Ranganaikamma vs Venkatachalapathi Rao

Umamaheswaram, J.

1.This Civil Revision Petition is filed as against the order of the Subordinate Judge of Rajahmundry in check-slip No. 210/x in O. S. No. 87 of 1951. The Plaintiff-Petitioner herein filed a suit for partition of the properties mentioned in plain chedulesp4o D into two equal shares and for allotment oj/6ne such share to her. In respect of the partition and separate possession, she paid the fee of Rs. 100 under Schedule II, Article 17-B of I-fees Act. Objection was taken by the office e suit had to be valued u/s 7, CI. (v) of fees Act. The Plaintiff represented the plaint stating that the court-fee .paid by her was sufficient and the District Judge passed the following order on. 20lh March, 1951:

Consistently with her contention that she is in joint possession Plaintiff has not asked for recovery of possession. She prays for only partition and allotting one share to her. Hence register.

The plaint was accordingly registered as O. S. No. 26 of 1951. The Defendant filed a written statement on 25th July, 1951, and in paragraph 12, he contended that the Plaintiff was not a co-owner in joint possession of any of the suit properties and that she had to pay court-fee on the market value of her share of the suit properties.

The court-fee examiner having taken an objection that the court-fee paid was not adequate, the question of court-fee was heard by the Subordinate Judge of Rajahmundry as a preliminary issue and following the decision in Suryanarayana Murthi v. Ramakrishniah, 1949 1 Mad LJ 513: (AIR 1949 Mad 750) (A), he held that in spite of the order passed by the District Judge on 20th March, 1951, holding that the court-fee was sufficient, he was entitled to go behind that order and decide the same question, as the prior order was not passed alter hearing the parties. He also held, differing from the District Judge, that the Plaintiff was bound to pay court-fee u/s 7, Clause (vj alter furnishing full particulars m regard to some of the items in the plaint A Schedule. The Plaintiff has filed the above Civil lie-vision Petition as against the said order.

Two questions were raised by the learned advocate for the Petitioner, namely, (i) that under the terms of Section 12 (i) of the Court-fees Act, die decision of the District Judge, dated 20th March, 1951, was final and was not liable to be re-opened at a later stage of the proceeding in the suit by the Subordinate Judge and (ii) that the Subordinate Judge erred in holding that Section 7 (v) of the Court-fees Act applied in regard to some of the plaint A schedule items. He contended that the decision in 1949 1 Mad LJ 513: (AIR 1949 Mad 750) (A), is erroneous and that it was in effect overruled by a Bench in Venkatasubba Rao v. Venkatarao, ILR (1951) Mad 887: (AIR 1951 Mad 698) (B).

The learned advocate for the Respondent argued, on the other hand, that the Bench decision is not correct and is opposed to the decisions of the Allahabad, Fatna, Oudh and Nagpur High Courts, and that, on a proper reading of the several provisions of the Court-fees Act, I should not follow (lie decision of the Madras High Court in Bendapudi Veera Venkata Subba Rao and Another Vs. Rao Venkata Rao, . He also contended (hat the finality of a determination or decision u/s 12(i) is only in regard to valuation or appraisement of the Property and not in regard to the c''a: s or category under which the case Jails, as held by the Supremo Court in a recent decision in Ncniichand v. Edward Mills and Co., Ltd., 1953 1 Mad Lb 117: (AIR 1953 SC ��) (C).

