In Re: Kantheeswaram Ekanathalingaswami Koil

M. Venkatasubba Rao, Kt., Officiating C.J.

The Officiating Chief Justice.--The plaintiff omitted to claim in his plaint future mesne profits and subsequently applied for permission to amend

his plaint by including a claim for such profits. The lower Court, which passed a decree in his favour for possession, rejected that application.

Against the decree for possession, the defendants filed an appeal in this Court and in the memorandum of objections which the plaintiff filed, a

claim was again put forward here to future mesne profits. Two questions have been argued and they arise in this way. The plaintiff contended that

on his memorandum of objections no Court-fee was payable, as the claim which he preferred in appeal in this Court could not in principle differ

from any claim he might have put forward in the Court of First Instance. This contention was overruled by Mr. White, the then Taxing Officer who

held that an ad valorem Court-fee was payable on the amount claimed. Two questions have been argued: first, is the decision of the Taxing Officer

revisable by the High Court? and secondly, is his decision on the merits right?

On the first question we are constrained to hold that u/s 5 of the Court-Fees Act the decision of the Taxing Officer has for every purpose

become final. It is unnecessary to deal with the cases cited by Mr. Venkatarama Sastri bearing on the other sections of the Act such as Section 12.

For instance, he strongly contended that in spite of the use of the word ''final'' in Section 12 the High Court in the exercise of its revisional

jurisdiction, set aside at the instance of the aggrieved plaintiffs, the orders of the lower Courts regarding the Court-fee payable by them on their

plaints vide observations in Muhamad Ellaiyas v. Rahima Bee (1928) 56 M.L.J. 302, Kattiya Pillai alias Sernthaya Pillai and Another Vs.

Ramaswamia Pillai (insane) by wife and next friend and Others, and The Secretary of State for India in Council Vs. Raghunathan and Others, . The

question here, however, turns on the specific wording of Section 5 which prescribes that when a particular procedure is followed, the decision

given becomes final. In this case a difference arose between the plaintiff''s Advocate and the Court-Fee Examiner as to the necessity of paying a

Court-fee on the Memorandum of Objections. That difference was referred to the Taxing Officer, who held that an ad valorem fee was payable.

The requirements of Section 5 are thus fulfilled and we must, giving the words of that provision their plain and natural meaning, hold that the

decision of the Taxing Officer has become final and cannot be impeached before us. It will be observed that in the matter of the adjudication being

final, the section makes no difference between the decision of the Taxing Officer and that of the Taxing Judge to whom he may refer the question.

To be consistent, the plaintiff must go the length of contending that the decision of the Taxing Judge can be no more final under the section than that

of the Taxing Officer; the anomaly of this position is obvious. Apart from my interpretation of the section, the settled practice of the Court has

been, dating back to the years 1897 and 1898 to treat the adjudication of the Taxing Officer as final and on a matter of this sort it is desirable not

to depart from the established practice. Ranga Pai v. Baba ILR (1897) 20 Mad. 398, Kasturi Chetti v. Deputy Collector, Bellary ILR (1898) 21

Mad. 269. See also T.S. Swaminatha Aiyar and Others Vs. M. Guruswami Mudaliar and Others, and Kandunni Nair Vs. Ittunni Raman Nair and

Others, . While on this subject, I may usefully point out that this section, like several other sections of the Court-Fees Act, is undoubtedly

defective, as it makes no provision for the Taxing Officer being compelled to refer the question to the Judge of the Court.

Although this conclusion should be sufficient to dispose of the matter, we have thought it proper to deal with the second contention, as the point

raised is one of considerable importance. In dealing with this question, it is important to bear in mind the procedure prescribed by the CPC in

determining the amount of past and future mesne profits. As regards past mesne profits, the Court has the option either to pass a decree fixing the

amount (that decree in a sense is ""final,"" though the term is inappropriate, there being a single decree) or to pass a preliminary decree directing an

enquiry as to the quantum of the profits and postponing the passing of the final decree till the enquiry is held. But as regards future mesne profits the

Court has no such option, but is bound in the first instance to pass a preliminary decree directing an enquiry. Then turning to Order 7, Rule 2, Civil

Procedure Code, there can be no question that in the very nature of things it applies to past mesne profits alone, for, it enacts that the amount of

the claim shall be stated approximately and it is obvious that future mesne profits are incapable of being estimated, depending, as they do, upon an

uncertain element, namely, the period of time which would intervene between the institution of the suit and the recovery of possession. In the

