Kuldip Sahay and Others vs Harihar Prasad Jha and Others

Jwala Prasad, J.—This is a reference to me as a Taxing Judge under the Court-Fees Act.

The point raised is not free from difficulty and I was inclined to refer it to a larger Bench. I, however, understand from the decision of the learned Chief Justice dated the 9th February 1918, following the case of Khachera v. Kharag Singh [1910] 33 All. 20 and also ascertained from the learned Chief Justice that there is no power to refer. Therefore, I must deal with the question myself.

The question for determination is: what Court-fee is payable upon the memorandum of appeal filed by the defendant. The reliefs in the plaint were for possession and accounts. The trial Court dismissed the suit for cancellation of the lease and recovery of khas possession, but it decreed the suit for accounts for 1322 and 1323. In its judgment the Court observed that the plaintiffs were not entitled to control or criticise the accounts. Against the decree the plaintiffs appealed to the Court below. The lower appellate Court modified the decree of the trial Court by giving to the plaintiffs a right to examine and criticise the accounts. The defendants have appealed to this Court against this part of the decree of the Court below.

The plaintiffs valued the relief as to accounts at Rs. 1,159-9-6. This was the valuation also put in the memorandum of appeal filed by the plaintiffs in the Court below. The plaintiffs paid a Court-fee of Rs. 85 in both the Courts below.

The defendants in the appeal in this Court paid a Court-fee of Rs. 10 only. Upon the objection by the Stamp Reporter it is now conceded by the appellants that they have to pay an ad valorem Court-fee, but they want to amend the valuation of the appeal by fixing Rs. 200 instead of Rs. 1,159 odd, the valuation given in the plaint and in the memorandum of appeal filed in the Court below by the plaintiffs. The question is whether the appellants can be allowed to put their own valuation upon the relief sought in the memorandum of appeal.

The appellants rely upon Section 7, Clause (4), sub-clause (f) of the Court-Fees Act which says

In suits for accounts

the amount of fee payable is

according to the amount at which the relief sought is valued in the plaint or memorandum of appeal," and "in all such suits the plaintiff shall state the amount at which he values the relief sought.

I have carefully considered the report of the Stamp Reporter and that of the Taxing Officer and the authorities referred to.

Barring the decisions upon suits for mesne-profits and accounts based on partnership, etc., two cases appear to be nearer the case in hand: Dhupati Srinivasacharlu v. A. Pevindevamma [1915] 39 Mad. 725 Kanhaiya Lal v. Seth Ram Sarup 1922 All. 228. The former is a Full Bench decision of the Madras High Court. In that case the plaintiff had obtained a preliminary decree for accounts. The defendant appealed against that decree and it was held that the defendant was bound by the valuation in the plaint and was not at liberty to make a fresh valuation for the purpose of his appeal. No reason has been assigned in that case, and in fact the judgment does not discuss the point. Wallis, C.J. merely says--"We are not prepared to differ from the decisions in Samia Mavali v. Minammal [1899] 23 Mad. 490 and Bunioari Lal v. Sheo Shankar Misser 13 C.W.N. 815". The former is a case of a suit Drought for declaring a sale deed invalid on certain grounds stated by the plaintiff. The value of the suit was Rs. 2,000 the amount mentioned in the deed. The plaintiff obtained a decree and the defendants preferred a second appeal to the High Court. There the value of the relief was well known and, therefore, the defendant was not allowed to modify the value given in the plaint. The latter is a case of recovery of possession with mesne-profits. The plaintiff obtained a decree for possession and for mesne-profits claimed anterior to the suit. The defendant in these circumstances was not allowed to modify the valuation given by the plaintiff. These cases have no application to the present one.

In the Allahabad High Court Mr. Piggoti in the case of Kanhaiya Lal v. Seth Ram Sarup 1922 All. 228 considered the aforesaid decision of the Madras High Court and in a very elaborate judgment allowed the defendant in an appeal against a preliminary decree to put his own valuation on the memorandum of appeal, holding that he was not bound by the valuation oft the plaintiff in his plaint.

The two decisions are not necessarily contradictory. The Madras High Court decision is against a preliminary decree for accounts. In the Allahabad case the defendant did not deny his liability but took exception only to the form of the decree and contended that it ought to have contained a specification of the period for which liability to render accounts should extend and an adjudication upon the question which (the defendant had raised as to the period of limitation applicable to a portion of the plaintiff''s claim.

In the present case the defendant does not dispute the liability to render accounts, but he wants certain restriction to be placed upon the right of the plaintiff to take accounts from him. It is difficult to assess the relief sought by him in the appeal. His relief in the appeal is not the same as that of the plaintiff in the plaint. The plaintiff''s relief was a simple one for accounts and he must have known the value of that relief and, therefore, he was bound to mention it in his plaint for the purpose of levying Court-fee. The defendant''s relief, on the other hand, is such as is not capable of a correct, estimate. He is not bound by the valuation put by the plaintiff in his plaint. He is, therefore, at liberty to fix his own valuation.

The provision in the Court-Fees Act] referred to above Section 7, Clause 4(f), leaves the appellants free to value the relief sought in the appeal and he is bound to pay Court-fee according to the amount at which he values the relief sought. The principle that a party will not be allowed to value his relief arbitrarily does not arise in the present case in view of the very nature of the relief sought in the appeal by the defendant.

Therefore, I hold that the defendant appellant is entitled to value the relief at Rs. 200 which he seeks to do and the Court-fee payable will be on that valuation.