1. This application involves the determination of an important question of practice.
2. It is an application by the defendant, which by consent of the parties, has been treated as an application under Order XLVII to review an order awarding the plaintiff costs.
3. The plaintiff brought a suit in the High Court claiming damages for trespass to his land by reason of the unauthorised deposit thereon of building material by the defendant. The plaintiff in his plaint claimed Rs. 5,300 as damages, and obtained a decree for Rs. 10, and costs were awarded to him on the High Court Scale No. 2.
4. The defendant now applies for a review of the above order relating to costs, on the ground that the suit was cognisable by the Court of Small Causes at Calcutta, and, inasmuch as the plaintiff obtained a decree for damages for trespass of an amount less than Rs. 300, the Court had no jurisdiction to award him any costs by reason of the provisions of Section 22 of the Presidency Small Cause Courts Act of 1882. The plaintiff applied under this section for a certificate that the suit was one fit to be brought in the High Court, but this was refused.
5. I have, therefore, to decide whether the suit was cognisable by the Small Cause Court or not. A suit, in my opinion, is cognisable by the Small Cause Court if in respect both of its Character and of the amount or value of its subject matter it is within the jurisdiction of the Court. This suit in respect of the character of the relief claimed, was clearly one which the Small Cause Court was entitled to entertain. See Peary Mohun Ghosaul v. Harran Chunder Gangooly (1885) I.L.R. 11 Calc. 261.
6. Was it also within the ambit of the jurisdiction of the Small Cause Court by reason of the amount or value of its subject matter? That depends upon whether the amount or value is that actually recoverable or ascertained at the trial, or that claimed by the plaintiff, and set out in the plaint.
7. The law and practice in British India, contained partly in legislative enactments, and partly in a long and continuous stream of judicial decisions, are, in my opinion, in favour of the latter view.
8. Learned Counsel for the defendant urged that if this view is to prevail, the effect will be that if the plaintiff elects to value his claim at Rs. 1,200 the suit will come within Section 22, while if he inflates his claim to Rs. 12,000 the section will not be applicable. In favour of his contention he has cited an unreported judgment of my brother, Buckland, in suit No. 1657 of 1922. With great respect to that learned Judge, I find myself unable to agree in the opinion which he expressed in that case as to the construction of Section 22. If the test of the amount or value of the subject matter of the suit be that for which the defendant contends, one result would appear to be that in a suit, for example, in respect of negligence or trespass, in which the damages are at large, and it is impossible & priori to estimate, even approximately, the amount of the damages which ultimately will be awarded, a plaintiff, however bona fide may be his estimate of the damage he has suffered, would be unable to bring his suit in the High Court without running the risk of losing his costs even if he were to be successful. In my opinion, the object of the Legislature was to prevent congestion in the High Court, and to provide, where the plaintiff values his claim at a sum which brings his suit within the jurisdiction both of the High Court and of the Small Cause Court, and yet elects to institute proceedings in the High Court, that he should do so at his peril. It is not to be supposed that the Legislature intended ex post facto to penalise a plaintiff because he had failed to guess correctly which was the proper Court in which to launch his suit. If the construction urged upon me by the defendant were the correct one, it would result in a mere gamble, and add a new terror to litigation.
9. Chief Justice Edge makes same pertinent observations on this subject in Madho Das v. Ramji Patak (1894) I.L.R. 16 All. 286, 288. There the learned Chief Justice says:
10. Now it has been held by this Court in Mahabir Singh v. Behari Lal (1891) I.L.R. 13 All. 320, that for the purpose of determining the proper Appellate Court in a civil suit, what is to be looked to is the value of the original suit, that is to say, the amount or value of the subject matter of the suit. Such amount or value of the subject matter of the suit must be taken to be the value assigned by the plaintiff in his plaint and not the value as found by the Court, unless it appears that, either purposely or through gross negligence the true value of the suit has been altogether misrepresented in the plaint. As a matter of fact in this case the value assigned by the plaintiff in his plaint was Rs. 1,500. That valuation made the suit one which was triable in the Court of the Subordinate Judge, and that valuation also made the appeal from the decree of the Subordinate Judge lie to the Court of the District Judge. The law com templates, that in many cases, it may be impossible for a plaintiff, at the inception of his suit, to state correctly the value of the relief which he seeks, as, for example, in cases to which Section 11 of the Court Fees Act, 1870 (VII of 1870) applies. This was particularly a case in which, until all the evidence had been taken, it was impossible for the plaintiff to put anything more than a hypothetical value on the relief claimed qua the balance in the hands of Babu Madho Das. In our opinion it would be impossible to hold that the jurisdiction of an Appellate Court should depend upon the amount of the decree of the Appellate Court. Take for example this case. The lower Appellate Court here being satisfied that the plaintiff under his second relief was entitled to a decree for over Rs. 7,000, gave him that decree. If the lower Appellate Court had not jurisdiction to give that decree, what would have been the result? According to the argument for the defendant-appellant the lower Appellate Court could have done nothing except return the memorandum of appeal for presentation in the High Court. It could not, according to that contention logically worked out, have given the plaintiff in his appeal a decree for any sum whatever, even a sum less than Rs. 5,000 as, if that contention was correct, its jurisdiction was determined by the finding that the plaintiff was entitled in appeal to a sum exceeding Rs. 5,000. If that contention were correct and the lower Appellate Court returned the memorandum of appeal, and it was presented in this Court as a first appeal, it is conceivable that this Court might have come to the conclusion that the plaintiff was entitled, we shall say, to Rs. 2,000 only. Now, if the defen dant's contention were correct, in that event what could this Court do except again return the memo randum of appeal to be presented in the Court having jurisdiction, i.e., that of the District Judge. That is an illustration which we think goes to show that it is the plaintiff's valuation in his plaint which controls the jurisdiction, not only of the first Court but of the Appellate Court, and not the amount which may be found and decreed by the first Court or by the Appellate Court.'