Court-Fees Act there are two sections which are relevant for the present purpose. Section 7(i) prescribes that in suits for money including suits for

damages or compensation, the Court-fee shall be computed according to the amount claimed. Mesne profits being in essence damages or

compensation, this section applies to suits for mesne profits. Once again, this provision can have no reference to future mesne profits which, as

already stated are incapable of being ascertained the plaintiff not being bound under Order 7, Rule 2, Civil Procedure Code, to state

approximately the amount of such profits. Section 11 of the Court-Fees Act with the Madras Amendment, provides for each of the cases which

Order 20, Rule 12, Civil Procedure Code, contemplates. Whatever obscurity there was in the law previously, there seems to be no room for

doubt under the present provisions. As already observed, in the matter of past mesne profits, a final decree may straightaway be passed; in such a

case part 1 of Section 11 applies, which enacts that if the profits decreed are in excess of the profits claimed, the decree shall not be executed until

the excess Court-fee is paid. If, however, in respect of past mesne profits the decree passed is preliminary and not final, the first clause of part 2

applies. It provides that where an enquiry into past mesne profits is directed and the amount ascertained on such enquiry exceeds the amount

claimed, no final decree shall be passed till the excess fee is paid. In the first case (that which falls u/s 11, part 1) the decree that has already been

passed shall not be executed; in the second case (that which falls u/s 11, part II, first clause) no final decree shall be passed. So much for mesne

profits antecedent to the suit. Then as to subsequent profits, the second clause of part II provides that when a final decree is passed following upon

a preliminary decree directing an enquiry (this is in strict accordance with Order 20, Rule 12, Civil Procedure Code) the final decree shall not be

executed until the requisite Court-fee is paid. The point to note is, and that is very important, that in respect of future mesne profits, no portion of

the Court-fee is payable before the final decree is passed; even then, if the plaintiff does not seek to execute the decree which he has invited the

Court to pass in his favour, he may altogether escape the payment of Court-fee. This rule, which may appear anomalous, is, however, based upon

an intelligible principle. A claim to subsequent mesne profits is in respect of a cause of action not arising at the date of suit; nevertheless, the Court

is empowered to grant them by way of an exception to the general rule that the reliefs claimed should be confined to causes of action which had

already arisen; but as has been pointed out in Doraisami Aiyar and Others Vs. T. Subramania Aiyar and Others, the power of the Court to award

mesne profits subsequent to suit is discretionary. On this ground, it has been held that when in a suit for past and future mesne profits the Court

passes a decree for the past mesne profits and says nothing in regard to the future mesne profits, a fresh suit to recover such profits is not barred

by res judicata. Doraisami Aiyar and Others Vs. T. Subramania Aiyar and Others, , Muhammad Ishaq Khan v. Muhammad Rustam Ali Khan ILR

(1918) 40 All. 292 and Bipulbihari Chakravarti v. Nikhilchandra Chakravarti ILR (1929) 57 Cal. 381. Thus the passing of a decree in respect of

the subsequent profits being in the discretion of the Court (though except for special reasons the Court will not refuse to exercise the discretion in

favour of the party), Section 11 of the Court-Fees Act has enacted that prior to the passing of such decree, no Court-fee is payable. Is there any

reason then why in principle this rule, which applies in terms to suits, should be departed from in the case of appeals? It is contended by the

learned Government Pleader that the body of the Act not having provided for appeals in the case of such claims, we must turn to the schedules to

the Act, which contain several articles relating not only to plaints but also to memoranda of appeal. True, the value of an appeal is not always the

value of the suit but the value of the relief granted by the decree, which the party seeks to get rid of; in that sense where the suit and the appeal are

differently valued, the Schedules to the Act may furnish the appropriate article. In the matter in hand, there is no question of an amount being

claimed in appeal in excess of what has been granted by the lower Court. On the other hand, the claim made here is identical with that made in the

Court below, namely, to have the right to subsequent profits adjudicated upon. The lower Court has held that in the circumstances of the case the

plaintiff ought not to be allowed to claim in this suit future mesne profits. It is this conclusion that the plaintiff attacks in the appeal. This very case

illustrates the good sense underlying Section 11, for, we have held, confirming the decision of the lower Court, that the plaintiff ought not to be

allowed to claim subsequent mesne profits by amending his plaint, and, as I have shown, he is not precluded by the doctrine of res judicata from

claiming these very profits in a fresh suit, paying a proper Court-fee on his plaint. The contention of the Government Pleader involves the levying of

a double Court-fee which, of course, would be obvious injustice. I am clearly of the opinion that the decision of the Taxing Officer is wrong; but

we are constrained, owing to our decision on the first point, to refuse to make an order granting a refund. We make no order as to costs.

Horwill, J.

