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Municipal Committee Vs. Gurdial Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberFirst Appeal No. 12 of 1967
Judge
Reported inAIR1973HP64
ActsCourt Fees Act, 1870 - Section 7; ;Suits Valuation Act, 1887 - Section 8; ;Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 2
AppellantMunicipal Committee
RespondentGurdial Singh and ors.
Cases ReferredSihor Electricity Works Ltd. v. Gujarat Electricity Board
Excerpt:
- chet ram thakur, j.1. in this appeal a preliminary objection has been raised by the learned counsel for the respondent that the appeal is not maintainable to this court inasmuch as the jurisdictional value as given in the plaint is rs. 2,975/- and according to section 39 of the punjab courts act, an appeal from a decree or order of a sub judge shall lie-'(a) to the district judge--(i) where the decree or order was made before the 28th day pf june, 1963, and the value of they original suit in which the decree or order was made did not exceed five thousand rupees, or (ii) where the decree or order is made after the 28th day of june 1963. and the value of the ordinal suit in which the decree or order is made does not exceed ten thousand rupees: and (b) to the high court in any other case.'.....
Judgment:

Chet Ram Thakur, J.

1. In this appeal a preliminary objection has been raised by the learned counsel for the respondent that the appeal is not maintainable to this Court inasmuch as the jurisdictional value as given in the plaint is Rs. 2,975/- and according to Section 39 of the Punjab Courts Act, an appeal from a decree or order of a Sub Judge shall lie-

'(a) to the District Judge--(i) where the decree or order was made before the 28th day pf June, 1963, and the value of they original suit in which the decree or order was made did not exceed five thousand rupees, or

(ii) where the decree Or order is made after the 28th day of June 1963. and the value of the ordinal suit in which the decree or order is made does not exceed ten thousand rupees: and

(b) to the High Court in any other case.'

2. This decree appealed against was made on 28th March, 1963, hence the appeal lay to the District Judge and not to the High Court.

3. The facts of the case briefly are that the plaintiff auctioned the lease Of the right of collection and recovery ofparking fee for motor vehicles on the Motor Stand, Simla, durins the year commencing from 1st April. 1958 and ending on 31'st March 1959. This auction was made on 14th March, 1958 and the highest bid for Rs. 6100/- was of defendant No. 1, acting for and on behalf of defendant No. 2 as its proprietor. This bid was accepted by the plaintiff. Out of the lease money the defendant paid Rs. 3125/- to the plaintiff on various dates and entered into an agreement (P. B.) for Payment of the balance. According to the plaintiff the balance due from the defendants was Rs. 2975/- and which they failed to pay despite several demands. The plaintiff fited a suit for recovery of the aforesaid amount. He fixed the value of the subject-matter of the suit for purposes of jurisdiction and court-fee at Rs. 2975/-. The suit was resisted on a number of grounds, giving rise to the following issues:

1. Is the document dated 17th October, 1958 marked P. B. a lease and compulsorily registrable?

2. If so. what is the effect of nonregistration of the document on its validity or admissibility in evidence?

3. Is P. B. insufficiently stamped and if so what is its effect?

4. Was there no valid agreement between the parties to. the suit?

5. To what relief is the Plaintiff entitled?

4. After the conclusion of arguments on 24th August, 1960 the case was reserved for orders. On the same date, the plaintiff made an application Purporting to be one under Order 6. Rule 17 of the Civil Procedure Code. Vide paragraph 4 of the application it was submitted 'that without prejudice to the above submission, it is further submitted that in case the learned Court holds that the said agreement. Exhibit P. B. (stated as Ex. P. 2) requires compulsory registration and is inadmissible in evidence for want of such registration then. in that event the plaintiff would be entitled to claim from the defendants compensation for having collected the fee during the year 1958-59'. In para No. 5 it was stated 'that in order to determine such compensation it may be necessary for the defendant to render accounts of the collections made by him during the year.' Therefore, he Prayed for permission to amend the plaint so as to insert the following clause:

'That if it found that the agreement sued upon is inadmissible in evidence and inoperative for any reason whatsoever then in that event, the plaintiff would be entitled to receive fromthe defendants compensation under Sections 65 and 70 of the Contract Act or in equity. The amount of such compensation would be the amount which the defendants had agreed to pay under the agreement or can be ascertained, if the defendant so desires by his render-Ins accounts of collections made under the said agreement during the year 1958-59. The plaintiff would be prepared to pay additional Court-fee, if the amount so ascertained exceeds the claim in suit.'

