Mahendra Singh Pratap Singh vs The Raj Kumar Mills Ltd. and Another

Chaturvedi, J.—This appeal had come in the first instance before a Single Judge of this Court who passed an order that this be put up before a Division Bench. This was not a proper order of reference, but considering that it involved several important points of law, under verbal orders of the officiating Chief Justice, it was heard by us. This appeal is directed against a preliminary decree in a suit for rendition of accounts of a dissolved partnership.

The Plaintiff had valued the suit at Rs. 24,000/-. While filing this appeal the Defendant-Appellant made fresh valuation for the purposes of the appeal at Rs. 5,000/- only. An objection has been taken by the Respondents that the Defendant in this appeal is bound by the valuation of the plant of the trial Court.

The main question is: whether in a suit coming under Clause (iv)(f) of Section 4 of Indore Court-fees Act (Which corresponds to Section 7(iv)(f) of the Indian Court-fees Act), when the Plaintiff has Valued the relief prayed for and the Plaintiff has obtained a preliminary decree for accounts and the Defendant appeals against the decree, the Defendant is bound by the valuation of the plaint of the trial Court or is at liberty to make a fresh valuation for the purposes of the appeal?

There is great divergence of opinion on this point and the following account at page 224 of Chitale''s Commentaries on the Court-fees Act (1949 Edition) succinctly summarizes the conflict of opinions on this point:

The view of the Lahore and the Madras High Courts and the Sindh Judicial Commissioner''s Court is that the Defendant is bound to accept the Plaintiff''s valuation of the suit for the purpose of the appeal and pay Court-fee accordingly. The contrary view has been taken by the High Courts of Allahabad, Bombay, Patna and Rangoon, which have held that the Defendant is entitled to put his own valuation on the appeal for the purpose of Court-fee in such cases.

The decisions of the Nagpur High Court are conflicting. The two views may be explained thus: According to what may be termed the Madras view, the words in the paragraph "in all such suits the Plaintiff shall state the amount at which he values the relief sought" apply also to s appeals and indicate that the right of the Appellant to-fix his own valuation of the appeal-applies only to cases where the. Plaintiff is the Appellant.

In cases where the Defendant is the Appellant, he is bound by the value fixed by the Plaintiff in the trial Court. According to the other view, which may be called the Allahabad view, the words above referred to have not the effect of curtailing the force of the words "according to the amount at which the relief sought is valued in the plaint or the memo of appeal" which are general and are not confined to an appeal by the Plaintiff.

In order to understand clearly the relief sought for in the plaint and the relief sought for in the appeal it seems proper to give the facts of the case. The Plaintiffs used to take contracts for supply of tents to the Government of India War Department during the period 1940 to 1945. Formerly the Plaintiffs had formed a partnership with the father of Defendant 1 and Defendant 12 for manufacturing and supplying tents to the Government of India War Department. In April 1941 the father of Defendant 1 retired and new partnership was formed between the Plaintiffs and Defendants 1 and 2 in which the Plaintiffs and Defendant 2 each had 6 1/2 annas share in a rupee and Defendant 1 had 3 annas share.

It was alleged that the partnership was in the first instance for one year and it was then extended upto the end of 1945. The partnership accounts were settled upto 31-21-1944 but accounts for the period between December 1944 to the end of 1945, as also the final account of the partnership could not be settled. It was further said that the cause of action accrued to the Plaintiffs in December 1945 when the partnership was dissolved. Plaintiffs tentatively valued the claims at Rs. 24,000/-.

Defendant 2 admitted the claim but the Appellant-Defendant 1 resisted the claim on several grounds. He admitted his partnership with Defendant 1 alone, but not with Defendant 2. He further admitted that the arrangement was initially agreed to be for one year, but this was later extended upto 31-3-1945. Thereafter he was a partner on the previous terms. From 1st April to the end of December 1945, there was an agreement that the Defendant would receive 3 percent commission on the value of the orders of Government of India carried out during this period.

It was stated that the accounts were final and completely adjusted upto 31-12-1944; but no accounts had been made in respect of the period between 1-1-1945 to 31-3-1945. The Defendant states that he was entitled to 3 percent commission on the value of the order of Government of lndia carried out during this period.

