Mohd. Azam Gori vs Mohd. Salahuddin Gori and Others

This is a miscellaneous appeal against the order of the District and Sessions Judge, Warangal, rejecting the plaint under Order 7, R. 11, Sub-clause (3), Code of Civil Procedure. This was a suit by the Plaintiff, who is the Appellant before us for possession of a house situated in Girmajipet, Warangal and for a decree for mesne profits for three years prior to the date of the suit. An objection was raised by the office that the two reliefs viz., the relief relating to the possession of immovable property and the relief as regards the mesne profit''s should be valued separately and court-fee payable on each relief should be paid. It was contended by the Plaintiff, that where the main relief was for possession of the immovable property the claim as regards mesne profits was only an ancillary relief and, therefore, he was entitled to value the reliefs separately, add them up and pay court-fee thereon. An issue was raised in this behalf and after hearing the arguments of the Plaintiff''s advocate the District Judge held that the court-fee paid by him on the above calculation was not correct. He, therefore, called upon the Plaintiff to pay the additional court-fee and granted two weeks'' time to pay the deficit court-fee. This order was passed on 14-71950. Again on 12-8-1950 inasmuch as the deficit court-fee was not paid by the Plaintiff within the time granted by the court, the court rejected the plaint for not making up the deficient court-fee. It is against this order that this appeal has been filed. We heard the arguments of the respective advocates and also the Government pleader and we are of opinion that the order of the lower Court is wrong.

For the determination of this question, the relevant section of the Court-fees Act that would have to be looked into is Section 13, Hyderabad Court-fees Act, corresponding to Section 17 of. the Indian Act. It has to be observed that the words of Section 17 of the Indian Court-fees Act are to the following effect:

Where a suit embraces two or more distinct subjects the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeal in suits embracing separately each of such subjects would be liable under this Act";

whereas the words of Section 13, Hyderabad Court-fees Act arc as follows:

Where in any suit different causes of action have been joined then the court-fee on such plaint or memorandum of appeal shall be computed on the total of the value of each claim based on each cause of action.

It would, therefore, appear that the words in Section 13, Hyderabad Court-fees Act and those in Section 17 are not identical in terms, The word in Section 17 is ''subjects'' whereas the words in Section 13 are ''Causes of Action''. The question is whether the word ''subjects'' is to be construed as being synonymous with ''causes of action.'' No doubt this view was taken by the Allahabad High Court wherein their Lordships construed the word ''subject'' as synonymous with cause of action � Chedilall v. Kirath Chand 2 All 682 (A). But this interpretation of the Allahabad High Court was not followed or approved by the other High Courts, for the Patna High Court in � Ramadhin Singh and Others Vs. Baijnath Pd. Singh and Others, , clearly held that the word ''subject'' in Section 17 of the Indian Act is not the same as ''cause of action''. The Calcutta High Court dissented from this view in � Haru Bepari and Others Vs. Roy Kshitish Bhusan Roy Bahadur and Others, . It would, therefore, follow that the word ''subject'' in the Indian Court-fees Act and the words ''cause of action'' in the Hyderabad Court-fees Act are not synonymous and cannot be regarded as being the same.

The next question is that where two reliefs are based on the same cause of action whether it is obligatory on the Plaintiff to value the reliefs separately, assess the court-fee on each relief and add them up and pay the aggregate court-fees. What is the basis for the claim for possession of land and what is the basis for claim for mesne profits? We are of opinion that both the claims are connected and both are based on the right or title of the Plaintiff to the land. The cause of action relating to mesne profits flows from the establishment of the right of the Plaintiff to the suit land.

A claim for possession and mesne profits is treated as one entire claim. This was the view taken by the Calcutta High Court in the case of � Kishorilal v. Sharat Chunder 8 Cal 593 (D) and this decision was followed by the Madras High Court in the case of In Re: Parameswara Pattar AIR 1930 Mad 633 (E).

Even under the Indian Court-lees Act the trend of decisions has been that the claim for possession to land together with the claim for mesne profits could not be regarded as distinct subjects of claim within the meaning of Section 17, Indian Court-fees Act. This has been the view of the Madras High Court: vide In Re: Parameswara Pattar, and vide also � Sundaram v. Subba Rao AIR 1942 Oudh 402 (F) and � ''Reference under Court-fees Act 1870 Section 5 16 All 401 (G). Another aspect of the case which might be considered is with reference to Order 2, R. 2, Code of Civil Procedure. Order 2, Rule 2 forbids the splitting of claims which the Plaintiff is entitled to make in respect of the cause of action. But a suit for possession alone could be filed when claiming mesne profits and that would not debar the Plaintiff from bringing a separate suit for mesne profits. It was, therefore, argued that the fact that the Plaintiff is at liberty to file a suit separately for mesne profits and not include it along with the claim for possession would show that these are two different subjects and if. these are different subjects, then Section 17 of the Court-fees Act would come into operation. With regard to this aspect of the case it has been held that for the purposes of Section 17 of the Court-fees Act, this will not be the test that would be applied. The Madras High Court in the case of � K. Rangaswami Reddiar Vs. K. Venkataperumal Reddiar and Others, held the above view that in order to determine whether there are different and distinct subjects or not, the test under Order 2, R. 2 will not be applied. We are in agreement with the view held by the Madras High Court.

For all the above reasons we hold that the order of the lower Court cannot stand and Section 13 of the Hyderabad Court-fees Act cannot apply to this case and the court-fee payable on the suit would be the court-fee payable on the value of the claim for possession and the value of the claim for mesne profits added together. This appeal is allowed, the order of the lower Court is set aside. The Appellant will have his costs of the appeal from the Respondent. The case will go back to the lower Court for further hearing. This order will govern the Revision Petition also (314/4 of 1950).