Amulakh Amichand vs Maniar Mahasukhlal Nanchand

S.J. Chhatpar, J.—The above two appeals are from the same order and hence are being dealt with together. The appeals are by the two Defendants against whom a suit for settlement of partnership accounts was filed. In the plaint it was alleged that the partnership had its main business at Surendranagar which was carried on in the name of Vasantlal Chandulal. The partnership had two branches one at Dboraji where the business was carried on in the name of Mahasukhlal Nanchand and Anr. at Dhrangadhra where the business was carried on in the same name of Vasantial Chandulal. It is not necessary for me to give other details of the cause or action, as the question to be considered relates only to valuation of the suit for the purpose of court-fee. In para 9 of the plaint, the Plaintiff stated his inability to state what amount would be due to him on settlement of accounts. He therefore valued the suit for the purpose of court-fee and jurisdiction at Rs. 150/- and affixed court-fee stamp on the plaint on such valuation.

In the earlier part of the plaint he referred to some items of credit in the names of himself, his sons and daughters, of which however no figures were given. This reference to the credits gave handle to the Defendants to raise a plea that the suit was not properly valued and consequently insufficient court-fee was paid. The trial Court recorded the evidence of the Plaintiff on the whole case, and relying upon certain so-called admissions of the Plaintiff in his evidence came to the conclusion that the valuation by the Plaintiff was ''arbitrary and fraudulent''. The learned Judge held that the claim was under-valued, though he did not specify what should be the correct valuation and ordered the Plaintiff to amend the valuation in the plaint within a certain period. As the Plaintiff did not do so, he passed an order of rejection of the plaint under Order 7 Rule 11(b) Code of Civil Procedure. From this order the Plaintiff filed an appeal to the District Court.

Various objections were taken by the Defendants including the question whether the appeal lay to the District Court on the assumption that the trial Court had impliedly held that the value of the suit was very much more than Rs. 5000/- and therefore the appeal lay to the High Court. The District Court in an exhaustive judgment and going through various rulings of High Courts held as a question of fact that the Plaintiff was not in a position to estimate the amount which would be due to him on the settlement of accounts and that Section 7(4)(f), Court-fees Act, gave option to the Plaintiff to give whatever value he thought proper to his relief for accounts. He accordingly set aside the order of the trial Court and remanded the case for disposal in accordance with law. The present appeals have been filed by each of the two Defendants separately questioning the order of the District Court. The interests of both the Appellants so far as the question under consideration is concerned are identical.

I have heard the learned Advocates for the Appellants-Defendants at length. It is not disputed by them that if the finding of the District Judge that the Plaintiff was not in a position to state the correct estimate of his claim stands, the question whether the Plaintiff has an absolute right to value his relief in any manner he likes on which there is some difference of opinion between the various High Courts need not be gone into. This finding of fact by the learned District Judge is however challenged on the ground that it is based upon no evidence and also being contrary to the admissions of the Plaintiff. The only evidence recorded by the trial Court is that of the Plaintiff.

The learned advocates for the Appellants have been at pains to show that the Plaintiff had admitted that the business was making profits and that large lump sums on account of profits were credited in the name of the Plaintiff and that of his sons and daughters aggregating to the tune of about Rs. 76,300/- and therefore the conclusion that the claim was under-valued was irresistible; but the learned advocates have not been able to point out any passage in the deposition wherein the Plaintiff had definitely admitted that on the settlement of accounts any particular amount would be due to him. In their written statements the Defendants had denied that the Plaintiff was a partner and denied generally the claim of the Plaintiff in toto. In a suit for accounts of this nature, ordinarily it is not possible for the Plaintiff to give even an approximate value of his claim. The question will depend upon the proof of numerous transactions and debit and credit entries in the accounts.

In the present case, the Appellants'' contention that the finding of the learned District Judge was based upon no evidence or was contrary to the admissions of the Plaintiff himself is not substantiated. On the reading of the deposition along with the pleadings in the case, I agree with the conclusion arrived at by the learned District Judge that the Plaintiff was not in a position to give an approximate value of his claim. I do not therefore think it necessary to go into the further question whether the valuation of the Plaintiff could at all be challenged by the Defendants, which depends upon the interpretation of Section 7(4)(f), Court-fees Act, and of Rules 2 and 11(b) of Order 7, Code of Civil Procedure. The disagreement between the several High Courts on this question has arisen, because Section 7 permits the Plaintiff to put whatever value he chooses, while Rule 2 of Order 7 requires him to state an approximate value and Rule 11(b) of Order 7 implies a decision by the Court whether the plaint has been property valued.