In Para 5 of the written statement it was averred that "the allegation that the Plaintiff is entitled to Rs. 24,000/- as estimated dues, is wrong and is intended for some ulterior purposes. The Plaintiffs having inflated their estimate paid high Court-fees for which the Defendant-cannot be held responsible.

Defendant 1, therefore, prayed that he be allowed his profit for the period between 1-1-1945 to 31-3-1945 and thereafter, his commission at 3 percent till December 1945.

On these pleadings the following issues were framed:

Whether the contract in suit was extended upto the end of December 1945?

Whether from 1-4-1945, Defendant 1 was employed and worked on the basis that ho would charge 3 percent commission on the orders of Government of India executed by the tent factory in suit?

Whether there was a partnership between the Plaintiff and Defendant 2?

The trial Court decided the suit in favour of the Plaintiffs holding that there was a partnership between the Plaintiffs and Defendants 1 and 2; that the Plaintiffs and Defendant 2 each had a share of 6 1/2 annas in this partnership and Defendant 1 had 3 annas share: that the partnership on the previous terms continued till 31-12-1945; and that there was no agreement for 3 per cent commission being paid to Defendant 1 on the value of the orders of Government of India as claimed by him. The trial Court, therefore, passed a preliminary decree and appointed a Commissioner for taking the assets of the partnership in his possession.

The Appellant challenges this preliminary decree in this appeal on the ground that the Defendants 2 were not partners; that there was no extension of the agreement after March 1945; and that there was an agreement to allow Defendant 1 commission at 3 per cent on the value of the orders executed after 31-3-1945. Para No. 10 of the memo of appeal is in the following words:

That the Appellant contests the claim of Plaintiffs regarding accounts from 1-4-1945 to 31-12-1945 on old basis but puts forward a new basis for accounts and values this partial claim for account''s at Rs. 5,000/- as provided in Court-fees Act, Section 7(4)(f) and accordingly stamps for Rs. 343/12/- are annexed hereto.

It is, therefore, prayed that the judgment and decree of the lower Court be modified and decree for accounts be passed between Plaintiff and Defendant 1 from 1-4-1945 to 31-12-1945 on the basis of 3 percent commission on value of the orders executed.

From the facts narrated above it will be obvious that the questions to be determined in this appeal are the same which were raised before the trial Court. In other words, the relief claimed in appeal is co-extensive with what was claimed by the Plaintiffs in the plaint. The second thing that is important is that in the written statement itself, the Defendant had clearly taken the objection that the suit had been heavily over-valued and this would attract the remarks of James J. at page 400 in his dissenting note in ''Deojigoa v. Tricumji'' AIR 1935 Pat 396 (FB) (A), where his Lordship observed that.

the Plaintiff in a suit for accounts places a tentative valuation on his suit, roughly estimating the amount which he is likely to get as a result of his litigation; but it is obvious that if the Defendant considers that apart from the merits of the case, the suit has been heavily overvalued, he should take the objection at once. The Defendant is vitally interested in the matter, since the Court-fee paid on the plaint will form part of the costs which he himself will have to bear if the preliminary decree is given against him.

Much arguments were addressed to us on these observations and I think they have an important bearing on the case before us.

The main question, however, is about the interpretation of the words at the end of Section 7(iv)(f), Indian Court-fees Act (corresponding to Section 4(iv)(f) of Indore Court-fees Act) which reads as follows:

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

(iv) In suits-

(f) for accounts-

according to the amount at which the relief is valued in the plaint or memorandum of appeal:

In all such suits the Plaintiff shall state the amount at which he values the relief sought.

The main difficulty arises from the words "memorandum of appeal". These words do not appear in any other part of Section 7. These words take some of the High Courts to conclude that the valuation of what forms the subject of appeal either by the Plaintiff or by the Defendant, was decisiveof the matter regardless of the Plaintiff valuation of the subject-matter of the plaint for the purposes of Court-fee.