This amendment was opposed by the defendants. The learned Senior Subordinate Judge pronounced the judgment in the case on 26th August, 1960 and towards the close of the judgement it has been stated that. 'On 24th August, 1960, the plaintiff's counsel save an application under Order 6 Rule 17 Civil Procedure Code for amending the plaint, should it be held that P. B. is inadmissible. This application is obviously the result of a very belated afterthought, in this over a year old case and cannot be accepted at this stage. So it is disallowed.' The suit was dismissed with costs.

5. Against this, judgment and decree dismissing the suit the plaintiff went in appeal to the District Judge, who accepted the appeal, set aside the judgment and decree and remanded the case to the Court of the Senior Sub-Judge. Simla under Order 41 Rule 23-A Civil Procedure Code for a fresh trial and decision, after allowing the plaintiff-appellant to amend the plaint in the light of observations made by him.

6. After the remand the learned Senior Subordinate Judge allowed the amendment as would be found incorporated in Para No. 7 of the plaint. In Para No. 10 of the amended plaint the value of the subject-matter of the suit for purposes of jurisdiction and court-fee was fixed at Rs. 2975/-, and also claimed a decree for Rs. 2975/- with costs of the suit and future interest from date of suit till date of realization of the amount or in the alternative prayed for rendition of the accounts from the defendants of the amounts received by them as parking fee during the year 1958-59 and for a decree for the total amount thus received. After the remand the Senior Subordinate Judge framed the following issues in the case:

1. What is the effect of the District Judge's finding (in the remand order) about Exhibit P. B., dated 17th October. 1958?

2. Whether the Plaintiff is entitled to any compensation or damages, if so how much? Issue No. 1 is not relevant for the prosent purpose. Issue No. 2 was split up into two parts:

(a) whether the defendants are liable or not, and (b) for how much amount. He held on the first part of the issue that the defendants were not liable. On the second part it was held:

'Although in view of the above findings no decree can be passed against the defendants still the point has to be decided.' He discussed the evidence and concluded:

'So the advantage to be restored to the Municipal Committee would come up to Rs. 5354/- had the defendants been held liable and I hold accordingly. But since the defendants were found not to be liable, so the suit is dismissed.'

It is against this judgment and decree dismissing the suit that the appeal was filed in this Court. It is this amount of Rs. 5354/- which the learned Senior Sub-Judge had arrived at as the amount claimable by the plaintiff from defendant in case he had been held liable which the defendant took as the value for determining the forum of appeal. According to him under Section 7 (iv) (f). the value for purposes of jurisdiction is the same which is fixed by the plaintiff for Purposes of court-fee and in case of appeal it would be the value which has been determined by the Court as the value of the subject-matter of the suit. In the instant case, according to him, the value of the subject-matter of the suit as determined by the trial Court is Rs. 5,354/-. Therefore, it was this value which determined the forum of appeal. He also relies on a number of authorities of various High Courts for this submission of his. The learned counsel for the respondent contends that the value for purposes of court-fee and jurisdiction which has once been fixed by the plaintiff in the plaint will remain the same irrespective of findings and will not vary in case the suit is dismissed. He has supported his argument by a number of authorities.

