Anthony Salvador Dias vs A. Sivarama Rao

Happell, J.—The question in this civil revision petition relates to the court-fee payable on O.S. No. 239 of 1944, brought by the petitioner in

the Court of the District Munsiff of Mangalore. The petitioner on 1st September, 1932, executed a usufructuary mortgage in favour of the

respondent, the sum secured by the mortgage being Rs. 2,575. The petitioner brought the suit now in question for redemption of the mortgage and

paid court-fee oh the principal sum secured, namely, Rs. 2,575, u/s 7, Clause (ix) of the Court-Fees Act. Almost the whole of the mortgage

money was retained with the respondent to pay debts due by the petitioner to respondent himself and other creditors. In the body of the plaint the

petitioner alleges that owing to delay on the part of the respondent in paying the debts for which the consideration for the mortgage was retained by

him, a suit had been filed against the petitioner; insolvency proceedings had been instituted against him and he had been arrested for debt; and in

paragraph 7 of the plaint it is stated that for the worry, inconvenience and ignominy and mental distress, apart from pecuniary loss, which these

proceedings had occasioned him, the petitioner was entitled to recover at least Rs. 2,000 from the defendant. In the concluding portion, however,

of the plaint there is no specific reference to damages and it is stated that the plaintiff prayed for a decree against the defendant for the following

reliefs:

(1) Redemption of the suit property on payment by the plaintiff to the defendant of any sum the Court may on account being taken from the

defendant found to be due to him and possession of the suit property ....

The learned District Munsiff found that the claim for damages was a separate relief from the claim to be entitled to redeem the mortgage and

accordingly found that court-fee was payable in respect of the sum of Rs. 2,000 claimed in addition to the court-fee payable for the redemption of

the mortgaged property based on the principal amount secured, namely, Rs. 2,575. This meant that the District Munsiff had no jurisdiction to try

the suit ; and accordingly he directed that the plaint be returned for presentation to the proper Court.

It is argued by Mr. Fernandez for the petitioner that the claim for damages should not be regarded as a separate relief. He says that the

petitioner is entitled to have the damages set off against the amount due under the mortgage, and that this amounts to no more than the taking of an

account in order to ascertain the amount due to the respondent as a condition of redemption. In support of his argument he has referred me to the

following decisions of this Court ; Govindan Nayar v. Ithaletty (1925) 50 M.L.J. 493 , (Pulikeezha Variyath) Gopal Menon Vs. Raman Menon

and Others, ., Grandhi Pothanna Vs. Simhadri Satyananda Charyulu and Another, , and Radhakrishna Chetty and Another Vs. Miss Teckla

Schomberg, . In the first two cases it was held by Jackson, J., that where a suit was filed for redemption of a kanom with an added prayer for a

certain sum by way of damages, the proper valuation for court-fee and jurisdiction is the principal amount secured and not that amount plus the

damages claimed. The basis of these decisions, however, was the terms of Section 6(3) of the Malabar Compensation for Tenants Improvement

Act. The ratio decidendi was that the claim for damages from the point of view of payment of court-fee was in pari materia with compensation for

improvements also covered by Section 6(3). It had previously been held by this Court that in a suit for redemption of a kanom, court-fee had not

necessarily to be paid on the amount of compensation for improvements. These cases, therefore, are clearly distinguishable from the present case.

In the other two cases, Grandhi Pothanna Vs. Simhadri Satyananda Charyulu and Another, and Radhakrishna Chetty and Another Vs. Miss

Teckla Schomberg, , it was held that the valuation put by the plaintiff on the relief for redemption covered a relief in regard to surplus profits as

well, since the ascertainment of the amount payable by one party to the other, and prayers for surplus profits or accounts are merely incidental to

the main relief. These cases also, it, seems to me, are clearly distinguishable from the present case. Except to say that it was not known even on the

date of the plaint whether one of the debts, a sum of Rs. 484-0-6 due to a certain Francis Pinto had been paid in full, the petitioner did not

maintain that the debts for the payment of which the mortgage money or most of it had been retained had not been paid at all. He said that the

delay in paying them had caused him ""worry, inconvenience and ignominy and mental distress, apart from pecuniary loss"" ; and he assesses the

damages to which he was entitled at Rs. 2,000. It seems to me impossible to say that a claim to an. ascertained sum of damages to be set off

against the amount otherwise due on the mortgage is a matter merely incidental to the ascertainment of the amount payable by one party to the

other in a suit for redemption. A claim for surplus profits may well be regarded as merely incidental to the main relief ; but a claim for damages for

worry, inconvenience and ignominy and mental distress "" due to such reasons as arrest for debt and the institution of insolvency proceedings in

consequence of the conduct of the respondent are of a different character altogether. The relief claimed is clearly a separate relief and the decision

of the District Munsiff was correct.

The petition is, therefore, dismissed with costs.