On the other hand emphasis is was laid on the last sentence in which the words "suit" and "the Plaintiff" appear and it was held that the valueation given by the Plaintiff alone in his plaint ought to determine the valuation for the purpose of Court-fee on appeal. There are certain observations of their Lordships of the Privy Council in ''Faizullah Khan v. Mauladad Khan AIR 1929 PC 147 (B), which were differently interpreted by various High Courts. There is no doubt that this appeal was filed by the Plaintiff and not by a Defendant.

The facts of that case were that a suit was brought by Faizullah Khan and Anr. for rendition of account wherein it was prayed that a decree for Rs. 3000/- or such other amount as may be found due be passed in favour of the Plaintiffs. The trial Court declared that Rs. 19,991 were due to Mauladad Defendant from the Plaintiffs and that nothing was due to the Plaintiffs from the Defendants. The Plaintiffs appealed against the decree praying for a reversal of the decree granted against them and for granting a decree in their favour for such amount as may be found due.

They valued their appeal at Rs. 19,991/- the amount which was declared to be due to Mauladad Khan and paid Court-fee on that amount. The Judicial Commissioner of N.W.F. Province heldrthat the Court-fee was payable at a sum of Rs. 19,991 plus Rs. 3,000/-. This decision was set aside by their Lordships of the Judicial Committee and it was observed:

Their Lordships are clearly of opinion that the memorandum of appeal in the present case did state in terms of the Act the amount at which the relief was sought. This determines the appeal.

It will be quite clear that their Lordships of the Judicial Committee put emphasis on the words "at which the relief sought is valued in the memorandum of appeal", occurring in Section 7(iv)(f) Court-fees Act. These words were interpreted to mean that the Appellant, whether Plaintiff or Defendant, can give some valuation and one cannot complain that the amount in the memorandum is not the proper amount. In ''C.K. Umar v. C.K. Ali Umar'' AIR 1931 Rang 146(FB) (C), Page, C.J. delivering the opinion of the Full Bench observed;

In my opinion ''Faizullah Khan''s ease (B)'', is conclusive upon the question that has been referred. In that case the estimated value of the relief sought out in the plaint differed from the .. value in the memorandum of the appeal filed by the Plaintiff but their Lordships held that the memorandum of appeal did state in erms of the Act, the amount at which the relief was sought. This determines the appeal.

In ''In re In Re: Dhanukodi Nayakkar and Others, , Anr. view of the Privy Council decision was taken. It was stated there in that ''Faizullah Khan''s case (B), only dealt with the case of a Plaintiff-Appellant and that Section 7 gives great freedom to Plaintiff-Appellant, but it does not give the same freedom to Defendant-Appellant.

Although in Sub-clause (f) of Clause (iv) of Section 7, the "memorandum of appeal" is included, the emphasis is on the "Plaintiff" and it was held that it is he who must value the relief. So a Defendant appealing from a preliminary decree for an account has ordinarily to stamp his memorandum according to the Plaintiff''s valuation. It was further observed:

In the course of the arguments which are to be found reported in ''AIR 1929 PC 147 (B)'', it was pointed out by Lord Tomlin that the scheme of the Act was that the Plaintiff should be allowed to value his own relief, and the decision proceeded on this basis. Their Lordships were not called upon to consider the case of a Defendant-Appellant and consequently their decision cannot be taken as a guide whether ''Srinivasacharlu v. A. Perindevamma'' AIR 1917 Mad 668 (FB) (E) or Chunni Lal and Others Vs. Sheo Charan Lal Lalman and Others should be followed.

Commenting upon these observations Seth J. in Ghalib Rasool and Another Vs. Mangu Lal and Another, '', stated:

It is unfortunate that the attention of the learned Chief Justice was not directed to the earlier portion of the observations of Lord Tomlin wherein his Lordship is reported to have observed:

In Section 7 the amount of fee is to be computed, in suits for accounts according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. If, therefore, the Appellant values the relief in the memorandum of appeal and pays the fee thereon, that is the amount of fee properly payable.

It would appear from the above quotation that his Lordship made no distinction between the Plaintiff-Appellant and a Defendant-Appellant and that His Lordship''s observations included all Appellants without any distinction such as has been made by the learned Chief Justice.

