Rampini and Pratt, JJ.
1. The suit out of which this appeal arises was one brought for accounts from an agent and for the sum which, on account being taken, might be found to be due by the agent. The plaintiff valued his suit at Rs. 5,000, but he prayed that, if a larger amount might be found due to him, he might be given a decree for the amount so found due on his paying the deficit Court-fee duty.
2. The Subordinate Judge found the plaintiff entitled to a sum of Rs. 5,756-13-6.
3. The defendant has now appealed. A preliminary objection has been taken to the hearing of this appeal on ground that, as the plaintiff valued his suit at Rs. 5,000, the appeal lies to the District Judge and not to this Court, as under Section 21 of Act XII of. 1887, it is 'the value of the original suit' that determines the forum of appeal. The cases of Mohini Mohan Das v. Satis Chandra Roy (1890) I.L.R. 17 Calc. 704, Rameswar Mahton v. Dilu Mahton (1894) I.L.R. 21 Calc. 550, Nilmony Singh v. Jagabandhu Roy (1896) I.L.R. 23 Calc. 536, Nagendra Nath Mozumdar v. Russik Chandra Rai (1901) 6 C.W.N. 346, and Modhu Sudan Roy v. Prosanna Kumar Dutt Unreported A.O.D., 38 of 1901, have been cited to us.
4. In the first of these cases, the suit was one for possession and mesne profits. The suit was valued at Rs. 4,000, mesne profits were assessed at Rs. 6,188 and the appeal was held to lie to this Court. It was laid down in that case that, where in such a suit 'no amount is fixed by the plaintiff approximately or nominally upon mesne profits, it is an unknown quantity and the value of the suit, so far as the appeal from the preliminary decree of possession is concerned, is the value of the property alone, which would determine the forum of appeal. When the amount of mense profits has been ascertained, the value of the original suit is the value of the property sued for, plus the mesne profits, and the appeal would lie accordingly.'
5. The case of Rameswar Mahton v. Dilu Mahton (1894) I.L.R. 21 Calc. 550 is not in point. The question decided there was a question not as to the forum of appeal, but as regards the jurisdiction of the original Court.
6. In Nilmony Singh v. Jagabandhu Roy (1896) I.L.R. 23 Calc. 536, the plaintiff valued his suit at over Rs. 5,000, and the defendant objected that the suit was overvalued. The Court of First Instance found this issue in favour of the defendant and held that the value of the suit was less than Rs. 5,000. The plaintiff appealed, and contested the finding. He valued his appeal at Rs. 7,500. The defendant urged that the appeal did not lie to the High Court, but it was decided that the words value of the original suit' did not mean the value as found by the original Court, and that the appeal was. rightly preferred to the High Court.
7. In Nagendra Nath Mozumdar v. Russik Chandra Rai (1901) 6 C.W.N. 346, the plaintiff sued for an account and valued his suit at Rs. 2,000. He afterwards intimated that he desired to alter the amount of his claim, and fixed it at Rs. 9,000. His suit was dismissed and he appealed, valuing his appeal at Rs. 4,500. In this case it was held that 'the value must be considered as that stated in the plaint (Rs. 2,000)' and that the appeal lay to the District Judge. In the case of Modhu Sudan Roy v. Prosanna Kumar Dutt Unreported the suit was one for an injunction and damages. The suit was valued in respect of the injunction at Rs. 800 and at Rs. 1,200 'for the present' on account of damages. The plaintiff subsequently claimed Rs. 24,000 as damages. The Subordinate Judge, however, gave the plaintiff a decree for Rs. 1,200 damages. The plaintiff then appealed to this Court, and the defendant to the District Judge. It was held by the Court, that the suit was really one for more than Rs. 5,000 and the plaintiff's appeal was properly preferred to this Court, and the defendant was permitted to withdraw his appeal from the Court of the District Judge and to present it to this Court.
8. These decisions at first sight seem to be somewhat conflicting; but we consider that the rule to be deduced from them is 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.
9. The only case apparently in conflict with this rule is that of Nagendra Nath Mozumdar v. Russik Chandra Rai (1901) 6 C.W.N. 346, but the facts of that case are peculiar. The plaintiff in that case first valued his suit at Rs. 2,000. He then expressed his indention of altering it to Rs. 9,000; but he did not amend his plaint and when his suit was dismissed, he valued his appeal at Rs. 4,500. It was accordingly held that the appeal lay to the District Judge. In this case it may, we think, be fairly said that the plaintiff did not definitely fix the amount of his claim at Rs. 9,000. He first fixed it at Rs. 2,000, then expressed a wish to alter it to Rs. 9,000 and finally reduced it to Rs. 4,500. In these circumstances, it was apparent that the real value of the suit was under and not over Rs. 5,000.
10. In the present suit the plaintiff never definitely fixed amount of his claim at Rs. 5,000. He did so only tentatively and from the first expressed an intention of claiming whatever sum might, on accounts being taken, be found due to him. Thissum has been determined to be Rs. 5,756. Hence we consider this amount must be regarded as the value of the original suit and that the appeal has been rightly preferred to this Court.
11. We accordingly proceed to hear the appeal.