C.B. Capoor, J.C
1. This is a defendant's appeal and is directed against a judgment and decree of the Subordinate Judge, Theog.
2. Briefly stated the respondents' case was that on 26th Kartik 2012 a sum of Rs. 627/10/-was found due against the appellant on account of articles purchased by him, that on 16-1-1956 the appellant through his servant sent a lame mule to the respondent with the message that the mule should be appropriated by him in full satisfaction of his dues. The latter replied that the mule was not worth more than about Rs. 300/- and that the appellant should come and settle the price of the mule. No settlement could be arrived at between the parties regarding the value of the mule. The respondent through a man of his sent the mule to the appellant who refused to accept the same.
The respondent thereupon, filed the suit to recover Rs. 627/10/- as price of the articles purchased by the appellant, Rs. 20/1/- as interest thereon, Rs. 150/- as the expenses incurred on the feeding of the mule prior to the'institution of the suit at the rate of Rs. 5/- per day, the sum that may be found to be due on account of the expenses on the mule for the subsequent period till the realisation of the amount or the fixation of the price of the mule. The respondent paid a court-fee of Rs. 90/- on the relief to recover a sum of Rs. 767/1/- and undertook to pay the requisite court-fee on the sum to which he may be found entitled for maintaining the mule.
The learned Subordinate Judge passed a decree for a sum of Rs. 4676/- on account of the feeding of the mule and as required by him the respondent paid additional court-fee on the aforesaid amount. As the respondent had already paid court-fee on a sum of Rs. 150/- on account of feed-Ing charges for the period prior to the institutionof the suit he should have been required to pay further court-fee on the sum of Rs. 4526/- only.
3. A preliminary objection has been raised on behalf of the respondent that the present appeal lay in the Court of the District Judge and not ia this Court, as the value of the subject-matter of the suit was less than Rs. 5000/-.
4. The relevant portion of paragraph 31 of the Himachal Pradesh (Courts) Order, 1948 runs as below:
'Save as otherwise provided by any law for the time being in force, appeals From decrees of Courts exercising original jurisdiction shall lie as follows :
(a) from a decree of a Subordinate Judge in a suit of value not exceeding five thousand rupees, to the Court of the District Judge; and
(b) in all other cases, to the Court of the Judicial Commissioner.'
5. Value in relation to a suit means the: amount of value of the subject-matter of the suit, vide para 2(7).
6. The question, therefore, that arises for decision is as to what was the amount or value of the subject-matter of the suit. According to the respondent the value of the subject-matter of the suit was Rs. 797/1/- whereas according to the appellant such value was Rs. 5323.6 NP.
7. There is divergence of judicial opinion on the question as to what is the value of the subject-matter in suits for accounts or mesne profits.
8. The Madras High. Court has consistently held that the value given in the plaint should be the value of the subject-matter of the suit, vide P. Kannayya Chetti v. R. Venkata Narasyya, ILR 40 Mad 1 : (AIR 1918 Mad 998 (2)) (FB); M. Sampathirayudu v. S. Venkataratnam, AIR 1940 Mad 878. The Mysore and Jamrmi and Kashmir High Courts have followed the Madras view, vide, Abdul Razack Saheb v. Abdul Jaleel Saheb, AIR 1954 Mys 62 and Abad Mir v. Mahda Bhat, AIR 1960 J. and K. 89.
9. In the last mentioned case, it was held that there was nothing in the Court-fees Act to indicate that the amount at which the plaintiff valued his relief in an account suit was only a tentative value. On the other hand a true construction of Section 7 (4) (f) appeared to be that the amount at which the relief sought by the plaintiff is valued in the plaint in an account suit, is the only valuation of that suit for purposes of court-fees and according to Section 8 of the Suits Valuation Act that is the only value for purposes of jurisdiction.
The true effect and purport of Section 8 referred to above is to fix the same value for purposes of jurisdiction in respect of the suit as well as the appeal. It did not, therefore, avail the appellant to say that as he had to pay court-fees in the appeal on the amount of the final decree that amount must decide the value of the appeal for purposes of jurisdiction also. The correct position was that the jurisdictional value of the suit would be the jurisdictional value of the appeal as well. The forum of appeal had to be determined on the basis of the jurisdictional value stated in the plaint and in accordance with the provisions of the Civil Courts Act.
10. The view generally entertained in the Calcutta High Court is that in such suits where the Court is at liberty to award a larger sum than what is fixed in the plaint as the approximate amount to which a plaintiff is entitled, the amount determined by the first Court as the amount due to the plaintiff should be taken as the value of the subject-matter of .the suit, vide Mohini Mohan Dass v. Satish Chandra, ILR 17 Cal 704; Gulab Khan v. Abdul Wahab Khan, ILR 31 Cal 365, Ijjatulla Bhuyan v. Chander Mohan, ILR 34 Cal 954 (FB).
In the last mentioned case Mookerjee, J. formulated a somewhat different view namely that the amount determined by the first Court and accepted by the plaintiff would be the value of the suit. To make the valuation of the suit dependant on the acceptance or otherwise by the plaintiff of the amount determined by the trial Court is beset with practical difficulties which have been noticed in the Full Bench ruling of the Madras High Court reported in ILR 40 Mad 1 : (AIR 1918 Mad 998 (2)).