I may, however, point out here that I have not been able to find these observations either in ''56 Ind App 232'', or in 10 Lah. 737'', or in ''AIR 1929 P.C. 147 (B)''. But in all other reports of the High Courts, e.g. ''Malik Feroze Din v. Malik Mohd. Din AIR 1937 Lah 694 (H and I); ''Megh Raj v. Rupdhand Uttamchand AIR 1946 Lah 280 (FB) (J). AIR 1931 Rang 146 (FB) (C), these observations have, been quoted in extenso. Though the observations of Lord Tomlin deserve respectful consideration, yet I agree with the opinion of James J. in ''AIR 1935 Pat 396 (FB) (A)'' that a casual remark of Lord Tomlin, made in the course of arguments should not be treated as if it were a part of the considered judgment ultimately delivered by the Judicial Committee.

As for the decisions of the various High Courts to which out attention was invited during the arguments, the judgment of Sulaiman J. and of Boys J. in Chunni Lal and Others Vs. Sheo Charan Lal Lalman and Others '', may safely be taken to be a more reasonable view on the interpretation of Section 7(iv)(f), Court-fees Act.

In this decision Sulaiman J. (as he then was), observed that the amendments of the Court-fees Act have not kept pace with the amendments of the Code of Civil Procedure. In 1870, when the Court-fees Act was passed, Act No. 8 of 1859 (as amended by Act 7 of 1870) was in force.

In those days there was no such thing as a preliminary decree distinct and separate from a final decree. Thus altheugh in a suit disputes aright arise as regards the valuation, the matter, is bound to have been determined by the time a decree -came to be passed. Since then the CPC has undergone a marked change.

In some cases there can be a preliminary decree followed by a final decree and an appeal is allowed from a preliminary decree even before a final decree is passed and thus the true value of the subject-matter in dispute may remain unascertained while appeals from preliminary decrees are preferred.

The language of the old Court-fees Act is now to be applied to a state of things which could not have arisen in the same acute manner when the Act was passed. His Lordship then pointed out; that in cases coming u/s 7, Sub-clause (iv) the valuation made by the Plaintiff of the subject-matter in dispute is often an arbitrary one and particularly in a case falling under Sub-clause (iv)(f) the valuation is a tentative one, it not being known at the time what would be the exact amount found due to either party after the accounts are taken.

If under such circumstances the Plaintiff fixes a figure arbitrarily and at haphazard which he. considers'' may be found due on account being taken, there is no just ground why the Defendant, when appealing, should be tied down to this haphazard estimate when, on the face of it, the valuation is merely tentative. His Lordship then observed:

The present appeal falls u/s 7, Sub-section (iv) Clause (f), and therefore the amount of fee payable is to be computed according to the ''amount at which the relief sought is valued in the plaint or memorandum of appeal''. Taking the words literally, the Defendants have valued the relief which a they seek in their memorandum of appeal at Its. Rs. 550/-.

They can, therefore, be called upon to pay Court-fees on that amount only. The question remains whether there is anything else in this section which justifies a contrary conclusion.

The last words ''In all such suits the Plaintiff shall state the amount at which he values, the relief sought'' do not entitle us to import into the section words to the following effect'' and the amount stated by the Plaintiff shall be the amount...for purposes of memorandum of appeal.

It was then further stated:

It is sufficient to say that the Defendant can not be called upon to pay Court-fees on the amount of valuation given by the Plaintiff when the language of the section does not clearly so demand. The statute must bo construed in favour of the Defendant who is to pay the Court-fees.

lf the Legislature considers that the language, is defective, it is for the legislature and not the Court to cure the defect. The words must be interpreted as they stand in the Code.

There is nothing in the Pull Bench case reported in In Re: Dhanukodi Nayakkar and Others, '', which may be persuasive enough to convince us that the arguments of Sulaiman J. in (Thakur) Bilas Singh Vs. Emperor '', quoted above, are in any way fallacious.

The main thing that weighed in the ''Madras case ''(D)'', was the practice that had been prevailing Madras High Court since long, and, from japerusal of ''Mahomed Rahmoo v. Ibrahim Gangji,'' AIR 1927 Sind 100 (K), it appears that the view en by the Madras High Court had been consistently followed by the Court of Judicial Commissioner in Sindh.

