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Judgment
Chandra Reddi, J.—This application is filed under S. 152 and O. 6, R. 17, CPC for amendment of the plaint and the memorandum of appeal sought to be filed in this Court in the following circumstances. The petitioner brought a suit in the Court of the Subordinate Judge of Ellore for partition of the joint family properties between him and the respondents herein and for separate possession of half the share to be allotted to him. The suit as originally filed was valued under S. 17-B of Schedule II of the Court Fees Act and a fixed court-fee of Rs. 100 was paid on the basis of the plaintiff being in joint possession of the suit properties along with the defendants. The suit properties were valued at Rs. 11,603 for the purpose of jurisdiction. On an objection taken as regards the court-fee, the trial Court decided as a preliminary issue that the suit should not be regarded as one following under S. 17-B of the second schedule but should be valued under S. 7 (5) of the Court Fees Act on the ground that the allegations in the plaint did not disclose that the plaintiff was in joint possession along with the defendants. In that view of the matter the trial Court directed the plaintiff to value the suit under S. 7 (5) and pay the deficit court-fees on that basis. The matter was taken by the plaintiff to this Court in C R. P. No. 1637 of 1948, and this Court by its order dated 26th November, 1948 upheld the correctness of the finding of the trial Court. When the matter went back to the trial Court, the plaintiff applied for amending the plaint valuation so as to reduce it to Rs. 4278 to bring it into conformity with the order of the trial Court and he was allowed to do so. The suit was thereafter heard and decided on the merits. The plaintiff being aggrieved by the decision of the trial Court has sought to file an appeal in this Court against it. On an objection taken by the office that the appeal does not lie to this Court but to the District Court, the present petition is filed to restore the original valuation by way of amendment. At the outset it must be mentioned that when Mr. Narasaraju, the learned Counsel for the petitioner was confronted with the difficulty of applying the provisions of either S. 152 or O. 6, R. 17, he conceded that the present petition cannot be governed either by S. 152 or O. 6, R. 17. Obviously, the provisions of S. 152 cannot apply to this petition because that section deals only with amendment of decrees, while, O. 6, R. 17 deals with amendment of pleadings and can have no bearing on the question of amending the valuation now. He had therefore to fall back upon S. 151 CPC and invoke the inherent jurisdiction of this Court to grant him leave to restore the original valuation.
The first contention raised by Mr. Narasaraju in support of this petition is that though the valuation was revised in obedience to the order of the Court and court-fee paid on the basis of the revised valuation still it is the original valuation that determines the forum of appeal, and it is the market value of the property that should govern the jurisdictional value and that his client is prepared to pay the ad valorem court-fee on that footing both in the lower Court as well as in this Court. I find it difficult to accept this contention. Under S. 14 of the Madras Civil Courts Act, in suits for recovery of immoveable property, the value of the suit for purposes of jurisdiction is the same as that adopted for purposes of Court-fee provided by S. 7 of the Court Fees Act. So it cannot be disputed that under S. 14 of the Madras Civil Courts Act we cannot adopt a valuation for purposes of jurisdiction different from that adopted for the purpose of court-fees In this context the following passage in the referring judgment in Kannayya Chetti v. Venkata Narasayya 40 Mad. 1=5 L.W. 580 is apposite.
The mistake lies in supposing that the amount or value of the subject-matter of the suit is its real or market value. It is the value fixed according to the mode prescribed by the statute, though in the absence of any statutory provisions in S. 14 of the Civil Courts Act or the Suits Valuation Act, the real or the market value of the. subject will have to be ascertained as in the case, for instance, of appeals to His Majesty in Council.
Reference may also be made to Gadiraju Srirama Sarma and Others Vs. Gadiraju Venkatappa and Others, ., where it was laid down in a suit for partition and possession, the value calculated for purposes of court fee under S. 7 (v) (b) of the Court Fees Act is also the jurisdictional value.
Under S. 13 of the Court Fees Act an appeal can lie only to the District Court against the decree of the Subordinate Judge when the subject-matter of the suit does not exceed Rs. 5,000. So the appeal sought to be filed cannot be received in this Court unless it is shown that its value exceeds Rs. 5000.
