Madana Mohana Naiko vs Krupasindhu Naiko (dead) and Others

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

The question of law-referred to the Full Bench for determination is interesting and not covered by authority. When the appeal came to be heard

by the referring Judges, it was found that the court-fee paid on the memorandum of appeal was deficient and an order was thereupon made

directing that the proper amount should be paid. So far the case presented no difficulty, but the question arose whether the learned Judges could

require the appellant to pay the proper court-fee in the Court of First Instance. The doubt that has arisen, which has led to this reference, may be

expressed as follows. Section 12 of the Court-Fees Act runs thus:

(i) Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or

memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be

final as between the parties to the suit.

(ii) But whenever any such suit comes before a Court of Appeal, reference or revision, if such Court considers that the said question has been

wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would

have been payable had the question been rightly decided, and the provisions of Section 10, paragraph 11, shall apply.

It seems to have been argued, that in what is termed ''valuation'' two different things are involved, first, the fundamental question of category and

secondly, the question of appraisement, and, that it has been held in numerous decisions that the finality contemplated in the first sub-section,

attaches to a decision relating to appraisement as distinguished from category. The next step in the argument seems to be, that the words ""the said

question"" in the second part must receive the same interpretation as the expression ""every question relating to valuation"" in the first part and if that

be so, when the decision relates to category, it does not attract the operation of the second part and the appellate Court cannot therefore make an

order directing the deficiency to be made good. This contention appears to us to involve a fallacy. The words ""every question"" are of a

comprehensive nature and there seems to be no reason why they should be construed in the restrictive sense suggested; indeed, some at any rate

of the decided cases show that the view that a decision relating to category is not final, is not based upon any such limited construction. True, that

in Annamalai Chetti v. Lieut.-Col. J.G. Cloete I.L.R.(1881) 4 Mad. 204, the learned Judges place upon the words the narrow meaning. They

observe:

In our judgment the terms of the 12th section ought not to receive a larger interpretation than they fairly admit of. They do not declare the decision

of the Court in which the plaint or appeal is filed final on all questions which may arise respecting the court-fee but on every question relating to

valuation for the purpose of determining the amount of the court-fee.

It is difficult to see, as observed in Muhammad Sadik v. Muhammad Jan ILR (1888) 11 All. 91 , how a Court could determine the amount

without deciding the question as to the relief sought that is the category to which a particular suit belongs) and how yet the relief sought is to be

deemed as not comprised in the question relating to the valuation (at p. 93). On the other hand, in a later case on the point, namely, Champaden

Vittil Lakshmi Amma Vs. Kunnummal Pukkott Thottathil Janamajayan Nambiar and Others, , the learned Judges proceeded upon the footing that

the word ''valuation'' comprises both the factors that is the category as well as the computation of value. Having said so, they felt constrained to

hold in view of certain provisions of the Civil Procedure Code, that the question of valuation should be viewed in two aspects for the purpose of

deciding when a decision as to valuation is final and when appealable. They ultimately decided that when the mistake made by the Judge relates to

the category, an appeal lies and not when it relates to the computation. Whether the 1877 Code, which was then under consideration, warrants this

conclusion, is a matter open to doubt, but it is not at present within our province to express any final opinion on that point. The difficulty felt seems

to have been, as to how to reconcile the provisions of the Code relating to appealability with Section 12 of the Court-Fees Act. Now let us

examine the provisions of the present Civil Procedure Code. Order 7, Rule. 11 shows that the question of the deficient court-fee can be viewed

not only in two (as assumed in Champaden Vittil Lakshmi Amma Vs. Kunnummal Pukkott Thottathil Janamajayan Nambiar and Others, , but in

three aspects. Clause (b) refers to the case where the relief claimed is under-valued. This comprises both the category and the computation. Under

Clause (c) the mistake relates neither to category nor to appraisement; the valuation in both these aspects having been properly made, the plaint is

nevertheless written upon an insufficiently stamped paper. Rule 11 provides that the plaint shall be rejected when the plaintiff being required to

make good the deficiency fails to do so. The rejection of a plaint u/s 2 amounts to a decree and is appealable u/s 96. Were the matter res Integra,

it does not seem to us impossible to reconcile these provisions with Section 12 of the Court-Fees Act, giving full effect to both the statutes. The

present trend of decisions seems to be that where plaint is rejected under Clause (b) of Order 7, Rule 11, the order rejecting the plaint is not

appealable when the order is based on a question of valuation pure and simple; but if the order involves a decision, of the category to which a suit

belongs, the order is appealable. As we have said, this view is the result, of the endeavour to reconcile the Code with the Court-Fees Act, but is it

really necessary to take such a view? One might suggest that if the decision u/s 12 of the Court-Fees Act leads to a rejection of the plaint under the

Code, then such a rejection, amounting as it does to a decree, ought in all cases to be appealable; but where the decision does not lead to rejection

of the plaint, there is no reason why finality should not in every case attach to that decision. In this way, as we have observed, both the statutes can

be reconciled. To explain what we mean, let us take this example. Supposing the Court decides that the proper court-fee has been paid, that

decision should be final as between the parties and it should not be open to the defendant to question it. Again, let us suppose that the Court

decides that the court-fee paid is deficient and requires the plaintiff to make good the deficiency and he complies with that order; here no question

of the rejection of plaint can arise and the decision as between the parties ought to be final. As we have said, however, this is not a matter which

directly arises under the present reference, but the discussion is relevant in this way. It shows that the view taken in the numerous cases as to

appealability does not necessarily rest upon the restrictive construction, suggested of the opening words of Section 12. We have already referred in

this connection to Champaden Vittil Lakshmi Amma Vs. Kunnummal Pukkott Thottathil Janamajayan Nambiar and Others, The only ground urged

therefore disappearing, we can see no ground which would justify us in giving to the words ""the said question"" in the second part the limited

meaning contended for. Though the question has been pointedly raised here for the first time, we may observe that our attention has been drawn to

numerous cases where it was assumed, without discussion, that the High Court acting u/s 12(ii) has power to require the plaintiff to bring the

additional fee payable in the lower Court even where its decision was as to category as distinguished from computation.

Our answer to the question is therefore in the affirmative.