I agree. The learned Government Pleader has put forward a somewhat novel argument that the main sections of the Court-Fees Act do not

apply to appeals, unless a section makes a specific mention of appeals such as Section 7(iv)(c) does, and that the provisions which apply to

appeals are to be found almost entirely in the schedules. If that were so, then appeals would be governed almost wholly by the most general

provisions, such as are found for example in Schedule 1, Article 1. None of the rulings quoted before us have gone anything like so far as this. The

learned Government Pleader relies principally on the judgments of Sir Arnold White in Reference under Court-Fees Act, 1870 (1905) 16 M.L.J.

287 : ILR 29 Mad. 367 and in a Full Bench case Kesavarapu Ramakrishna Reddi Vs. Kotta Kota Reddi and Others, in which he sat soon

afterwards. The subject-matter of each of those suits was a mortgage which was sought to be redeemed. In Reference under Court-Fees Act,

1870 (1905) 16 M.L.J. 287 : ILR 29 Mad. 367 the dispute was confined in appeal to a sum of money which had to be paid before the mortgage

could be redeemed, and the discussion turned on the question, now long settled, whether the ''subject-matter'', which was to form the basis for the

computation of the Court-fee, meant, in relation to appeals, the subject-matter of the appeal or the subject-matter of the original suit; and it was

held that Court-fee had to be paid in appeal on the subject-matter of the appeal. As the subject-matter of the appeal was a sum of money, clearly

Section 7, Sub-section (ix), applicable to suit''s for redemption, could not be applied to the appeals; and it was held that the only provision of the

Court-Fees Act applicable would be Article 1, Schedule 1. This decision went no further. An examination of the wording of the various sections of

the Court-Fees Act shows that they are intended to apply to appeals also; for example, Section 7 begins:

The amount of fee payable under this Act in the suits next hereinafter mentioned...shall be computed as follows.

In Section 7 (iv)(f) we find the words ""for accounts."" Thus Section 7(iv)(f), on the face of it, is applicable only to suits for accounts; yet we find

for all the clauses of Section 7(iv) that the method of computing the value of the suit is:

According to the amount at which the relief sought is valued in the plaint or memorandum of appeal....

Thus the whole of Section 7(iv), although on the face of it applicable only to suits, yet gives the method of computing the value of appeals. The

only reason why the word ''appeal'' is found here is that reference is made to the plaint; and if no mention were made of the memorandum of

appeal, appeals as well as suits would have to be valued according to the amount at which the relief sought is valued in the plaint. In the other

clauses of Section 7 and in other sections no reference is made to the memorandum of appeal except where there is some necessary difference in

the method of valuing a suit and an appeal. There can be no doubt that all the High Courts have always taken it for granted that appeals are valued

in the same way as suits.

With regard to the question as to what mesne profits should be included in valuing an appeal, the cases quoted by the learned Government

Pleader have been of defendants who have appealed against decrees for possession with mesne profits. It is, necessary, to maintain a distinction

between an appeal by a plaintiff, who has had his suit dismissed, and that of an unsuccessful defendant. The latter has to rid himself of the decree

and therefore everything that has been granted to the plaintiff in the decree and against which he wishes to appeal must be the subject-matter of the

appeal, even though more has been given in the decree (by way of interest or ascertained, mesne profits, for example) than was due to the plaintiff

at the time of filing the suit. But the plaintiff who has had his suit dismissed is in fact told that he had no cause of action against the defendant at the

time of filing his suit and it is against this adverse finding that he has to appeal. After having his suit dismissed he goes to the appellate Court in the

same position as at the time of filing his suit. Even so long ago as Srinivasa Row Vs. Ramaswami Chetti and Another, , this distinction between the

positions of a defendant-appellant and a plaintiff-appellant was* considered so obvious as not to require discussion, and this distinction has always

since been maintained. The power of a Court to grant future mesne profits and future interest is an exception to the general rule that a plaintiff can

only sue on such cause of action as has arisen on the date of filing his suit and that the Court can give him no more. These provisions were clearly

made to prevent the constant litigation that would be necessary if persons unlawfully kept out of possession of their lands had to file suits every

three years for mesne profits that had accrued since the filing of the previous suit. Although, therefore, a plaintiff can ask in his plaint for future

mesne profits, no cause of action for these mesne profits has arisen and no Court-fee is payable on the part of his claim. If, therefore, the position

of a defeated plaintiff is the same when he files his appeal as it was at the time of filing his plaint, he would not have to pay Court-fee in appeal on

mesne profits that had accrued after the filing of his plaint. The decided cases have in fact gone further and held that even a defendant-appellant has

not to pay Court-fee on mesne profits that have not been ascertained. It is true that in In re Punya Nahako (1926) 52 M.L.J. 128 : ILR 50 Mad.