The next question to be considered is whether in this case the value exceeds Rs. 5,000. It is not disputed that the valuation of the suit as finally amended by the plaintiff is below Rs. 5,000 That the forum of appeal is determined with reference to the valuation of the suit does not admit of any doubt. It is not also seriously argued by Mr. Narasaraju that the value of the subject-matter of the suit is not the value as it was finally fixed. No doubt ordinarily the value of the subject matter of the suit is its value at the institution of the suit. But when that value is revised it is the revised valuation that should be treated to be the value of the suit. So for the purpose of deciding the forum of the appeal, we have to take into consideration only the valuation as finally adopted in the plaint and not what was originally mentioned. In The Public Prosecutor Vs. Verajlal Sheth, it was held by Happell, J. that the value of the suit is the value mentioned by the plaintiff in his plaint until that valuation is amended.
However Mr. Narasaraju urges that while ordinarily the final valuation would be accepted as the correct basis for deciding the forum of the appeal, the original value should still be treated as the value of the suit for purposes of the appeal in a case where the amended valuation was adopted by a party in obedience to the orders of a Court and the correctness of which is sought to be challenged in an appeal filed against the decree. According to him, even though the finding of the trial Court on the question of court-fee was confirmed by this Court in revision, it is open to him to re-agitate that matter in the appeal that is finally filed against the decree and therefore the original value fixed by him should be regarded as the suit valuation or at any rate the original valuation should be restored on payment of the difference of the court-fee. In support of this argument he relied upon two decisions of this Court in Jalaldeen Marakayar v. Vijayasami 39 Mad. 447 and in Vasudeva v. Madhava 16 Mad. 326. What was laid down in Jalaldeen Marakayar v. Vijayasami 39 Mad. 447 was that in a suit for redemption of mortgage when the amount of the principal debt was below Rs. 5,000 and the court-fee was paid by the plaintiff on that amount, it was that valuation that decided the forum of the appeal despite the fact that the plaintiff paid court-fee on the total amount of the redemption exceeding Rs. 5,000 in obedience to the orders of the Subordinate Judge which was found to be erroneous. In Vasudeva v. Madhava 16 Mad. 326 the District Munsif returned the plaint in a redemption suit on the ground that the value of the whole property to be redeemed exceeded his pecuniary jurisdiction although the plaintiff therein claimed only a one-fourth share therein which was far below the pecuniary limits of the District Munsif. The plaintiff accepted the valuation and presented the plaint in the Court of the Subordinate Judge paying the deficit court-fee. When ultimately an appeal was filed by him to the High Court against the decree of the Subordinate Judge, this Court held that the appeal lay none-the-less to the District Court as the real value of the subject-matter of the suit was far below Rs. 5,000 and the order of the Munsif returning the plaint on the ground of want of pecuniary jurisdiction was erroneous.
I do not think these two decisions are of much assistance in this case. Whatever might be the case, where it is ultimately found that an order of a trial Court calling upon a party to revise the plaint valuation is erroneous and the revised valuation is not correct, so long as the amended valuation is not varied, we must proceed on the basis that, that is the value of the suit and forms the basis of the appeal also. The mere fact that the petitioner has taken some grounds attacking the finding as regards the category of suits under the Court Fees Act to which the suit belongs, will not be a ground for proceeding on the hypothesis that the order of the Court on that point is erroneous and that it is the value as originally mentioned in the plaint that governs the forum of the appeal. Merely because the appellant proposes to canvass the correctness of the finding on a particular issue, it cannot be assumed that the decision of the Court on that issue is wrong, and permit the appellant to choose his forum for the appeal. If the contention of the plaintiff were to be accepted, while he could file an appeal against the decree of the trial Court in the High Court, the defendant if he had failed in the suit and had to file an appeal he could do so only in the District Court. Could it be said that as against the same judgment while one party could file an appeal to the District Court, the other party could file the appeal in the High Court merely because he chooses to take some ground attacking the finding on a particular issue. The result of allowing the plaintiff to amend the valuation now will be to shift the jurisdiction from one Court to another at the option of the plaintiff as pointed out in Kannayya Chetti v. Venkata Narasayya 40 Mad. 1=5 L.W. 580. For all these reasons it looks to me that the petitioner cannot be allowed either to treat the original value as the valuation of the suit for filing this appeal or to restore that valuation by way of an amendment. There are therefore no grounds to allow the amendment sought by the petitioner. I am of opinion that the appeal cannot be entertained in this Court and it has to be filed only in the District Court. In this view of the matter it is not necessary for me to consider the contention raised on behalf of the respondent based on S. 12 of the Court Fees Act. In these circumstances, this petition is dismissed, but I make no order as to costs. The Memorandum of Appeal will be returned to the petitioner for presenting it to the proper Court.