7. The first authority relied upon is Tirath Ram v. Chaudhry Mal Mangat Ram, (AIR 1961 Him Pra 22). According to this authority 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. The second authority cited by the learned counsel is Kalu Ram v. Hanwant Ram, (AIR 1944 Lah 488 (FB)), In this case in a suit for recovery of money on unsettled accounts the plaintiff valued the suit for purposes of court-fees and jurisdiction at Rs. 8.000/-. The trial court found that he was entitled to get Rs. 3,375-4-6, whereuponboth the plaintiff and defendant appealed. The defendant appealed to the District Court, valuing his appeal at Rupees 3378-4-6. While the plaintiff appealed to High Court claiming a further sum of Rs. 6,000. The question to be determined was whether both the appeals lay to District Court or to the High Court. So, it was held by the Full Bench of that Court that the value of the subject-matter of the original suit was Rs. 8,000, for which the Subordinate Judge had claimed a decree and, therefore, under Section 30 (1). Punjab Courts Act. appeals against the decree whether instituted by the plaintiff for enhancement of the decretal amount or by the defendant for the total dismissal of the suit lay to the High Court, Therefore, from this it would follow that according to this authority in suits for recovery of money due on unsettled accounts the value as determined for computation of court-fee 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. Further 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 class 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.

In this case It was also observed that the Punjab Courts have held in a long series of decisions that in suits for recovery of money due on unsettled accounts the value which the plaintiff is permitted to fix on the plaint is merely tentative, intended to serve as a starting point for the inquiry, and that the real value is the amount which is finally found due by the Court on taking the account and for which it passes a decree in favour of one or other of the parties. It considered various cases of other High Courts and found that in Calcutta preponderance of authority is in favour of the view taken by the Punjab Court. However, the Madras High Court's view is that in suits for accounts or mesne profits the value of the subject-matter for the purposes of jurisdiction is the value as given in the plaint and the adjudication of the Court cannot alter it. In Allahabad the course of decisions has not been uniform. In Bombay the conflict of judicial opinion is much more marked, there being several cases on either side. It. therefore, further held:

'In a matter like this we should, in the absence of a clear statutory provision to the contrary, act on the principle of stare decisis et non movere quieta, and decline to make a departure from the existing practice sq as to unsettle a rule of procedure which has been followed consistently and uniformly in this province for more than half a century.'

But the facts of the case in hand are distinguishable. Here the valuation for purposes of court-fees and jurisdiction has been fixed at Rs. 2,975/- even in the amended plaint. The Court found that the defendant was not liable for damages. It was because of the fact that the appellate Court had remanded the case and in order to obviate the necessity of a further remand the trial Court gave a finding in the alternative that Rs. 5,354/- was the amount which the defendant could be asked to restore to the plaintiff on account of damages for use and occupation of the premises. But the ultimate result was that the suit was dismissed, and that way the plaintiff was held entitled to nothing. It was not obligatory on the Court to record a finding whether the defendant was liable to restore the benefit amounting to Rs. 5,354/- when from the material on the record it had come to a definite finding that the defendant was not liable to pay anything. Hence in such a case, in my view, it is the value as fixed by the plaintiff in the plaint which shall determine the forum of appeal and not the value as found by the trial Court while giving alternative findings under an issue merely to obviate the necessity of remand while eventually dismissing the suit of the plaintiff.

Abdul Hamid v. Mt. Khatoon Zaman Begam (AIR 1951 Lah 397) is not a case which has got a bearing on the facts of the present case, inasmuch as in that case the plaintiff had earlier claimed three reliefs and the value of the suit for purposes of jurisdiction was thus fixed at Rs. 1,00,260/-. On certain objections raised by the defendants, the plaintiff applied for leave to amend the plaint by deleting one relief. The plaint was allowed to be amended and in the amended plaint he claimed two reliefs only. He valued the suit for purposes of jurisdiction at Rs, 130/- for each relief or Rs. 260/- in all. and paid ad valorem court-fee on that amount. The defendant raised further objection that the suit with respect to 16 out of 32 properties in list (B) was not one for ad-ministration but was really one for possession of the plaintiff's share by partition. The Court accordingly directed the plaintiff to pay ad valorem court-fee on his share of the 16 properties. The plaintiff having failed to comply with the order the Sub-Judge rejected the plaint. An appeal was filed to the District Judge valuing; the appeal for purposes of jurisdiction at Rs. 260/- which was the value of the suit as fixed in the amended plaint, A preliminary objection was taken on behalf of the defendant-respondents that the appeal had been wrongly instituted in the District Court and that it should have been presented in the High Court, as the forum of appeal was to be determined not by the value of the suit for purposes of jurisdiction as fixed in the amended plaint, but by the value as given in the original plaint. The Additional District Judge accepted the objection of the defendants and held that the appeal lay to the High Court and returned the memorandum of appeal to the appellant for presentation in the High Court. So. it was in view of these facts that the High Court held that in such a case the valuation, as given in the original plaint, is no longer the valuation of the suit, but it is the relief asked for, and the value fixed in the amended plaint which determine the nature and forum of the suit as well as of appeal under Section 39, Punjab Courts Act.

