Lassi Ganai vs Mohd. Allavi and Others

Shamiri, J.—This is a revision application directed against an order of the Senior Subordinate Judge, Kashmir, by which the memorandum of

appeal filed by the applicant before him against a decree and judgment of the Munsiff, Anantnag, dismissing the applicant's suit for specific

performance of an agreement to sell 12 kanals of land comprised in Khewat No. 49 in village Mela Awara, Tehsil Kulgam, and for recovery of

possession of the same, had been returned to him for presentation to the proper Court after making good the deficiency in the court-fee.

The Plaintiff applicant had valued his suit for purposes of court-fee u/s 7(v)(b), Court-fees Act, at eight times the land revenue at which the land

was assessed, namely Rs. 45/-, and at fifty times the land revenue, namely Rs; 281/4/-, for purposes of jurisdiction under the rules made under the

Suits Valuation Act.

Before the trial Court an objection was raised as to the insufficiency of court-fee. The trial Court, however, overruled the objection. Eventually the

Plaintiff applicant's suit was dismissed on merits.

On appeal the Defendant non-applicant again raised the question of court-fee and after hearing the parties the learned Senior Subordinate Judge

came to the conclusion that as the suit was one for specific performance of contract of sale it fell u/s 7(x)(a), Court-fees Act, by which court-fee is

payable according to the amount of the consideration which was Rs. 600/- in this case and not u/s 7(v)(b) of that Act.

He further held that as u/s 8, Suits Valuation Act, the value determinable for the computation of court-fees and the value for purposes of

jurisdiction is the same, the value for purposes of jurisdiction in this suit was also Rs. 600/- and as that Court could hear appeals from the Court of

a Munsiff only where the value of original suit, in which a decree or order was made, did not exceed Rs. 500/- it had no jurisdiction to toy the

appeal and, therefore, returned it for presentation to the competent Court.

The learned Counsel for the applicant has strongly contended that the order made by the Senior Subordinate Judge was not correct and that the

forum of appeal is determined by the value of the original suit as set out in the plaint and not by an order of the lower appellate Court by which

category of the suit had been changed for the purposes of court-fees.

It was also argued that the additional court-fee could not be demanded by the lower appellate Court u/s 12(ii), Court-fees Act. It is true that the

Senior Subordinate Judge has made a reference to Section 12, Court-fees Act, in his order and there is a general consensus of opinion that the

question under what category a suit or appeal falls for purposes of court-fee does not come within the purview of this section. But the non-

applicability of this section does not mean that an appellate Court cannot decide the question under what particular provision of the Court-fees Act

a suit falls and cannot demand additional court-fee if, as a result of the change of the category of a suit, additional fee becomes necessary.

The learned Counsel for the applicant had to concede this point in the end. The learned Counsel despite conceding this position urged that the

value of the suit for purposes of jurisdiction in appeal could not be automatically changed and the only proper order that the Senior Subordinate

Judge could have made was to remand the case to the trial Court with the observation that the Plaintiff applicant should be asked to amend his

plaint in view of the change in the category of the suit for purposes of court-fee.

The learned Counsel for the applicant also conceded that the case actually came within the ambit of Section 7(x) (a), Court-fees Act, and not u/s

7(v)(b) thereof. But this he contended did not change the forum of appeal which was fixed under the Civil Courts Act. For this purpose the learned

Counsel for the applicant placed reliance on- Seth Tara Chand Vs. Collector of Aligarh in charge of Estate of Raja Kishori Raman Singh, ;-

Harihar Das Chowdhury Vs. Raj Kumar Mukherjee and Others, ;- The Public Prosecutor Vs. K. Jacob Nadar, ;- Kandhai Mahton and Another

Vs. Prasad Mahton and Another, and-'Gangaram v. L. Madan Lal Kapur', AIR 1953 J&K 13

In- Seth Tara Chand Vs. Collector of Aligarh in charge of Estate of Raja Kishori Raman Singh, ', it appears that objection as to the improper

valuation of the suit had not been at all taken in the trial Court. Moreover the case did not come u/s 8, Suits Valuation Act, where the value for

purposes of court-fee and for purposes of jurisdiction is the same, but it came u/s 9, Suits Valuation Act, and the-value for purposes of jurisdiction

was to be determined under the rules made under that section. This case is, therefore, clearly distinguishable from the present one where the value

for purposes both of court-fee and jurisdiction is the same under the Statute.

Harihar Das Chowdhury Vs. Raj Kumar Mukherjee and Others, ' is equally distinguishable. There the Defendant did not challenge the averment

made in the plaint and the trial proceeded on the assumption that the valuation made by the Plaintiff was correct. The observation in this case,

namely, the Legislature did not intend that the expression ""the value of the original suit"" in Section 21 means the real value of the subject-matter of

the original suit, does not help the applicant very much because what is added to this observation is

Before the appellate stage is reached, the suit must already have been tried and the value of the suit fixed either by agreement of parties or on

adjudication by the Court.

In the present case we see that the objection regarding court-fee was taken in the trial Court which was overruled and the value of the suit was

then fixed by the lower appellate Court for purposes of court-fee and this adjudication ipso facto changed the value of the suit for purposes of

jurisdiction u/s 8, Suits Valuation Act.

The Public Prosecutor Vs. K. Jacob Nadar, ' and- Kandhai Mahton and Another Vs. Prasad Mahton and Another, ' are also not very helpful to

the applicant.

AIR 1953 J&K 13 also does not help the applicant. All that it says is that for determining the appellate forum in account suits, wherein the Plaintiff

has the right to value his suit tentatively, the appellate forum will be determined not by the amount found due to the Plaintiff or the Defendant, but

by the value which the Plaintiff puts on the subject-matter of his suit in the plaint. This has very little to do with the facts of the present case.

On the other hand the learned Counsel for the Defendant non-applicant has been able to lay his hands on two Patna and Lahore authorities

which are directly in point.

In- Mt. Ladli Begum Vs. Ram Das and Others, , it was held that where a suit was dismissed by a subordinate Judge and on appeal to the District

Judge he differed from the Sub-Judge as to the value of the properties and returned the appeal to be presented to the proper Court, the District

Judge had acted correctly and was competent to pass the order which he did.

'Shiv Dial v. Shiv Ramdas', AIR 1928 Lah 635 is applicable on all fours to this case. This was a case for specific performance of contract for sale

of land. In the trial Court the Plaintiff had valued the suit for purposes of court-fee at Rs. 3/8/- and for purposes of jurisdiction at Rs. 10/-. On an

objection being taken by the Defendant as to the valuation of the suit the trial Court had held that the valuation by the Plaintiff was correct.

Eventually the trial Court had dismissed the suit on merits.

The District Judge on appeal held that the proper value for purposes of court-fee and jurisdiction should have been Rs. 22,300/-, that is, the price

agreed to be paid for the land and that he had no jurisdiction to hear the appeal according to such valuation and, therefore, he returned the

memorandum of appeal for presentation to the proper Court. In appeal before the Lahore High Court, which was treated as a revision petition, it

was contended-just as it had been done before us- that the District Judge had no jurisdiction to decide the question of valuation for purposes of

jurisdiction and that he could only decide the question of valuation for purposes of court-fee.

This argument was overruled and it was held that as u/s 8, Suite Valuation Act, value for purposes of court-fee and jurisdiction was the same, the

District Judge was right in deciding whether he had jurisdiction to hear the appeal and in doing so he had necessarily to decide valuation both for

purposes of court-fee and jurisdiction. We find ourself in complete agreement with the ratio decidendi of this case.

In the result we find no force in this revision application and it is hereby dismissed with costs.