Boyot Selvacarassou rep. by power agent Boyot Virappan vs Perumal

K.M. Natarajan, J.—This petition is filed under S. 151, C.P.C., by the respondent in the appeal praying for return of the appeal for

presentation before proper court in accordance with law. It is alleged in the affidavit in support of the petition that the petitioner filed the suit O.S.

105 of 1983 for a declaration of title and recovery of possession of the suit property and the suit was decreed as prayed for. However, the trial

court suo motu granted compensation of damages to wards the value of the building in the suit property and directed the petitioner herein to pay

the same, as well as additional court fee on the said sum. It is further stated that the said compensation was granted arbitrarily without any counter

claim and also any plea in this regard. According to the petitioner, he had valued the suit at Rs. 10,875 under S. 25 (a) of the Pondicherry Court

fees and Suits Valuation Act. Even the respondent herein has not challenged the said valuation. The Court below had not directed the petitioner to

amend his plaint by enhancing the value of the suit at any point of time. Hence, the value of the suit remains only at Rs. 10,875. The direction to

pay Rs. 25,000 as compensation to the respondent in the judgment cannot be added on to the value of the suit for the purposes of invoking the

appellate jurisdiction of this Court. The appeal ought to have been filed before the District Court. Hence this petition. The said application was

resisted by the respondent and in the counter affidavit it is stated that though the petitioner has filed the suit in the first instance and valued the suit

as alleged at Rs. 10,800, subsequently the petitioner has been called upon to pay additional court fee as per the decree passed in the above suit in

respect of the value of the superstructure. The petitioner has also complied with the decree and paid the court fee. The petitioner having complied

with the decree without any protest and not having challenged the same by way of appeal, the present application is not maintainable. In the decree

it is provided that the suit was originally valued at Rs. 10,800 and subsequently it was valued at Rs. 35,900 by adding Rs. 25,100 being the value

of the superstructure. Accordingly, the jurisdiction in filing this appeal vests only in the High Court. In this connection, the respondent relied on S.

52 of the Tamil Nadu Court fees and Suits Valuation Act. Therein it is stated that the payment of court fees in appeal can be the same as that

would be payable in the court of first instance. Hence, in view of the judgment and decree of the court below, the appeal having the value of more

than Rs. 30,000 this Court alone has got jurisdiction to entertain the appeal. As such, the petition is devoid of merits.

Learned counsel for the petitioner Mr. G. Masilamani, invited the attention of this Court to various decisions of this Court and other High

Courts. In Putta Kannayya Chetti v. Rudrabhatla Venkata Narasayya L.W. 580(F.B.) = 32 M.L.J. 221 (F.B.), a Full Bench of this Court held:--

Where a suit for accounts is instituted in a District Munsif court, the plaintiff valuing the subject matter of the suit at an amount within the pecuniary

jurisdiction of the District Munsif and a decree is passed for more than Rs. 5,000 the appeal from that decree lies to the District Court and not to

the High Court.

The Full Bench elaborately discussed the general principles regarding the forum on appeal in such a situation. The learned counsel next relied on

the decision in Jallaluddin Marakayar V. Vijayasami 39 Mad. 447, where it was held--

In a suit for redemption of a mortgage instituted in the Subordinate Judge''s court, the amount of the principal of the debt was Rs. 3,899 and odd,

the plaintiffs paid court fees on that amount; but the Subordinate Judge erroneously ordered the plaintiffs to pay court fees on the total amount

payable on redemption, viz., Rs. 7,218 and odd, and the plaintiffs paid the deficit court fees. The Subordinate Judge passed a decree in the suit in

favour of the plaintiffs. The defendants preferred an appeal to the High Court. The respondents objected that the appeal did not lie to the High

Court, but to the District Court;

Held, that the amount of the principal debt must be taken as determining the jurisdiction under the Civil Courts Act, and consequently that the suit

lay in the Subordinate Judge''s court and that the appeal lay to the District Court and not to the High Court.

In the above case, reliance was placed on the earlier decisions reported in Zamorin of Calicut v. Narayana 5 Mad. 284, and Vasudeva v.

Madhava 16 Mad. 326. The learned counsel next relied on the decision In Re: Bhujam Sriramulu Chetti and Others, . It was observed therein-

The plaintiff valued his suit at Rs. 3,100 but the Sub Judge valued it at Rs. 5,862 and called on the plaintiff to pay additional court fee and on the

plaintiff failing to pay the same rejected the plaint. The plaintiff preferred an appeal to the High Court. The question was whether under S. 13, the

appeal lay to the High Court or the District Court.

Held, that......(2) the value of the suit was the plaint valuation, viz., that set in the plaint by the plaintiff, unless and until his valuation was amended

and not the valuation fixed by the Sub Judge which was in dispute and therefore the High Court had no jurisdiction to entertain the appeal as the

value in the plaint did not exceed Rs. 5,000 and that the appeal should be returned for presentation to the proper court.