In the five Judges Full Bench case in AIR 1946 Lah 280 (FB) (J) the main points advanced against the Allahabad view in the majority judgment) delivered by Abdur Rahman J. were only two.

The first was that a ''suit'' in the sentence at the end of Section 7(iv) Court-fees Act, must he held to cover the proceedings in all its stages, for, appeals are after all continuation of suits and arise out of them.

It was therefore observed that the use of the words ''In all such suits'' immediately following the words ''memorandum of appeal'' may legitimately be taken to include it as well.

The second point advanced was that the law is not logical always and in the absence of a clear provision to that effect, the Defendant cannot be given the same privilege as the Plaintiff. So this is all that could be said in support of the opposite view.

These two points were sufficiently controverted by the dissenting judgment of Teja Singh J. where it was mentioned that it is important to bear in mind that in all clauses of Section 7, other than cl (iv), mention is made only of ''suits''.

This indicates that in all cases coming within the scope of these clauses the rule for finding out the subject matter of dispute in an appeal is the same as in a suit. In none of these clauses, i.e., clauses other than Clause (iv), it is laid down that the value of the relief sought shall be stated either in the plaint or in the memorandum of appeal.

But a different method has been adopted with regard to Clause (iv) and an innovation was introduced therein by laying down that the amount at which the relief sought is valued should be stated in the plaint as well as the memorandum of appeal and it is on that value that Court-fee is to be paid.

To say that the right to value his relief at whatever figure he liked, was given only to the Plaintiff and that the Appellant, whether he be the Plaintiff or the Defendant, is bound by that valuation, would be tantamount to holding that the words ''memorandum of appeal'' mentioned in the clauses are superfluous and such an interpretation would offend against one of the fundamental principles of construction of statutes.

It will thus be seen that there is a very serious conflict of opinions as regards the interpretation of Section 7(iv) and the effect of the use of the words ''memorandum of appeal'' in the penultimate sentence of the said clause.

Considering that the Court-fees Act is a fiscal enactment and it is a well recognised principle of interpretation of statutes that a fiscal enactment should be construed strictly and whenever there is an ambiguity, it should be construed in favour of the subject and considering that the majority of the High Courts support the Allahabad view, which to me also appears to be a reasonable one, I am of opinion that a Defendant appealing against a preliminary decree in a suit for account is not bound to accept the tentative valuation of the Plaintiff but can put his own value on the appeal.

In the present case even in the written statement the Defendant had taken the objection that the suit had been heavily over-valued and that higher Court-fees had been paid for which the Defendant should not be held responsible. Under these circumstances I am not prepared to say that the valuation of the appeal is arbitrary and I would therefore overrule the objection regarding The Court-fees in this appeal and would hold that the Court-fee paid is adequate.

Dixit, J.

I regret, I do not find myself agreement with my learned brother. In my opinion the memorandum of appeal is under vaiued. My learned brotner has noted and analysed the conflicting decisions on the construction of Section 7(iv)(f) of the Court-fees Act. I do not, therefore, propose to give a precis of those decisios.

So as the construction of the section is concerned, I think its words are plain and they permit the Appellant to put his own valuation on the memorandum of appeal and pay Court-fees on-that-valuation. There are no words in Setion 7(iv) to indicate that the amount at which the Plaintiff valued the relief sought by him and stated by him in the plaint, shall also be the valuation for the purposes of appeal.

But the fact that the Appellant can u/s 7(vi)(f) put his own valuation on the memorandum of appeal does not mean that he can place any arbitrary value. The valuation must be a reasonable one, and when a question is raised as to the true valuation, it is open to the Court to determine whether the value put by the Appellant is a reasonable one.

Now it seems to me that an unsuccessful Plaintiff in a suit for rendition of accounts, when appepling for a decree cannot on general principle be allowed to value the relief-identical wttb that sought in the plaint-prayed for in appeal at a figure lower than which he himself had stated in the plaint.

Likewise a Defendant against whom a decree for rendition of accounts has been passed, and who accepted without demur the valuation put by the Plaintiff or who failed to satisfy the trial Court the about high valuation of the suit, by the Plaintiff cannot, when appealing from the whole decree be permitted to turn round and say that the valuation of the relief to Plaintiff is lower than that stated by him in the plaint.