8. In Abdul Majid v. Ala Bux, (AIR 1925 All 376). the subject-matter of the suit for purposes of jurisdiction and payment of court-fee was Rs. 2,500/-and the Subordinate Judge gave a decree for Rs. 5,796-9-3 and the defendant filed his appeal in the High Court valuing it at the amount which had been awarded in the decree by the Subordinate Judge. It was held therein that in order to determine the proper appellate Court, what has to be looked at, is the value of the original suit, that is to say. the amount or value of the subject-matter of the suit. The word 'value' 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 has been altogether misrepresented by the plaintiff.

Putta Kannayya Chetti v. Venkata Narasayya (AIR 1918 Mad 989 (2)) was a suit for dissolution of partnership and for accounts, and the plaintiff valued the subject-matter of the suit at Rupees 2,000/- and instituted it in the Court of the District Munsif, who after taking accounts found that the plaintiff was entitled to Rs. 5,557-7-1 and gave him a decree for that sum and interest. The defendants filed an appeal in the High Court. A preliminary objection was raised by the plaintiff-appellant that the appeal should have been preferred to the District Court On this the High Court held that in every case where the Court is seized of jurisdiction, it cannot and does not lose it by any change in the value of the subject-matter of tha suit after the institution of the suit or by the precise ascertainment of its value in cases which do not admit of such ascertainment at the time of institution, except when the plaint is allowed to be amended. The value of the subject-matter of a suit must be its valuation at the tune of the institution, and the amount or value of the subject-matter as fixed in the plaint should determine the Court to which the appeal lies. The theory of an appeal is that the suit is continued in the Court of appeal and re-heard there.

In Madho Dass v. Ramji Patak ((1894) ILR 16 All 286) the plaintiff brought a suit to obtain a declaration of his right to bring the half of the garden to sale in execution of his money-decree, and he also claimed that the defendant should be compelled to produce the ac-counts of the purchase-money, i.e., Rs. 2,50,000 and that the balance should be ascertained and should be decreed to be payable to him. He estimated such balance at Rs. 500 but the frame of his relief showed that he not only asked for Rs. 500 but for any amount which might be found in excess of that sum as the balance due. The suit was brought in the Court of the Subordinate Judge of Banaras, who dismissed the same. The plaintiff appealed to the District Judge who on appeal gave the plaintiff a decree declaring his right to bring the half of the garden to sale under his decree for money and also decreed in favour of the plaintiff Rs. 7,082-11-0 as the balance payable by defendant of Rs. 2,50,000 purchase-money. From that decree appeal was filed by the defendant to the High Court. It was contended that the District Judge had no jurisdiction to hear the appeal presented to him as the plaintiff had left it uncertain in his relief claimed what the actual amount claimed as the balance was and further that the District Judge had no jurisdiction as a Court of appeal to give a decree in appeal in the plaintiff's favour for any sum exceeding Rs. 5,000. The Court in that case held that the jurisdiction to hear a suit and to make a decree or to hear an appeal and make a decree in appeal, must be determined by the value assigned in the plaint, otherwise there would be no certainty as to the Court in which an appeal should be brought. In view of this it was further held that the District Judge had jurisdiction to hear the appeal and to make the decree which the District Judge made in that case.

