Chennupati Suryaprakasa Rao and Another vs Mallipeddi Venkateswara Rao and Others

Ramesh Madhav Bapat, J.—This appeal is filed by the appellants 1 and 2 herein, who were the defendants in O.S. No. 306 of 1990 which was pending on the file of the Principal Subordinate Judge, Vijayawada.

The plaintiff Mallipeddi Venkateswara Rao had filed the aforesaid suit against the appellants herein and other defendants for specific performance of the contract of sale which is alleged to have been executed by the defendants therein agreeing to sell the land to the extent of Ac. 0-52 cents in R.S. No. 68/1 situated at Patamata village within the jurisdiction of Vijayawada Municipal Limits. On hearing both sides and on recording the evidence in the aforesaid suit, the suit came to be decreed.

Being aggrieved by the aforesaid judgment and decree of Principal Subordinate Juge, Vijayawada, the appellants herein i.e., the defendants 1 and 2 in the suit, have preferred the present appeal by raising various grounds in the appeal memo whereas no appeal was filed by the other defendants. On presentation of the appeal, it was admitted. At the time of filing of the appeal, the appellants herein filed C.M.P. No. 19691 of 1996 with a prayer to stay all further proceedings including the execution of the decree in toto in O.S. No. 306 of 1990 on the file of the Principal Subordinate Judge, Vijayawada. When the defendants served (with) the notices of the appeal as well as the interim application on the respondents, the plaintiff-1st respondent herein filed petition. In the said petition, the plaintiff had contended that the appellants-defendants did not value the appeal properly for the purposes of advocate''s fee, Court fee etc. Thus, this CM.P., was placed before this Court for hearing.

The learned Counsel Mr. T. Veerabhadrayya appearing on behalf of the plaintiff-1st respondent herein submitted at the Bar that the appeal is not properly valued for the purposes of Court fee, advocate''s fee and jurisdiction. If the appeal is properly valued, then the Single Judge of the High Court has no jurisdiction to hear the appeal and dispose of the same. The appeal has to go before the Division Bench of this Court.

The learned Counsel Mr. T. Veerabhadrayya further submitted at the Bar that the plaintiff-1st respondent herein had filed the suit basing on the agreement of sale against the defendants who had agreed to sell the land for consideration. When there was failure on the part of the defendants, the plaintiff was constrained to file the suit for specific performance of the contract of sale and the suit was decreed. No appeal was preferred by one of the defendants, who had l/3rd undivisible interest in the property whereas the appeal is preferred by the defendants 1 and 2 alone who have undivisible 2/3rds interest in the property.

The learned Counsel Mr. T. Veerabhadrayya further submitted that by going through the grounds raised in the appeal, it is evident that the appellants herein want this Court to set aside the entire decree passed by the Trial Court and therefore the appellants have to pay Court fee as per Section 49 of the Andhra Pradesh Court Fees & Suits Valuation Act, 1956, which reads as under:

"49. APPEALS: 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:

Provided that, in levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the Court of first instance or by the Court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree.

Explanation (1):- Whether 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.

Explanation (2):- Costs shall not be deemed to form part of the subject matter of the appeal except where such costs form themselves the subject matter of the appeal or relief is claimed as regards costs on grounds additional to, or independent of, the relief claimed regarding the main subject matter in the suit.

Explanation (3);- In claims which include the award of interest subsequent to the institution of the suit, the interest accrued during the pendency of the suit till the date of decree shall be deemed to be part of the subject matter of the appeal except where such interest is relinquished.

Explanation (4):- Where the relief prayed for in the appeal is different from the relief prayed for or refused in the Court of first instance, the fee payable in the appeal shall be the fee that would be payable in the Court of first instance on the relief prayed for in the appeal.

Explanation (5):- 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."

The learned Counsel Mr. T. Veerabhadrayya further submitted that if the Court fee is paid on the valuation of the suit as done in the Trial Court, then the appeal has to go before the Division Bench of this Court. The learned Counsel further submitted that Explanation No. 1 given in Section 49 of the A.P. Court Fees & Suits Valuation Act is applicable to the present set of facts.

While rebutting the aforesaid arguments, the learned Counsel for the appellants herein submitted that the interpretation of Section 49 of the A.P. Court Fees & Suits Valuation Act, 1956 done by the learned Counsel Mr. T. Veerabhadrayya is not correct. It was submitted that in the present case Explanation (4) of Section 49 of the said Act has application in the present set of facts.

Now the point arises for consideration of this Court as to what Court fee is payable in the present set of facts?

It is not in dispute that the plaintiff had instituted the suit for specific performance of the contract against the defendants. The appellants in the appeal together have 2/3rds share in the property whereas the other defendants in the suit have 1 /3rd share in the property. It is also not in dispute that the other defendants did not contest the suit but stated before the Trial Court by filing the written statement that they have no objection to pass the decree as prayed for by the plaintiff. Thus, it can be seen that the other defendants admitted the claim of the plaintiff whereas the claim of the plaintiff was resisted by the appellants herein. When the decree was passed against all the defendants, only the defendants 1 and 2 i.e., the appellants herein, have preferred the appeal. No appeal was preferred by the other defendants. The appellants while filing the appeal in Ground No. 1 pleaded that "the decree and judgment of the learned Subordinate Judge, in so far as they are against the appellants herein, are contrary to law, weight of evidence and probabilities of the case". In effect, they want the decree passed against them to be set aside.

I am not able to appreciate the arguments of the learned Counsel Mr. T. Veerabhadrayya as to how the appellants herein can pray in the appeal that the decree passed against the non-appellants be set aside. The appellants herein have no right in law to pray to set aside the decree passed against a person, who has not appealed. They can only pray for setting aside the decree as far as the decree passed against them is concerned.

The learned Counsel Mr. M.V. Ramana Reddy appearing on behalf of the appellants herein submitted that in appeal if the decree against the appellants herein is set aside, the appellants herein have no objection for the respondents becoming co-owners along with the plaintiff. The relief claimed in the appeal is only to the extent of setting aside the decree passed by the Trial Court against the appellants herein,

Considering the above factual position of law, this Court is of the considered view that the appellants herein have no right in law to make a prayer to set aside the decree against the non-appellants.

Therefore, this Court is of the considered view that the appeal is properly valued for the purposes of advocate''s fee, Court fee and jurisdiction. Thus, the point raised by the learned Counsel for the 1st respondent herein is hereby dismissed.