I do not think it is doing any violence to the language of Section 7(iv)(f) or causing any injustice to the Appellant to say that in these circumstances the Appellant cannot value his appeallant anything less than the valuation in the plaint any such low valuation would be unreasonable.

The Appellant''s right to value the memorandum of appeal is thus not taken away but is only limited by his own act or omission in the trial Court. My learend brother has pointed out the difficulty raised by the decision of the Privy Council in AIR 1929 P.C. 147 (B) in the construction of Section 7(vi)(f), Court-fees Act.

That decision has to be read In the context of. ,the ''particular facts of the case and cannot be regarded as an exposition of the whole law. See Quinn v. Leathem'', (1901) AC 495 (L). When so read carefully, it will be seen that their Lordships of the Privy Council held that the valuation in ques tion'' not be regarded as an under-valua tion, or as a split value, because that amount was.

largely in excess of the true sum of relief at which a sound valuation could in the circunust ances ''Q the case be said to reach

This is clear from the observations of the Privy Council:

It is plain that any substantial inversion of lia under the respective decrees would result in in the sums awarded on appeal to both parties being much within Rs. 19,000 award edto one ....

Their Lordships find no reason for treating that payment either as upon an under-value or a split-value.

Their Lordships think, with much respect to the Judicial Commissioner, that it was a mistake to treat the payment of Rs. 975/- as a fee made-only on the amount of the decree" passed against the Appellants. That amount, as already stated,, may be not only in full but largely in excess or the true sum of relief at which a sound valuation could In the present circumstances be said to-reach and it covered the appeal as a whole, including that sum on the one hand and a much smaller figure of Rs. 3000 on the other....

The Privy Council decision does not lay down that the Appellant is entitled to place any arbitrary value on his memorandum of appeal. I am therefore, disposed to prefer the view taken by the Patna High Court in AIR 1935 Pat 396 (FB) (A).

In the present appeal, the Appellant by raising the objection that there was no partnership between him and the Hukumchand Mills Ltd. and that there was no partnership between him, and Respondent No. 1 the Raj Kumar Mills Ltd; between the period from 1-4-1945 to 31-12-1945, has appealed from the whole decree. By stating in, the memorandum of appeal that.

that the Appellant contests the claim of Defendant regarding accounts from 1-4-1945 to 31-12-1945 on old basis but puts forward a new basis of accounts and values this partial claim for accounts at Rs. 5,000/- as provided in Court-fees Act Section 7(4)(f) and accordingly stamps for Rs. 343-12-0 are annexed hereto.

the Appellant has instead of clarifying the valuation of the appeal only confused it.

As the appeal is against the whole decree... the minimum value of the appeal can only be that stated by the Plaintiff in the plaint. It is not clear on what basis the Appellant has put the value of the appeal at Rs. 5000/-. learned Counsel for the Appellant when specifically questioned was unable even to say whether this value of Rs. 5000 represented the value of the decree to the Plaintiff if the appear succeeds or whether it is the value of his own claim against the Plaintiff.

For the above reasons I am of the opinion, that as the Appellant made no attempt to satisfy the lower Court that the Plaintiff however valued his suit he is bound by the valuation, of Rs. 24,000/- given by the Plaintiff, and the value of this appeal at Rs. 5000/- is arbitrary and unreasonable. The Appellant must, therefore, be called upon to correct the valuation and pay additional Court-fees.

By the Court. As there is a difference of opinion between us on the question of the valuation of this appeal, let the papers be laid before Hon''ble the Chief Justice for hearing of the appeal by a third Judge.

Shinde, C.J.

This matter has been referred tome u/s 30 of the High Court of Judicature Act as there is a difference of opinion in respect of the question of valuation to be put on the memorandum of appeal between Dixit J. and Chaturvedl J. The short facts of the case are as follows:

Rajkumar Mills Limited Indore and Hukumchand Mills Limited Indore were contractors for the military to supply tents in 1940. In April 1940 Rajkumar Mills entered into a partnership with Pratapsingh, father of Mahendrasingh Appellant. It was for one year dating from 1-4-1940 to 31-3-1941. From 1-4-1941 a new partnership with Mahenrasingh was formed. This; was also for one year in the first instance. This partnership was extended up to 31-3-1945.

