In Re: Dhanukodi Nayakkar and Others

Alfred Henry Lionel Leach, C.J.—This reference raises the much discussed question of the bearing of Section 7(iv)(f)of the Court-Fees Act

of 1870 when the defendant is the appellant. In a suit for recovery of possession of immovable property and for an account filed in the Court of the

Subordinate Judge of Madura the plaintiff valued his relief, so far as it concerned his claim for an account, at Rs. 3,000. He obtained a preliminary

decree, which was followed in due course by a final decree, by which he was declared to be entitled to recover a total sum of Rs. 32,000. The

preliminary decree was challenged on appeal to the District Court of Madura, but this appeal had not been decided at the time of the passing of the

final decree by the trial Court. An appeal against the final decree was also filed, and the District Court heard the two appeals together. The result

was that the decree of the trial Court, so far as it directed the payment of money, was varied, it being held that the plaintiff was only entitled to

recover Rs. 6,554-5-2. The defendants concerned then appealed to this Court and valued their relief at Rs. 100, paying the court-fee of Rs. 11-3-

0 thereon. This valuation was accepted by the office, as it was in accordance with the decision of this Court (Ramesam and Mockett, JJ.) in the

case of In re Nukala Venkatanandam (1932) 64 M.L.J. 122 : ILR 56 Mad. 705, but when the appeal came before Burn. J., for admission my

learned brother questioned the right of the appellants to make an arbitrary valuation and suggested that In re Nukala Venkatanandam (1932) 64

M.L.J. 122 : ILR 56 Mad. 705, should be re-considered as it appeared to go beyond the decision of the Privy Council in Faizulla Khan v.

Mauladad Khan (1929) 57 M.L.J. 281 : L.R. 56 IndAp 232 : ILR 10 Lah. 737 (P.C.) on which Ramesam and Mockett, JJ., had relied. This

Bench has consequently been constituted to consider the whole question of the stamping of appeals by defendants in suits for accounts, as it is

important for the legal profession and necessary for the guidance of the officials of the Court whose duty it is to check the stamping of memoranda

of appeal that there should be a clear statement of the practice to be followed as regards both preliminary and final decrees.

The Courts of India have always regarded Section 7(iv)(f) of the Court-Fees Act as applying to appeals by defendants as well as to appeals by

plaintiffs, but whether there is justification for including defendants is open to question. Certainly support can be found for the contention that the

legislature did not intend it to apply to appeals by defendants. In the first place the Act was passed when the CPC of 1859 was in force and that

Code did not contemplate an appeal from a preliminary decree in a suit for an account. In the second place, Section 11 which was inserted to

prevent a litigant escaping payment of the proper court-fee only applies to plaintiffs. There is no corresponding provision to meet the case of a

defendant who appeals and under-values his relief. Then Clause (iv)(f) itself only mentions the plaintiff. It states that in suits falling within the clause

the amount of fee payable should be computed according to the amount at which the relief is valued in the plaint or memorandam and concludes

with these words:

In all such suits, the plaintiff shall state the amount at which he values the relief.

Although the memorandum of appeal is included, the emphasis is on the plaintiff. It is he who must value the relief. The wording of the clause and

of Section 11 read in the light of the history of the section certainly does suggest that the defendant was not within the contemplation of those who

were responsible for the drafting of the Act. Assuming this to be in fact the case, it would not follow that a defendant-appellant would escape

payment of a court-fee. Section 4 or 6 read with Article 1 of Schedule I could be called in aid to prevent this, and a defendant-appellant would

here find no loophole for placing an arbitrary value on his relief.

In view of the unanimity of previous opinion, we will accept the contention that Clause (iv)(f) does apply to appeals by a defendant and discuss

the matter from that standpoint. The case of an appeal from a preliminary decree will be taken first. This question was considered by this Court in

1889, when Shepherd and Subramania Ayyar, JJ., in Santiya Mavali v. Meenammal (1899) 10 M.L.J. 240 : ILR 23 Mad. 490, held that the

valuation given by the plaintiff was the valuation to be accepted, except when the appeal did not comprise the entire subject-matter of the suit. The

question was raised again in 1915 in the case of Dhupati Srinivasacharlu v. Perindevamma (1915) 30 M.L.J. 402 : ILR 39 Mad. 725, which was

decided by a Full Bench consisting of Wallis C.J., Sadasiva Aiyar and Srinivasa Aiyangar, JJ., who concurred in the opinion expressed in Samiya

Mavali v. Meenammal (1899) 10 M.L.J. 240 : ILR 23 Mad. 490. This decision has governed the practice in the Madras Presidency ever since.

Therefore for nearly 40years a defendant appealing from a preliminary decree for an account has ordinarily had to stamp his memorandum

according to the plaintiff''s valuation. The decision has, however, not found general acceptance and some High Courts consider that when a

defendant appeals from a preliminary decree in a suit for an account he is at liberty to value his appeal at whatever amount may seem to him to be

approximately correct. The reasoning which challenges the correctness of the decision in Dhupati Srinivasacharlu v. Perindevamma (1915) 30

M.L.J. 402 : ILR 39 Mad. 725, will be gathered from the judgments delivered by Sulaiman and Boys, JJ., in Chunni Lal v. Sheo Charan Lal

Lalman ILR (1925) All. 756, and may be summed up in very few words. Clause (iv)(f) allows the plaintiff to state his own valuation and as it does

not compel the defendant to accept the plaintiff''s valuation it is just to read it as placing the defendant-appellant on the same basis as the plaintiff-

appellant. Sulaiman, J., frankly acknowledged that this interpretation of the section will be unsatisfactory in some cases and may lead to

inconvenience. It ignores the fact that Section 11 only applies to the plaintiff and that there is no corresponding section so far as the defendant is

concerned.