The observations in the Privy Council case of-Faizullah Khan v. Mauladad Khan 31 BLR 841, particularly of Lord Tomlin in the course of argument to the effect that in a suit for accounts it is impossible to say at the out set what exact amount the Plaintiff will recover and therefore the Legislature leaves it open to him to estimate the amount and which is the scheme of the Act, as interpreted by different High Courts have also given rise to conflict of decisions whether the Court is bound to accept the valuation of the Plaintiff however arbitrary it may be or there is yet a power left to the Court to revise it and call upon the Plaintiff to pay additional fee accordingly.

It is not necessary for me to decide this question, but the trend of the Bombay High Court rulings to which this High Court usually gives preference is that the Plaintiff is at liberty to put his valuation in a suit for accounts and the Court cannot question such valuation. In the case of-Luhana Bulakhidas v. Luhana Shantilal Harilal 1952 SLR 30 , I dealt with the question of court fees in an'' administration suit and I observed that such a suit being for accounts it was open for the Plaintiffs to put any valuation they pleased and pay ''ad valorem'' court fee thereon relying upon Bombay rulings referred to in my judgment. The Bombay view is supported by the recent rulings reported in Lakhshmi Narain Vs. Bharat Singh, ; AIR 1945 Nag 4 ; Ghalib Rasool and Another Vs. Mangu Lal and Another, and AIR 1941 Ran 332.

The learned Advocates for the Appellants have raised some subsidiary questions the first being that the appeal to the District Judge did not lie. This contention is based on the decision of trial Court that the suit was under valued. But the trial Court had not given any definite decision as to what should be the correct value. In had left to the Plaintiff to amend his plaint for the purpose. The learned Advocates have urged that there is an implied decision in the judgment of the trial Court that the proper valuation should be at a figure in the neighbourhood of Rs. 67000/ -, but I can see no such implication. The decision merely amounts to this that the relief was undervalued. Besides this decision has been reversed and if I hold along with the District Judge, as I do, that the Plaintiff was not in a position to give an approximate value of his claim and therefore as the suit was properly valued, the appeal would lie to the District Judge, as the order of rejection of the plaint under Order 7, Rule 11, CPC is a decree within the definition of Section 2(2), Code of Civil Procedure, and the appeal lay to the District Judge, the value being less than Rs. 5,000/ -.

The second point urged before me is on the basis of Section 12(1), Court-fees Act, which says:

Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this Chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit.

It is argued that the decision of the trial Court fell within the purview of this Section and was not revisable by the District Court. But a decision as to valuation contemplated by the Section must be such from which the amount of fee chargeable can be determined, i.e. the Court must definitely fix the valuation from which the amount of court-fees will be calculated. This inference is clearly implied by the express terms of the Section (see also-Balkrishna v. Ramkrishna AIR 1931 Bom 234). In the present case there is no such decision. The words ''every question relating to valuation'' have been interpreted by various authorities and the general consensus of judicial opinion is that they refer only to the actual assessment or appraisement of the value of the suit or appeal apart from any question as to whether the court fee is to depend on the value of the suit or appeal or as to the principle according to which such value is to be assessed, and hence the question under what category a suit or appeal falls for the purpose of court fee is not within the purview of this Section.

Similarly, the questions as to the applicability of a particular provision of the Court-fees Act to a suit or appeal or as to the construction of a particular provision with references to a suit or appeal are not within the Section. I need not refer to the mass of judicial authority on the point but may refer to the commentary of Chitaley and Rao on the Court-fees Act, 1949 edition, at pages 304 and 305. The section applies apparently to such cases as where a suit is chargeable with court-fee computed according to the market value of the property in dispute and where the decision of the trial Court as to such market value would be final under the Section.

In present case, however, apart from the question whether the expression ''every question relating to valuation'' is of a comprehensive nature and cannot be construed in the restricted sense of a question relating to appraisement of court fee as distingiushed from the question of category and apart from the question that the valuation by the Plaintiff u/s 7(iv)(f) is final and not subject to revision by a Court, the order of the trial Court does not in fact decade the question of valuation but leaves to the Plaintiff to again reassess the value. Therefore, it cannot, under any circumstances, be construed as an order falling within the ambit of Section 12. I consequently reject this contention.

The last contention urged by the learned advocates for the Appellants is that the learned District Judge should in any case have either remanded the case to the trial Court for fixing a definite value or he himself should have fixed it. As I agree with the order of the District Judge that the Plaintiff was not in a position to give a correct valuation, I do not think it proper that I should make any such order of remand, as the Plaintiff will have to pay additional court fee u/s 11, Court-fees Act if more amount is found due to him. There is ample provision therefore for protection of Government revenues.

The result is that the above two appeals fail and are dismissed. The Appellants will bear the costs of the first Respondent-Plaintiff in the two appeals, while the second Respondent will bear his own costs.