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Kali Kamal Maitra Vs. Fazlur Rahman Khan Chowdhry - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.778
AppellantKali Kamal Maitra
RespondentFazlur Rahman Khan Chowdhry
Cases ReferredSri Bullav Bhattacharji v. Babu Ram Chattopadya
Excerpt:
civil procedure code (act xiv of 1882), section 586 - suit for mesne profits--valuation of claim by plaintiff--no leave asked to increase valuation--no offer to pay additional court-fee--value of suit, what to be taken as--court fees act (vii of 1870), sections 7, 11--suits valuation act (vii of 1837) section 8--civil courts act (xii of 1887), section 21. - 1. this is an appeal on behalf of the plaintiffs in a suit for recovery of mesne profits, the plaintiffs valued their claim at rs. 300 for the purposes of ascertainment of the jurisdiction of the court and the amount of court-fees payable; they also stated that if the amount of mesne profits was found to be greater than rs. 300, they might be awarded a decree for the excess amount upon payment of additional court-fees. the court of first instance made a decree for rs. 223 in favour of the plaintiffs. upon appeal this decree has been affirmed by the subordinate judge. the plaintiffs have now appealed to this court.2. on behalf of the respondents a preliminary objection has been taken to the hearing of the appeal on the ground that it is incompetent under the provisions of section 586 of.....
Judgment:

1. This is an appeal on behalf of the plaintiffs in a suit for recovery of mesne profits, The plaintiffs valued their claim at Rs. 300 for the purposes of ascertainment of the jurisdiction of the Court and the amount of Court-fees payable; they also stated that if the amount of mesne profits was found to be greater than Rs. 300, they might be awarded a decree for the excess amount upon payment of additional Court-fees. The Court of first instance made a decree for Rs. 223 in favour of the plaintiffs. Upon appeal this decree has been affirmed by the Subordinate Judge. The plaintiffs have now appealed to this Court.

2. On behalf of the respondents a preliminary objection has been taken to the hearing of the appeal on the ground that it is incompetent under the provisions of Section 586 of the Civil Procedure Code of 1882. That section provides that no second appeal shall lie in any suit of the nature cognizable in a Court of Small Causes when the amount or value of the subject-matter of the original suit does not exceed Rs. 500. It has not been disputed before us, and in view of the decision of the Full Bench of this Court in the case of Kunjo Behary Singh v. Madhab Chandra Ghose 23 C. 884, it cannot be seriously disputed, that the nature of the suit is such as to make it cognizable in a Court of Small Causes. The sole question in controversy is, whether the amount or value of the subject-matter of the original suit does or does not exceed Rs. 500. The respondents contend that the value of the subject-matter of the original suit is less than Rs. 500 and they rely upon the statement in the plaint that for the purpose of ascertainment of the jurisdiction of the Court, the claim is valued at Rs. 300. In answer to this argument, it has been suggested by the learned Vakil for the appellants that as they valued their appeal to the Subordinate Judge at Rs. 357, the value of the subject-matter of the suit must be taken to be Rs. 580. The circumstances, under which the appeal of the plaintiffs to the Subordinate Judge came to be valued at Rs. 357, although the suit was valued at Rs. 309 and a decree for Rs. 223 was made in their favour by the Court of first instance, are of a somewhat exceptional character. It appears that in the original Court, a Com-missioner was appointed to ascertain the rates at which rent was payable in respect of the different classes of land. He submitted a'' report in which he stated that the plaintiffs were entitled to claim mesne-profits upon rental basis at certain rates. It is conceded that if the decree were made in favour of the plaintiffs on the basis of the report of the Commissioner, they would not have been entitled to more than Rs. 400. The Commissioner, however, stated in his report that the plaintiffs had put forward a claim before him to mesne-profits at a higher rate of rent, and we have been informed by the learned Vakil for the appellants that if the mesne-profits were assessed at this higher rate, the plaintiffs would have been entitled to a decree for Rs. 580. When the report of the Commissioner was submitted to the Court, the plaintiffs preferred objections there to, but they made no application for the amendment of the plaint. They did not ask for leave to increase the valuation of their claim nor did they offer to pay any additional Court-fees in respect of any excess amount.

3. The learned Vakil for the appellants has seriously suggested that the value of a suit does not depend upon the amount stated by the plaintiffs, but it depends upon the state of his mind. This argument is based upon an obvious fallacy.