Before deciding whether the practice laid down in Dhupati Srinivasacharlu v. Perindevamma (1915) 30 M.L.J. 402 : ILR 39 Mad. 725 should

continue to be followed, it is necessary to pause to consider the decision of the Judicial Committee in Faizulla Khan v. Mauladad Khan (1929) 57

M.L.J. 281 : L.R. 56 IndAp 232 : ILR 10 Lah. 737 (P.C.), which was an appeal by the plaintiffs in a suit for an account. They valued their relief in

the plaint at Rs. 3,000, but the trial'' Court passed a decree against them for Rs. 19,991. They appealed and valued their relief for the purpose of

the appeal at Rs. 19,991, but they did not stamp the memorandum to include the Rs. 3,000, which they claimed they were entitled to. The

appellate Court in remanding the matter for re-trial ordered that they should not have a decree for any sum which might be due to them, as the

court-fee paid did not cover that relief, and to that extent the appeal was barred by limitation. The Privy Council held that the court-fee paid on the

sum of Rs. 19,991 was largely in excess of the true sum of relief at which a sound valuation could in the circumstances be said to reach and it

covered the appeal as a whole, including the sum of Rs. 19,991, on the one hand and the smaller sum of Rs. 3,000, on the other. In the course of

the arguments which, are to be found reported in Faizulla Khan v. Mauladad Khan (1929) 57 M.L.J. 281 : L.R. 56 IndAp 232 : ILR 10 Lah. 737

(P.C.), it was pointed out by Lord Tomlin that the scheme of the Act was that the plaintiff should be allowed to value his own relief, and the

decision proceeded on this basis. Their Lordships were not called upon to consider the case of a defendant-appellant and consequently their

decision cannot be taken as a guide when deciding whether Dhupati Srinivasacharlu v. Perindevamma (1915) 30 M.L.J. 402 : ILR 39 Mad. 725

or Chunni Lal v. Sheo Charan Lal Lalman ILR (1925) All. 756 should be followed.

After careful consideration, we have come to the conclusion that the Full Bench decision of this Court in Dhupati Srinivasacharlu v.

Perindevamma (1915) 30 M.L.J. 402 : ILR 39 Mad. 725 should not be disturbed. By reason of its concluding sentence, Clause (iv)(f) can be

construed in the way it was construed in that case, but even if the decision means reading into the clause something which is not there, it does not

read into it anything more than those who prefer the Allahabad opinion would read into it. There are, however, other reasons why the decisions

should stand. It cannot be said that in compelling a defendant to follow a plaintiff''s valuation hardship is likely to result. A plaintiff is never anxious

to pay more than is necessary in court-fees. A Court; is naturally reluctant to depart from a long-established practice and should only do so when it

is clear that the practice is contrary to law, which is certainly not the case here. Moreover, the Madras High Court does not stand alone. The

decision in Dhupati Srinivasacharlu v. Perindevamma (1915) 30 M.L.J. 402 : ILR 39 Mad. 725 found acceptance with the majority of the Court in

Pochalal Ranchhod v. Umedram Kalidas ILR (1928) Bom. 904 and in Deoji Goa v. Tricumji Jivan Das ILR (1935) Pat. 658. The decision in

Dhupati Srinivasacharlu v. Perindevamma (1915) 30 M.L.J. 402 : ILR 39 Mad. 725 will, therefore, continue to govern the practice in this

Presidency with regard to appeals by defendants from preliminary decrees in suits for account.

Until the decision in Nukala Venkatanandam, In re (1932) 64 M.L.J. 122 : ILR 56 Mad. 705, it was never questioned in the High Courts of

India that a defendant appealing against a final decree should pay a court-fee on the amount of the decree passed against him - except in cases

where he appealed only against a portion of the decree - and we are unable to concur in the opinion that Faizulla Khan v. Mauladad Khan (1929)

57 M.L.J. 281 : L.R. 56 IndAp 232 : ILR 10 Lah. 737 (P.C.) has put a different construction on the section. Faizulla Khan''s case, as I have

already indicated, only dealt with the case of a plaintiff-appellant. The section gives great freedom to plaintiff-appellants, but we do not consider

that it gives the same freedom to defendant-appellants. When a defendant-appellant appeals against a final decree he knows exactly the value of

his relief. It follows that we consider that Nukala Venkatanandam, In re (1932) 64 M.L.J. 122 : ILR 56 Mad. 705, was wrongly decided and,

therefore, should not be followed.

In the present case, according to the heading of the memorandum of appeal, the appeal relates only to the preliminary decree for an account, but

at the end of the memorandum there is this note:

The appeal is from a combined preliminary and final decree passed by the appellate Court in a suit for taking of accounts and hence it is impossible

to state accurately what the net liability of the appellants will be on a proper taking of the accounts, accepting the contention raised in the

memorandum of grounds.

In the course of his arguments, the learned advocate for the appellants intimated that the intention was to limit the appeal to the preliminary

decree, because if that was set aside the final decree would also fail. We see no objection to the appellants treating their appeal as an appeal

against the preliminary decree, if they so desire, but they will have to value their relief in accordance with the valuation in the plaint.