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Sris Chandra Nandy of Kasimbazar Represented by Manager Vs. Joyramdanga Coal Concern Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal40
AppellantSris Chandra Nandy of Kasimbazar Represented by Manager
RespondentJoyramdanga Coal Concern Ltd.
Cases ReferredLalessor Babui v. Janki Bibi
Excerpt:
- .....appeal filed by the plaintiff in a suit for khas possession of a colliery, arrears of royalty and mesne profits against the decree of the lower court dismissing his claim for khas possession and mesne profits but decreeing his claim for arrears of royalty in part. plaintiff valued in the plaint the claim for arrears of royalty at rs. 3654-14-0, the claim for khas possession at rs. 5310-6-0 and the claim for mesne profits at rs. 4646-10-0. in the memorandum of appeal to this court, his valuation of the claims for khas possession and mesne profits for purposes of court-fees is the same in the plaint. so far as the claim for arrears of royalty is concerned, he has valued it at the difference between the amount claimed in the plaint and the amount decreed in his favour by the trial judge......
Judgment:
ORDER

Nasim Ali, J.

1. This is a reference by the taxing officer under Section 5, Court-fees Act, for determination of the amount of court-fees payable on the memorandum of an appeal filed by the plaintiff in a suit for khas possession of a colliery, arrears of royalty and mesne profits against the decree of the lower Court dismissing his claim for khas possession and mesne profits but decreeing his claim for arrears of royalty in part. Plaintiff valued in the plaint the claim for arrears of royalty at Rs. 3654-14-0, the claim for khas possession at Rs. 5310-6-0 and the claim for mesne profits at Rs. 4646-10-0. In the memorandum of appeal to this Court, his valuation of the claims for khas possession and mesne profits for purposes of court-fees is the same in the plaint. So far as the claim for arrears of royalty is concerned, he has valued it at the difference between the amount claimed in the plaint and the amount decreed in his favour by the trial Judge. The point for determination in this reference is whether the suit out of which this appeal arises is a multifarious suit within the meaning of Section 17, Court-fees Act. Section 17, Court-fees Act (Act 7 of 1870) is in these terms:

Where a suit embraces two or more distinct subjects the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeals in suits embracing separately each of such subjects would be liable under this Act.

2. In Kishori Lal v. Sharut Chunder ('82) 8 Cal 593 it was held by this Court that a claim for possession and mesne profits was one subject and not two distinct subjects within the meaning of this section. In 1935 the following section was substituted in Bengal for the above section by the Bengal Amendment Act, 7 of 1935.

(1) In any suit in which two or more separate and distinct causes of action are joined and separate and distinct reliefs are sought in respect of each, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees with which the plaints or memoranda of appeal would be chargeable under this Act in separate suits instituted in respect of each such cause of action:

Provided that nothing in this Sub-section shall be deemed to affect any power conferred by or under the Code of Civil Procedure, 1908, to order separate trials.(2) Where more reliefs than one based on the same cause of action are sought either jointly or in the alternative, the fee shall be paid according to the value of the relief in respect of which the largest fee is payable.

3. It cannot be disputed that the cause of action in respect of the claim for arrears of royalty is separate and distinct from the cause of action for khas possession and mesne profits. On the authority of the decision in Kishori Lal v. Sharut Chunder ('82) 8 Cal 593, it was contended on behalf of the plaintiff-appellant that the claims for possession and mesne profits were not separate and distinct causes of action within the meaning of Section 17, Court-fees Act, as amended in Bengal. In view of the material change in the wordings of the section, I am unable to accept this contention. The words in the new section are 'separate and distinct causes of action' and not 'distinct subjects.' In the old section a suit embracing two or more distinct subjects was a multifarious suit. Under the present section, however, a suit in which two or more separate and distinct causes of action are joined is a multifarious suit. The word 'cause of action' has not been defined in the Court-fees Act. Apparently, it has been used in the same sense as in the Code of Civil Procedure. Order 2, Rule 2, Civil P.C., lays down that a person entitled to more than one relief in respect of same cause of action must sue for all or any of such reliefs and that if he omits except with the leave of the Court to sue for all such reliefs he shall not afterwards sue for such relief so omitted. Order, 2 Rule 4, Civil P.C., lays down that no cause of action shall, unless with the leave of the Court, be joined with a suit for recovery of immovable property except claims for mesne profits in respect of the property claimed or any part thereof. These provisions clearly indicate that a claim for mesne profits would not be barred under Order 2, Rule 2, Civil P.C., if such a claim was not included in a previous suit for possession and that the claims for possession and mesne profits are not based on the same cause of action : Lalessor Babui v. Janki Bibi ('92) 19 Cal 615. I am, therefore, of opinion that the three reliefs claimed in the memorandum of appeal are based on three separate and distinct causes of action and that the memorandum of appeal is chargeable with the aggregate amount of fees with which the memorandum of appeal would be chargeable under the Court-fees Act in separate suits in respect of each such cause of action.


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