4. Courts of justice take no notice of the un-manifested intention of the litigant parties. If the plaintiffs desired to increase the valuation of their suit, the obvious course for them to adopt was to ask for leave to amend the plaint. This they did not do. It has been suggested, however, that they might have waited till the decree was made in their favour, because Section 11 of the Court fees Act lays down a procedure in suits for account and mesne-profits for payment of additional Court-fees. In our opinion, the section upon which reliance has been placed, has no possible application to the circumstances of the present case. That section provides--we quote only so much of it as has any bearing upon the case before us--that in a suit for mesne-profits, if the profits or amount decreed are in excess of the profits claimed, the decree shall not be executed until the difference, between the fee actually paid and the fee which would have been suit comprised the whole amounts so decreed shall the proper officer. The contingency contemplated by this section never happened. This section merely provides that if the plaintiff is awarded a decree for mesne profits for a larger amount than what is claimed by him in his plaint, he is not at liberty to execute such decree till he has paid the additional Court-fees. The question with which we are now concerned is, what is the value of the suit for the purpose of determination of the forum of appeal.

5. As we have already explained, the plaintiffs expressly stated that three hundred rupees was to be taken as the value of the suit for the purpose of the jurisdiction of the Court. Let us now turn for a moment to Section 7 of the Court Fees Act. That section provides that in suits for money, (including suits for damages and other compensation, that is, including suits of the description now before us), the amount of fee payable under the Act shall be computed according to the amount claimed. If, next, we turn to Section 8 of the Suits Valuation Act, we find it provided that in suits other than certain excepted classes of suits which do not comprise suits for mesne-profits, the value of the suits as determinable for the computation of Court-fee and the value for the purpose of jurisdiction, shall be the same. Now in the case before us, the plaintiffs paid Court-fees upon Rs. 300. Consequently the value of the suit not only for the payment of Court-fee but also for the purpose of jurisdiction must be taken at Rs. 300. But it has been suggested by the learned Vakil for the appellant that this view is contrary to the decision of the Full Bench of this Court in the case of Ijatulla Bhuyan v. Chandra Mohan Banerjee 34 C. 954 : 6 Ch. J. 255 : II. C.W.N. 1133 F.B. Reliance has been placed particularly upon the passage in which it is stated that when a plaintiff was permitted by Section 50 of the Civil Procedure Code to put upon the relief claimed by him an approximate or tentative value, and the Court determined the amount which the plaintiff was entitled to recover, such amount, if accepted by the plaintiff as the value of the relief claimed by him, determines the value of the suit, and consequently the forum of appeal under Section 21 of Act XII of 1887. It is obvious, however, that this principle is of no assistance to the appellants. The two cases which were then contemplated by the Court were put in the alternative in this way. In both class of cases, 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 he has claimed, he adopts the increased amount as the value of his claim, and in the other instance, that is, where the Court allows him a lesser amount, he still adheres to his claim in respect of the larger amount stated in the plaint and seeks to enforce the same. The contingency which has happened in the present case does not fall within either of the two classes just mentioned. Here the plaintiffs valued the suit at Rs. 300. The original Court as well as the Court of appeal below made a decree for a smaller amount. The plaintiffs do not contend now that they are entitled only to Rs. 300 as claimed by them in their plaint. But on the contrary they contend that they are entitled to a much larger amount. Such a claim was not put forward in the Court of first instance, and the mere circumstance that the plaintiffs chose to value their appeal at Rs. 357 does not show that the value of the subject-matter of the suit was altered from Rs. 300 to Rs. 580. Such an alteration could not be made without a proper application to the Court in that behalf; and even if such an application were made, it could not be granted unless the plaintiffs paid the additional Court-fee. Consequently the value of the subject-matter of the original suit must be taken to be Rs. 300 and the present appeal held incompetent. The view we take as to the meaning of Section 586 of the Civil Procedure Code of 1882 is supported by the case of Sri Bullav Bhattacharji v. Babu Ram Chattopadya 11 C. 169.

6. The learned Vakil for the appellant has fully appreciated the difficulty of his position and he has anticipated the preliminary objection of the respondents by the presentation of an application for revision of the order of the Court below, with which we shall separately deal. But he has made a desperate effort to induce us to hold that Section 586 is no bar to the maintenance of this appeal because the plaintiffs imagined, without any notice to their opponent and to the Court, .that their 'claim in the suit was for more than Its. 500. The position, in our opinion, is absolutely untenable. The preliminary objection, therefore, prevails and this appeal is dismissed with costs.


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