488 , Wallace, J., says:

...the applicant who seeks to be relieved from the payment of such mesne profits must pay Court-fee on such mesne profits up to the date of his

appeal memorandum.

But this case is now considered to be no longer good law. In Kandunni Nair Vs. Ittunni Raman Nair and Others, , for example, it was made

clear that unless past mesne profits had been exactly ascertained no Court-fee was payable on them. The Madras amendment to Section 11 of the

Court-Fees Act has provided that the Court may direct an enquiry as to future mesne profits and that a decree cannot be executed until Court-fee

is paid on those mesne profits. It would seem to follow from this that''until a decree is sought to be executed no party is bound to pay Court-fee on

those profits. The present case is an example of the complications and injustice that result where a party is made to pay Court-fee on future mesne

profits at the time of the appeal. As the refusal of a Court to grant future mesne profits does not operate as res judicata the defeated party can

again claim future mesne profits; and if he is compelled to pay Court-fee in the first instance he would have to pay it again when he instituted a fresh

suit. That is what has happened with the present petitioner, who has had his claim for future mesne profits negatived both in the trial Court and in

this Court and who will be free to bring a fresh suit for these profits.

Although we are of opinion that there was no need for the petitioner to have paid Court-fee on his memo, of cross-objections claiming mesne

profits, we regret that we cannot order refund of the Court-fee paid. Mr. Venkatarama Sastri has quoted to us many cases relating to Section 12

of the Court-Fees Act to show that even where the statute says that the decision of the Appellate Court shall be final, all the High Courts have

nevertheless been willing to reopen the question where they considered that the decision of a Subordinate Court had been erroneous. It is

unnecessary to refer to the cases quoted by Mr. Venkatarama Sastri because the learned Government Pleader does not deny that u/s 12 High

Courts have been prepared to interfere; but we cannot accept Mr. Venkatarama Sastri''s argument that the word ''final'' used in Sections 5 and 12

of the Act does not mean ''final'' in the ordinary sense of the word, as being conclusive between the parties, but as conferring a mere temporary

finality to any contentions that parties may raise during the preliminary proceedings of getting the appeal filed. We find no justification for this

contention in any of the cases quoted to us and Mr. Venkatarama Sastri has not attempted to support this argument from any reported cases. His

argument seems to be that if a final decision u/s 12 can be interfered with by the High Court, it cannot really be final and that the explanation of the

word ''final'' given by him is the only reasonable one. We would, however, explain the interference of the High Courts with orders passed u/s 12 as

the exercise of the revisional jurisdiction given to the High Court to correct the errors of subordinate Courts a power which has not been taken

away by any provisions of the Court-Fees Act. Section 5, however, applies to proceedings in the High Court itself, where a question of revision

would not arise. All Courts have an inherent right to correct mistakes made through inadvertence, but an error based upon an interpretation of the

past practice of the Court and upon an interpretation of the law cannot be considered to be an inadvertence. There is no reason therefore why the

natural interpretation of Section 5, namely, that the decision of the Taxing Officer shall be final except when in his opinion the matter is of such

importance that it should be referred to the Chief Judge of the Court for his final decision, should not be accepted. That the decision of the Taxing

Officer is final and binding on all parties was laid down in Ranga Pai v. Baba ILR (1897) 20 Mad. 398. The matter was made clearer in Kasturi

Chetti v. Deputy Collector, Bellary ILR (1898) 21 Mad. 269, where it was pointed out that if the word ''final'' in Section 5 is not final in the

ordinary sense of the word, neither is the decision of the Judge to whom the matter is referred by the Taxing Officer, final; and no finality can be

reached at all. In Kandunni Nair Vs. Ittunni Raman Nair and Others, , the question was precisely the same as in Kasturi Chetti v. Deputy

Collector, Bellary ILR (1898) 21 Mad. 269, the earlier case being followed and approved. Neither in Kasturi Chetti v. Deputy Collector, Bellary

ILR (1898) 21 Mad. 269, nor in Kandunni Nair Vs. Ittunni Raman Nair and Others, , was any doubt thrown upon the accuracy of the law laid

down in Ranga Pai v. Baba ILR (1897) 20 Mad. 398, that the decision of the Taxing Officer was final and binding, not only on the party who had

disputed the correctness of the taxation, but also on the respondent who was no party to it. No case has been quoted to us in which this well-

settled interpretation of Section 5 has been even doubted. We must therefore hold that although the decision of the Taxing Officer in this case was

wrong it is nevertheless binding on the petitioner.

The petition is therefore dismissed. There will be no order as to costs.