11. It has repeatedly been held by the High Courts in India that the test of the amount or value of the subject matter of a suit is to be determined by the amount set forth in the plaint: Sec Lakshman Bhatkar v. Babaji Bhatkar (1883) I.L.R. 8 Bom. 31, Mahabir Singh v. Behari Lal (1891) I.L.R. 13 All. 320, Hamidunnissa v. Gopal Chandra Malakar (1897) I.L.R. 24 Calc. 661, Raj Krishna Dey v. Bepin Behari Dey (1912) I.L.R. 40 Calc. 245. And a perusal of the material statutes leads me to the same conclusion. By the Suits Valuation Act of 1887, Section 8: 'The value as determinable for the computation of the Court-fees and the value for the purpose of jurisdiction shall be the same.'
12. By the Court Fees Act of 1870, Section 4, Court-fees are payable as indicated by the Schedule to that Act. By the Bengal Fees Amendment Act of 1922, Section 5, Court-fees are payable according to the amount or value appearing in the plaint. [See also on this subject Court Fees Act of 1870, Sections 5 and 7, Sub-sections (1) and (4), and Section 17 of the Presidency Small Cause. Courts Act, Section 18, explanation I, and also Sections 20, 21 and 39(2), (2) and (4), see also Order VII, Rules 1, 2 & 11(6).]
13. In Clause 12 of the Letters Patent, 1865, it is provided 'that the High Court shall not have such original jurisdiction in a case falling within the jurisdiction of the Small Cause Court at Calcutta in which the debt, or damage or value of the property sued for, does not exceed Rs. 100.' It is to be observed that the words are 'sued for', and not 'recoverable'.
14. In my opinion, on a true construction of Section 22 of the Presidency Small Cause Courts Act, where a plaintiff institutes a suit of a character cognisable by the Small Cause Court in the High Court, and estimates the value or amount of his claim in the plaint at a sum which is within the ambit of the jurisdiction of the Small Cause Court, Section 22 is applicable to the suit, and the plaintiff must be taken to have deliberately accepted the risk to which the provisions of the section expose him. On the other hand the plaintiff's estimate of the value or amount of his suit may be so high that the suit is not cognisable by the Small Cause Court, but it is erroneous for that reason to suppose that the plaintiff is entitled, by a designed exaggeration of the claim, to oust the jurisdiction of the Small Cause Court. The plaintiff by placing a fictitious value on his claim is not at liberty to determine the tribunal by which his suit is to be tried. [See cases ci ted supra, also Dayaram v. Gordhandas (1906) I.L.R. 31 Bom. 73, Ashiq Ali v. Imtiaz Begam (1917) I.L.R. 39 All. 723].
15. Ample safeguards are provided to meet such a contingency. Where the relief claimed in the plaint is incorrectly valued, the Court may reject the plaint, or return the plaint to be presented to the proper Court under Order VII, Rules 10 and 11. The Court of first instance, in a proper case where it deems such a preliminary investigation to be desirable, will itself determine the amount and value of the subject matter of the suit, if objection is taken in the Court of first instance at or before the hearing at which issues are first framed and recorded. [See Suits Valuation Act, Section 11, and Koli Pujari v. Manjaya (1897) I.L.R. 21 Mad. 271.]
16. Moreover, the High Court under Section 35 of the Civil Procedure Code possesses an unfettered discretion in deciding all questions of costs in such a suit. It might, for example, under such circumstances, deprive the plaintiff wholly of costs, or only award him such costs as he would have recovered if he had brought his suit in the Small Cause Court.
17. Courts of Justice, in construing a statute, must endeavour to discover the meaning to be given to it by a consideration of its terms. Little, or no, assistance is to be obtained by referring to other statutes in which the words used are not the same.
18. The provisions of the English County Court Acts from 1867 to 1919 do not contain the safeguards which are to be found in the Indian practice. Moreover, the provisions of these Acts differ materially from those contained in the statutes relevant to the issues raised on this application, and the decisions thereunder proceed upon different considerations. I do not, therefore, propose to refer to them.
19. In my opinion, questions of practice in India are to be determined in accordance with the principles laid down by the Courts in India.
20. Bearing in mind the evidence adduced at the hearing of this suit, and having regard to all the circumstances, I am not disposed to vary the decree which has been passed.
21. I hold that this application has been misconceived, and I dismiss it with costs.