9. In Sudarshan Das Shastri v. Ram Prasad. ((1911) ILR 33 All 97). the plaintiff sued to redeem a usufructuary mortgage of 7th June. 1847. The principal sum secured was 100 rupees, and the plaintiffs stated that the mortgage had been satisfied out of the profits of the property and that probably about another 100 rupees would be found due to them on taking an account, but if more was due they were ready to pay court-fees on the amount. The suit was brought in the Court of Munsif whose pecuniary jurisdiction was limited to Rs. 1,000 only. He gave the plaintiffs a decree for Rs. 4,267-12-2. This decree was affirmed on appeal by the Second Additional Judge of Aligarh. The defendants thereupon appealed to the High Court. The contention raised was that the Munsif had no jurisdiction to pass a decree for this amount and that the plaint ought to have been returned to the plaintiffs for presentation to the Court having jurisdiction to award that amount. It was held that the pecuniary jurisdiction of a Civil Court on its original or appellate side is. ordinarily speaking, governed by the value stated by the plaintiff in his plaint, and if a suit having regard to the valuation in the plaint is within the jurisdiction, such jurisdiction is not ousted by the court finding that a decree for a sum exceeding the limits of its pecuniary jurisdiction would be given to the plaintiff.

A similar view was taken in Ishwa-rappa Malleshappa v. Dhanji Bhanji, (AIR 1932 Bom 111). In Samdu Khan v. Madanlal. (AIR 1959 Raj 101) also a similar view was taken that the valuation for purposes of jurisdiction and appeal is the valuation made by the plaintiff in the trial Court, and that the appeal is not at all made to be dependent on the amount of the decree that may be passed in such suits. Section 7 (iv) (f) of the Court-Fees Act does not mention that the value fixed by the plaintiff is tentative or provisional. What it says is that the valuation can be fixed by the plaintiff according to what he likes and that valuation is to be taken to be correct for purposes of levy of the court-fees. By Section 8 of the Suits Valuation Act. this valuation is also taken to be the valuation for purposes of jurisdiction. Section 11 provides for the levy of the extra court-fee in case the amount decreed is higher, but does not touch the valuation of the suit for purposes of jurisdiction.

In Banu Mal Mangat Rai v. Nathulal. (AIR 1960 Punj 357) also it was laid down that if the value of the original suit does not exceed Rs. 5.000, an appeal from the decree would lie to the District Judge under Section 39 (1) ofthe Punjab Courts Act. Any way this was a mortgage suit and not an account suit. In Gajja Singh v. Gurdial Singh (AIR 1960 Punj 467 (FB)) which was a pre-emption case it was held that the jurisdictional value of a suit relating to pre-emption in respect of agricultural land throughout the litigation remains the same, that is. thirty times the land revenue, and the forum' of appeal is also to be determined by this value. In Ahad Mir v. Mahda Bhat. (AIR 1960 J and K 89) which was a suit for accounts, it was held that the jurisdictional value of the suit will be the jurisdictional value of the appeal as well. The forum of appeal has to be determined on the basis of the jurisdictional value stated in the plaint and in accordance with the Civil Courts Act.

