date of suit. It has further been found that the mesne profits from the date of the institution of the suit up to the date of recovery of possession amounts to Rs. 7,358 which, together with the interest, comes to a considerable sum. In fact, the amount of mesne profits decreed to the plaintiff for the period antecedent to the suit as well as for the period pendente, lite together with the interest exceeds Rs. 22,000. The plaintiff was called upon to pay additional court-fees on the amount decried in excess. On the 30th of August 1905, the excess amount assessed by the Court was duly paid, with the result that the decree was signed and sealed on that date. The defendant has now appealed to this Court, and the objection taken is that the appeal is incompetent. It is contended that the appeal ought to have been preferred to the District Judge, because the value of the land together with mesne profits antecedent to the suit and interest thereon up to the date of institution falls short of Rs. 5,000. This contention appears to me to be manifestly untenable. I am aware of no decision which supports the argument of the respondent. The respondent seeks to ignore the amount of mesne profits allowed for the period between the date of the institution of the suit and the date of delivery of possession. The principle upon which he seeks to do so is that at the date when the action was commenced, these mesne profits had not accrued due, and it is only by reason of the provisions of Section 211 of the Civil Procedure Code, that the Court might make a decree for payment of such mesne profits in the suit. It has been further contended that excess court-fees were not leviable on mesne profits which have accrued pendente lite under Section 11 of the Court Fees Act, and in support of this view reliance has been placed upon the case of Ram Krishna Bhikaji v. Bhima Bai (1890) I.L.R. 15 Bom. 416. In my opinion, there is no substantial, distinction, for our present purpose, between mesne profits antecedent and subsequent to the institution of the suit, and I am not prepared to accept the decision of the learned Judges of the Bombay High Court to which reference has been made. A contrary view has been taken by this Court in the case of Dwarka Nath Biswas v. Debendra Nath Tagore (1906) I.L.R. 33 Calc. 1232 in which it has been ruled that where a plaintiff asked for past as well as future mesne profits and paid court-fees on the amount claimed for past mesne profits only, the provisions of Section 11 of the Court Fees Act were applicable in respect of the whole suit. this view seems to me to be clearly well founded on reason and principle. It cannot be doubted that the plaint in the present case includes a claim for possession of land, for mesne profits antecedent to the suit and for mesne profits which were to accrue between the date of the institution of the suit and delivery of possession. Each of these elements of the claim had a value. The first had a definite value which was stated in the plaint. The second was only approximately valued, but the plaintiff reserved a claim for any amount in excess of the approximate sum which might be determined by the Court. The third element, the plaintiff professed that he could not value at all, and he left it to be determined by the Court. Upon what principle, then, can it be contended that the value of the suit, which is the value of the relief claimed, is not the aggregate of the value of each of these three elements? The plaintiff has, as a matter of fact, paid the court-fees under Section 11 of the Court Fees Act in respect of the value of all the three elements. It is manifest, therefore, that under Section 8 of the Suits Valuation Act, the value of the suit upon which the court-fee has been assessed and paid without objection, is the value for the purpose of jurisdiction. In this view of the matter, the appeal obviously lies to this Court. That the aggregate value of all the three elements has to be taken into consideration is reasonably clear from the decision of a Full Bench of this Court in the case of Kishori Lal Roy v. Sharut Chunder Mozumdar (1882) I.L.R. 8 Calc. 598 which, though it does not deal directly with the matter now before us, throws considerable light upon the question raised, and supports the conclusion at which we have arrived. That the view now taken is, moreover, in agreement with what has been understood for many years past to be the established practice of the Courts is clear from the decision of this Court in the case of Mohini Mohan Das v. Satis Chandra Roy (1890) I.L.R. 1 Calc. 704. This is pre-eminently a case in which, as Sir Richard Garth observed in Kishori Lal Roy v. Sharut Chunder Mozumdar (1882) I.L.R. 8 Calc. 598 the maxim optima enim est legis interpret consuetudo should be applied. Where a statute uses language of doubtful import, and has been interpreted in a particular manner for a term of years, the interpretation given to that obscure meaning may reduce the uncertainty to a fixed rule: Broom's Maxims, 7th Edition, page 710.

22. The answer, therefore, which I should give to the question referred to us is as follows. In a suit for possession of land and mesne profits which was originally valued at a sum below Rs. 5,000 and was instituted in the Court of a Subordinate Judge, if the whole amount actually found due inclusive of mesne profits payable by the defendant to the plaintiff is over Rs. 5,000 and the plaintiff obtains a decree for more than Rs. 5,000 upon payment of additional court-fees under Section 11 of the Court Fees Act. an appeal against that decree lies to this Court. The answer necessarily leads to the conclusion that the appeal in the present case has been rightly preferred to this Court.


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