11. The Allahabad High Court except in the case of Goswami Shri Raman Lalji v. Bohra Desraj, ILR 32 All 222, has fallen in line with the view of the Madras High Court, vide Madho Dass v. Ramji Pathak, ILR 16 All 286; Sudarshan Dass v. Ram Parshad, ILR 33 Allahabad, 97 and Abdul Majid v. Allah Bux, AIR 1925 All 376.
12. In the case of ILR 32 All 222, the High Court of Allahabad had followed the opinion of Mookerjee, J. in the ILR 34 Cal 954, case referred to above. The view was criticised by the Madras High Court in ILR 40 Mad 1 : (AIR 1918 Mad 998 (2)) (FB) supra.
13. Adverting to the Punjab cases one finds that it was held by the majority of the Judges constituting the Full Bench in the case of Kalu Ram v. Hanwant Ram, AIR 1934 Lah 488, that in suits for recovery of money on unsettled accounts the value of the subject-matter of the original suit is the value as given in the plaint unless it is enhanced by an adjudication of the Court that a higher sum is due in which case it is this latter sum which becomes the value on which court-fee is computed and which, therefore, is also the proper value for purposes, of jurisdiction.
But there is no variation of the value as originally fixed in the plaint if the amount found due is less than that claimed or if the suit is dismissed, the plaintiff being held entitled to nothing. In the last mentioned classes of cases the value as originally fixed continues to be the value for computation of court-fee and consequently is also the value for purposes of jurisdiction and is the value of the subject-matter of the original suit for determining the course of appeal.
14. The aforesaid is an anomalous view inasmuch as if the decree is passed for a sum in excess of that stated by the plaintiff, the sum decreed is to be the value of the subject-matter of the suit but if the decree passed is for a lesser sum the value stated in the plaint would be the value ofthe subject-matter of the suit for the purposes of appeal also.
15. Tek Chand, J. who delivered the majority judgment conceded that the Madras view had the merit of being simple. He, however thought that it would lead to the startling result that a litigant will be able to choose his own Court for the trial of the suit as well as for hearing the appeal and deprive the opposite party of the right of having the findings of fact? examined by the highest tribunal in the land in litigation involving an amount of money far in excess of the pecuniary jurisdiction of the deciding Judge.
The authorities are unanimous that in a suit for accounts the trial Court is competent to pass a decree even for an amount in excess of its pecuniary jurisdiction and if a decree can be passed by a trial Court in excess of its pecuniary jurisdiction there does not appear to be any impropriety if an appeal against the decree is heard by a District Judge, if the valuation of the suit does not exceed Rs. 5000/-. Aga Haider, J. who was also one of the members of the Full Bench struck a dissentient note in, if I may say so with respect, a closely reasoned judgment.
16. In a recent pre-emption case Mr. Justice Bishan Narain of the Punjab High Court observed that the jurisdictional value of a suit does not change with the form of the decree and the forum of appeal is to be determined by the value of the suit and not by the value of the decree. Vide Mohinder Singh Harnam Singh v. Jagjit Singh, AIR 1960 Punj 434. It is true that the aforesaid case was not one for accounts or for mesne profits but the principle underlying that decision may well apply to a suit for accounts or mesne profits also.
17. There is thus a preponderance of judicial authority in favour of the view that in a suit for accounts or mesne profits the value stated in the plaint should be considered to be the value of the subject-matter in suit for determining the forum of appeal also and I find myself in respectful agreement with that view.
18. According to Section 7 (4) (f) of the Court-fees Act, court-fee in a suit for accounts is to be computed according to the amount at which the relief sought is valued in the plaint, and in view of Section 8 of the Suits Valuation Act the amount at which the relief sought is valued in the plaint would be the value for purposes of jurisdiction also.
According to para 31 of the Himachal Pradesh (Courts) Order 1948, an appeal from a decree of a Subordinate Judge in a suit of value not exceeding 5000/- rupees lies to the Court of the District Judge and it is thus obvious that in a suit for accounts where the relief sought in the plaint is valued at Rs. 5000/- or less, an appeal against the decree of the Subordinate Judge would lie to the District Judge, irrespective of the decretal amount.
19. I am, therefore, of the opinion that the forum of appeal in a suit for accounts would depend on the value of the relief as set out in the plaint and not on the amount for which the decree may have been passed.
20. In the instant case the respondent had not valued the relief for recovery of the sum on account of the feeding charge for the period subsequent to the institution of the suit and this omission escaped the notice of the office of the' Senior Subordinate Judge also. The respondent should have been required to state the value of that relief also. The fact however remains that the value of the suit as stated in the plaint was Rs. 767/1/-only and an appeal against the decree passed in the suit would properly lie in the Court of the District Judge.
21. I, therefore, uphold the preliminary objection and return the memorandum of appeal to theappellant for presentation to the proper Court. Inview of the conflict of judicial authority on thepoint under consideration no order is made as tocosts incurred in this Court.Order accordingly.