10. On the other hand the authorities relied on by the learned counsel for the appellant are--Firm Kaura Mal Bishan Dass v. Firm Mathra Dass Atma Ram, Ahmedabad, (AIR 1959 Punj 646). It was a suit for rendition of accounts and for a decree for such amount as may be found due to it after the accounts have been gone into. The plaintiff did mention Rs. 200 in the plaint as the value of the suit for purposes of jurisdiction. The Sub-Judge 4th Class in whose court the suit was filed passed an order on the basis of the statement of the plaintiff claiming about Rs. 15,000 to Rs. 20,000 from the defendant that the court had no jurisdiction to try the suit. The suit, therefore, was forwarded to the District Judge who entrusted it to the Sub-Judge Ist Class, Amritsar, for disposal. The suit was dismissed. An appeal was presented before the Senior Sub-Judge, who on an objection that the appeal lay to the District Judge, returned it for presentation to the court of the District Judge. Before the learned District Judge an objection was raised by the defendants that the appeal was barred by time and this objection was accepted by the learned District Judge and the appeal was dismissed and then an appeal was taken to the High Court. An application for condonation of delay under Section 5 of the Limitation Act had also been filed and in that it had been stated that the delay was because the case was first filed in the court of the Senior Sub-Judge and later on the ground that the Senior Sub-Judge had no jurisdiction the appeal was returned for presentation to the District Judge and. therefore, the appeal had become time barred because of its being filed in the wrong court. The High Court accepted the contention of the appellant and in respect of the value for the purposes of jurisdiction it was held that in order to amount to a determination under Rule 4 framed by the High. Court by virtue of the powers conferred by Section 9 of the Suits Valuation Act, the Court must apply its mind and come to a precise determination as to what is the value of a suit for the purposes of jurisdiction. To say that the plaintiff expects, after going into accounts, to find a certain sum to be due to him does not amount to a precise determination as is contemplated by Rule 4. After the matter is determined by the Court it must, in order to be effective, result in amendment of the plaint by substituting the amount so determined, in place of the original valuation fixed in the plaint. It was further held that the value for the purposes of jurisdiction in the case continued to be Rs. 200/- because the suit for accounts is dismissed. It is only where a suit for accounts is decreed, that the decretal amount determines the forum of appeal, in case of dismissal of the suit, the original value continues to be the value for the purposes of determining the forum of appeal. This case is exactly like the one that we are dealing with. Here the suit has been dismissed and the plaintiff is not held entitled to anything and no decree has been passed in his favour and, therefore, in such a case it is the value which the plaintiff has fixed in the plaint for purposes of jurisdiction, which shall determine the forum of appeal and not the value which the court has given in its finding under one of the issues in the alternative, which it was not bound to do when it has specifically come to the conclusion that the defendant was not liable for any amount to the plaintiff. However, this authority further says that it is only where the suit for accounts is decreed, that the decretal amount determines the forum of appeal. But at present we are not concerned with this situation because there is no decree for any amount passed, so as to consider this aspect of the case.

Firm Diwan Chand Sant Ram v, Bhagat Ram, (AIR 1946 Lah 82) has got no bearing on the point in question, Asharfi Lal v. Pd. Kishori Lal, (AIR 1970 All 197 (FBI) has also got no bearing on the facts of the present case, inasmuch as there was no question about the jurisdictional value for purposes of appeal. What it decided was that the defendant appealing against the final decree passed against him in a suit for accounts should pay ad valorem court-fee on the amount of decree determined after accounting. There can be no dispute with the principle that for purposes of court-fee ad valorem court-fee would be payable on the amount determined after accounting but the question as to whether the decretal amount would determine the forum of appeal or the amount stated in the plaint by the plaintiffs for purposes of court-fee and jurisdiction would determine the forum of appeal was not considered in the aforesaid case.

Jaswant Ram v. Moti Ram. (AIR 1926 Lah 376 (FB)) was a suit for mortgage. It was held, that in, a suit for the redemption of immovable property the value for purposes of jurisdiction is the amount found by the Court to be the value of the mortgagee's charge on the property and not the amount alleged by the plaintiff to be due to the mortgagee. But this authority of a redemption suit cannot be made the basis for a suit for accounts, which falls under Section 7 (iv) (f), and reads as under:

'7 (iv) (f)--for accounts--According to the amount at which the relief sought is valued in the plaint or memorandum of appeal.'