It is further alleged by the Plaintiff that it Was again extended from 1-4-1945 to 31-12-1945. The Defendant contends that from 1-4-1945 to 31-12-1945 business was carried on on commission basis. Accounts were taken until 31-12-1944 theugh they were not finalized. Plaintiff filed a suit for accounts. The Plaintiff valued the claim tentatively at Rs. 24,000/- and paid Court-fees on it.

A preliminary decree was passed against the Defendant. Against that decree the Defendant filed this appeal and valued his appeal at Rs. 5000/-. It is not denied that the subject matter of the appeal is co-extensive with that of the suit. A preliminary objection was raised that the Court-fee paid is insufficient. When the case was heard " a bench consisting of Dixit J. and Chaturvedi J., relying upon a decision given in Chunni Lal and Others Vs. Sheo Charan Lal Lalman and Others Chaturvedi J. held that a Defendant appealing against a preliminary decree in a suit for accounts is not bound to accept the tentative valuation of the Plaintiff but can put his own value on the appeal.

Dixit J. held on the other hand that altheugh the Defendant-Appellant is free to put his own valuation on appeal he cannot do so arbitrarily. For this view Dixit J. relied upon a decision in AIR 1935 Pat 396 (FB) (A). On account of this difference of opinion this matter has been referred to me.

The learned Counsel for the Appellant contends that the decision of the Allahabad High Court given in Chunni Lal and Others Vs. Sheo Charan Lal Lalman and Others is correct and therefore it should be followed. He argues that u/s 7(iv)(f) of the Court-fees Act, Court-fee is to be paid according to the amount at which the relief sought is valued in the plaint or a memorandum of appeal.

This does not bind the Defendant to put the same value on appeal at which the Plaintiff values his suit. His contention is that in a suit for accounts there is no material to base the valuation and hence a tentative value is allowed to be put on the subject-matter of the suit and the memorandum of appeal.

There is no reason why the Defendant be bound by the same tentative value when he files an appeal. Mr. Chitale the learned Counsel for the Respondent contends that if the Defendant is allowed1 to put any valuation it would be giving him an opportunity to alter the venue of appeals. He further contends that the memorandum of appeal'' was specially mentioned in Section 7(iv)(f) because at the time when the Court-fees Act was passed there was no provision for a preliminary decree and hence after the passing of the decree, which was final, valuation was likely to be different from the one tentatively put on the subject-matter of the suit by the Plaintiff.

On the basis of this construction the learned Counsel argues that in a preliminary decree accounts are not taken and hence the Defendant is not free to put a different valuation in appeal against a preliminary decree. If this construction be accepted then logically it follows that ,when a final decree for a certain sum is passed against the Plaintiff or the Defendant, the Plaintiff or the Defendant appealing against the entire .decree must value the memorandum of appeal at Sesame amount for which the decree is passed.

This view however is not supported by the decision of the Privy Council in AIR 1929 PC 147 (B). The facts of that case were as follows:

Faizullah Khan and Sherdad Khan Plaintiffs valued their suit for accounts at Rs. 3000/-. The Defendeant Mauladad Khan asked for a decree in his own favour for Rs. 29,000/-. The subordinate judge passed a final decree for Rs. 19,991/- in fayour of Defendant Mauladad Khan.

Against this decree an appeal was filed and the Plaintiff valued the appeal at Rs. 19,991/-. The relief claimed was for the reversal of the decree for Rs. 19,991/- and for granting a decree in favour of the Appellant for such amount as may be found due. The Judicial Commissioner held that as no Court-fee was paid on Rs. 3000/- the claim of the Plaintiff-Appellant for granting a decree in his favour cannot be considered.

When an appeal was filed before the Privy Council, their Lordships of the Privy Council observed as follows:

It is only necessary to observe that this applied to a valuation of the appeal in its entirety that is to say both for the purpose of reversing the-decree against the Appellants and for granting the decree in their favour. The Court-fee due upon, the appeal valued as an entirety as thus stated was Rs. 975/- and that was duly paid.