(Kannia Chetti v. Venkatanarasiah1, explained and relied on).

The observation made in that case are relevant in this case and they read:

In the present case, however, the plaint has not been amended. The valuation as determined by the learned Subordinate Judge is in dispute and''

may be varied by the appellate court. In my judgment, therefore, the principle enunciated in Kannayya Chetti v. Venkatanarasiah 5 L.W. 580

(F.B.) = AIR 1918 Mad. 998 (F.B.) = 40 Mad. 1, namely that the valuation given in the plaint in the first instance and not a disputed sum which

may be varied governs the forum of appeal, applies to the present case. In this view, the appeal must be returned for presentation to the proper

court.

In Ramanna v. Subbarayadu 64 L.W. 462=A.I.R. 1951 Mad. 886, it has been held that if the value of the suit is amended in the plaint in

obedience to the order of Court on a preliminary issue regarding valuation, in such cases it is not the original valuation but the revised valuation that

determines the forum of appeal. In National Insurance Co. Ltd. v. Vinod Kumar Bansal AIR 1977 N.O.C. 193 (Allahabad), a Division Bench of

the said court held-

Suits Valuation Act (1887), S. 8 forum of appeal--valuation of the original suit determines the forum of appeal--Fact that amount larger than the

valuation is decreed does not change the forum.

In Annapurna v. Sabita AIR 1977 Cal. 3231, a Division Bench held--

In a suit for partition which was valued at Rs. 8,000 a preliminary decree was passed. Before however, the final decree was passed, the trial court

valued the suit at Rs. 24,000 for stamp duty and directed the plaintiff to pay stamp duty on that valuation. In the final decree the suit was shown to

be valued at Rs. 24,000......

Held: that Court could not enhance the valuation of the suit once the preliminary decree was passed and it was a mistake that the suit was shown

as valued at Rs. 24,000 in final decree and the appellant instead of approaching the High Court ought to have pointed out the mistake before

District Judge.

It was also observed in that decision that it is well established that the forum in which an appeal is to be filed is determined by the valuation of the

suit.

Applying the ratio in the decisions quoted above to the facts of this case, it is seen that it is not in dispute that the suit was originally valued only

at Rs. 10,875 and only by virtue of the judgment of the lower court, it is provided in the decree that the value of the superstructure is Rs. 25,100

and the plaintiff was directed to pay an additional court fee of Rs. 1,883 on Rs. 25,000 being the value of the superstructure and the

improvements. The learned counsel for the petitioner submitted that in E.A. 415 of 1987 before the lower court, the petitioner has prayed the

lower court to pass an order allowing the lodgment schedule filed by him to deposit the decree mentioned amount of Rs. 25,100 to the credit of

the suit and in the affidavit, it is stated that the same is done without prejudice to his rights to seek other remedies in the other forum. It was also

pointed out by the learned counsel for the petitioner that the value of the suit cannot be altered by Court except under the procedure provided

under the Code. If the plaint valuation is incorrect, the court has to frame preliminary issue, give a decision regarding the value and thereafter direct

the plaintiff to amend the plaint and pay court fee.

In this connection, the learned counsel drew my attention to S. 12 of the Court fees Act, which deals with the procedure to be followed and to

render a decision as to proper fee payable on the suit in the Subordinate Courts. The learned counsel submitted that, in the absence of any

amendment of the plaint, the mere fact that by virtue of the judgment of the court below additional court fee was paid towards the value of the

superstructure would not mean that valuation has to be adopted for the purpose of preferring appeal as regards jurisdiction. As laid down in the

above decisions of this Court, for determining the jurisdiction, the value given in the plaint for the purpose of court fee and jurisdiction alone has to

be taken into consideration even though additional court fee was paid in pursuance of the judgment passed by the trial court. I find much force in

the'' said contention of the learned counsel for the petitioner. On the other hand, the learned counsel for the respondent relied on S.52 of the Court

fees Act which provides that the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the

subject matter of the appeal. The learned counsel also referred to Explanations (1) and (4) of that section, wherein it is provided that where the

appeal is against the refusal of a relief or against the grant of the relief, the fee payable in the appeal shall be the same as the fee that would be

payable on the relief in the court of first instance. But, it has to be noted that under Explanation (5) it is provided that where the market value of the

subject matter of the appeal has to be ascertained for the purpose of computing or determining the fee payable, such market value shall be

ascertained as on the date of presentation of the plaint. However, in view of the uniform view taken by this Court and other High Courts, I am of

the view that the appeal papers are to be returned to the appellant for presentation before District Court. In the result, the petition is allowed. The

office is directed to return the appeal papers to the appellant for presentation before District Court. The appellant is directed to present the appeal

in the District Court within two weeks from the date of receipt of records. No order as to costs.