From a plain reading of this section it would appear that the plaintiff is authorised in law to give his own valuation for purposes of court-fees. Under Section 8 of the Suits Valuation Act, where in suits other than those referred to in the Court-fees Act. 1870, Section 7. paragraphs 5, 6 and 9 and paragraph 10, Clause (d), court-fees are payable ad valorem under the Court-fees Act. 1870, the value as determinable for the computation of court-fees, and the value for purposes of jurisdiction shall be the same. Under Section 11 of the Court-fees Act. the plaintiff, in whose favour a decree for an enhanced amount has been passed cannot execute the same unless he pays the additional fee. But there is nothing in this section about the jurisdictional value for appeal, nor the Suits Valuation Act provides for any such tiling. For court-fee in appeal it is the subject-matter of the appeal, changed by the Court by its decree, on which the court-fee is to be paid. But in so far as the jurisdictional value is concerned it would remain the same irrespective of the fact what is the value of the subject-matter of the appeal, because for that purpose we have to advert to the subject-matter of the suit If the amount decreed is to determine the forum of appeal then it can also be said that a court cannot pass a decree exceeding its pecuniary jurisdiction. In that event the moment the Court comes to a conclusion that on accounts having been settled, an amount due from the defendant exceeds the pecuniary juris-diction of the Court, the Court shall have to return the plaint for presentation to the competent Court and if that Court also comes to a decision that the accounts have not been properly settled and the amount due is less which can be decreed by the lower Court then it would mean that it also would return the plaint and there would be no end or finality and. therefore, on that basis it can be concluded that it is the valuation, which is fixed by the plaintiff in the plaint which should determine the forum of appeal and the Court is not precluded from passing a decree exceeding its pecuniary jurisdiction in such cases.

11. In a suit for accounts the petitioner can get a decree for an amount exceeding the one which he has fixed arbitrarily for relief under Order 7, Rule 2, but that decree cannot be executed unless he actually makes up the deficiency of the court-fee. In case of appeal also it is that amount which has been decreed, on which he shall have to pay court-fee. But the jurisdictional value will remain the same as fixed in the plaint being the subject-matter of the suit. In the instant case no decree has been passed, therefore, the question of payment of any court-fee so as to entitle the plaintiff to fix the amount at Rs. 5,000/- and odd for purposes of jurisdiction and to take it away from the jurisdiction of the District Judge and come straight to the High Court, in my opinion, does not appear to be the correct valuation. Murari Lal v. Chet Ram. (AIR 1954 Punj 361 lays down that the forum of appeal in a redemption suit is governed not by the original jurisdictional value of the suit but by the amount which is found by the Court to be due. In that case it was further held that the District Judge when he conies to the conclusion that the amount which would be due on taking of the accounts would be more than Rs. 5,000/-cannot pass a decree. In fact statutory rules have now been framed for the purposes of valuation of redemption suits under the Suits Valuation Act and those rules govern the valuation for the purposes of the suit and the appeal is also a continuation of the suit and, therefore, in my opinion, the rule enunciated in this authority is not applicable to the instant case. Reliance is also placed on Sihor Electricity Works Ltd. v. Gujarat Electricity Board, (AIR 1969 SC 770). But after going through the authority. I am of the view that this authority has got no bearing at all.

12. Thus after perusing all the authorities placed before the Court by the learned counsel for the parties I am of the opinion that in any suit for accounts. Section 7 (iv) (f) of the Court-Fees Act as also Order 7. Rule 2 of the Civil Procedure Code authorise a plaintiff to give his own valuation for purposes of court-fee and under Section 8 of the Suits Valuation Act the valuation for purposes of court-fee and jurisdiction is tile same and the forum of appeal in a suit for accounts would depend on the valuation of relief as set out in the plaint and not on the amount for which a decree may have been passed. In so far as the present case is concerned, there is no decree passed in favour of the plaintiff. The suit has been dismissed whereby the plaintiff has been held to get nothing. There is only a finding on a part of the issue in the alternative determining the liability and that has been obviously done in order to obviate the necessity of a remand. The effect of the order of the trial Court is the dismissal of the suit and no. decree in his favour has been passed. Therefore, it is the valuation as fixed by the plaintiff in the plaint at the time of institution of the suit, which must determine the forum of appeal. That being so, the appeal being within the pecuniary jurisdiction of the District Judge is not maintainable in this Court Hence the preliminary objection raised by the learned counsel for the respondent is upheld and the result is that the appeal is returned for presentation to the proper Court.

K. S. Pathak, C.J.

13. I agree.


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