Their Lordships find no reason for treating that payment, either as upon an under-value or a split-value. Their Lordships think with much respect to the Judicial Commissioner that it was a mistake to treat the payment of Rs. 975/- as a fee made only on the amount of the decree passed against the Appellants.

That amount as already stated may be not only in full but largely in excess of the true sum of relief at which a sound valuation could, in the present circumstances, be said to reach and it covered the appeal as a whole, including that sum on the one hand and a much smaller figure of Rs. 3000/- on the other.

Their Lordships are clearly of opinion that the memorandum of appeal in the present case did state in terms of the Act, the amount at which the relief was sought.

This decision clearly lays down that even where a final decree is passed for a certain sum, in an appeal against that sum it is not necessary to value the memorandum of appeal at the same amount for which the decree is passed. Their Lordships of the Privy Council interpreted the words "according to the amount at which the relief sought is valued in the plaint or memorandum of appeal" to mean that even where a final, decree is passed the Plaintiff or the Defendant can put his own valuation on the memorandum of appeal.

Their Lordships thought that as the potential value of the relief granted was likely to within the sum for which Court-fee was paid, the Court-fee was sufficient. The argument put forward by Mr. Chitale that once a final decree is passed the relief is crystallised and therefore the same valuation must be put in appeal, is not supported by the decision of the Privy Council. According to the decision of the Privy Council an Appellant is free to put his own valuation even when a final decree is passed.

It is however not necessary for me to pursue this point further as both the learned Judges, who heard the case, have come to the conclusion that the Appellant, be he the Plaintiff or the Defendant, is free to put his own valuetion on memorandum of appeal. The only point for consideration is whether the Appellant can value the memorandum of appeal arbitrarily.

The Privy Council decision referred to above does not lend support to the view that an appeal can be valued arbitrarily. Their Lordships of the Privy Council have clearly stated that as the Court-fee paid was for an amount which maybe not only in full but largely in excess of the true sum of relief at which a sound valuation could, in the present circumstances, be said to reach it was sufficient.

Consequently there is no reason why the Defendant should not accept the same valuation in appeal which the Plaintiff puts on his suit. However as the Defendant is free to value his memo-randum of appeal irrespective of the value of the Kpuit u/s 7(iv)(f) of the Court-fees Act) he should be allowed to put a lower valuation if he can show that the suit has been over-valued.

Unless and until the Defendant is able to show that the suit is over-valued, he should not be Allowed to value his memorandum of appeal at an amount less than the valuation of the plaint. This appears to be a reasonable view. u/s 7(iv)(f) Court-fee is to be paid on the amount at Which relief sought is valued in the memorandum of appeal.

The relief is to be valued. If the relief is to be valuled, then it follows that the value of the Relief has to be taken into consideration. It has reference to a nominal value or arbitrary value of course in so far as there is no materialon record, the value is bound to be tentative. However this section does not allow to put any, value on the relief irrespective of the value of the subject-matter.

There is therefore no room to construe the Section in such a maimer as to allow the relief to be valued at an arbitrary amount. This view ''will also do a Way with the anomaly of the alteration of venue of appeals. In AIR 1935 Pat 398 (FB) (A) Mohammad Noor J. observed as follows:

I agree. In my opinion u/s 7(iv)(f) a Defendant appealing against a preliminary decree in a suit for account need not accept the tentative value of the Plaintiff'': He may put his own value on the appeal. But this valuation should not be arbitrary. I have read the judg ment which my brother James is about to deliver r and I agree with him that ordinarily, the value of the claim as given by the Plaintiff in his plaint to be the basis of the appeal.

There may however be cases, the present is one of these, where the Defendant a valuation should be accepted. The Court can always call upon the Appellant to correct the valuation and Pay additional Court-fee.

I respectfully agree with these observations. My answer to the reference, therefore, is that although the Defendant'' is free to put his own valuation on the appeal, he cannot do so arbitrarily. He should be allowed to value the memorandum of appeal at an amount less than the valuation of the plaint only when he can demonstrate that there is valid ground for holding that the plaint is deliberately over-valued. In this view of the matter I agree with the view taken by Dixit J.