4.The purpose of appreciating the correctness of the relevant contentions, it''is necessary to examine the provisions of the Court-foes Act. Section 5 provides that when any difference arises between the officer whose duty it is to see that any fee is paid under Chapter II and any suitor or attorney, as to die necessity of paying a fee or the amount thereof, the question shall, when the difference arises in any of the said High-Courts, bo referred to the taxing officer, whose decision thereon shall be final, except when the question is referred by him to the High Court. Similarly, when any such difference arises in any of the said Courts of Small Causes, the question shall be referred to the Registrar, whose decision thereon shall be final, except when the question is refined by him to the Chief Judge of such Court. This section does not at all provide for the Defendant being heard when a question of court-fee arises for decision. It only enacts that the question shall be referred to the taxing officer or the Registrar as the case may be and that his decision shall bo k final except as provided therein. Section 12 (i) en-It- acts that every question relating to valuation for the purpose of determining the amount of any fee chargeable able under Chapter III on a plaint or memorandum |L'' of appeal shall be decided by the Court in which K." such suit or memorandum as the case may be is K filed and such decision shall be final as between the parties to the suit.

The short question that arises is, as to whether an order passed, before registering the plaint, is a decision within the meaning of Section 12 and is final as between the parties to the suit. A decision to be final as between the parties must be a judicial decision arrived at alter hearing the parties and in accordance with the legal maxim audi alteram partem in the absence any clear or express terms to the contrary. An order passed only after hearing the Plaintiff and before registering the plaint cannot be regarded as a final decision, so as to bind the Defendant but can be regarded only as a provisional order liable to be set aside at die instance of the Defendant or State interested in the collection, of proper court-fee.

The pecuniary jurisdiction of die Court depends upon a combined reading of the provisions of the Court-fees Act and the Suits Valuation Act and the Defendant who is entitled to take an objection as to die pecuniary jurisdiction of the Court in which die suit is instituted, must normally have an. opportunity of showing that the Court-fee paid is wrong and that the suit was deliberately under-valued for purposes of jurisdiction. So, in order that any decision on a question of Court-fee should be final as between die parties, in my view, it is absolutely necessary that the parties should be heard or have an opportunity of being heard. The words "is filed'' in Section 12 are also significant as pointed out as the Full Bench in Amjad Ali v. Muhammad Israil, ILR 20 All 11 17 (D), in the following terms:

That word certainly means something more than ''presented'' for admission. It implies that the plaint or memorandum of appeal has been admitted and put on die files of the Court. That is the sense in where the same word is used in Section 28 of the Court-loos Act....

This question was considered in a very early decision by the Full Bench of die Allahabad High Court in ILR 20 All 11 at p. 17 (D), and the head-note correctly sets out the point decided and their opinion which is in the following terms "The decision of the Court on a question of the Court-lee payable on a plaint or memorandum of appeal which is to be ''final as between the parties to the suit'' must be a decision made between the parties on the record and after they have had an opportunity of being heard, and not a decision based upon the report of a Munsarim before the plaint or memorandum of appeal is filed and therefore before any parties are before the Court." This decision was followed in Bholanath Chakravarty and Others Vs. Girish Chandra Chakravarty and Another, . The same view is taken by the Nagpur High Court in Mt. Gangoo v. Mt. Saloo ILR (1942) Nag 432: (AIR 1941 Nag 217) (F), and by the Oudh Court in AIR 1942 385 (Oudh)

This question was recently considered in Bendapudi Veera Venkata Subba Rao and Another Vs. Rao Venkata Rao, as a result of a reference made by Panchapakesa Aiyar, J., to the Bench. At page 76 (of Mad LJ): (at p. 700 of AIR), the learned Judges held that the act of the ministerial'' officer registering the plaint or admitting the memorandum of appeal could not be attributed to the Judge and that "to have finality u/s 12 (i), the Judge himself must bring his mind to bear on the question." At page 78 (of Mad LJ): (at p. 701 of AIR), they referred to the decisions of the Allahabad and the Nagpur High Courts but have not given any convincing reasons as to why their view was not accepted by them. They merely preferred to follow the view expressed by King, J., in Vanguri Mahalakshmamma Vs. Vanguri Venkatanarayanamurthi (died) and Others, . I have carefully examined the decision of King, J., -and I am not able to follow the reasoning and the conclusion of the learned Judge which are in the following terms:

The word ''decided'' and the word decision are here given without any qualifications at all and they must clearly apply to any adjudication by the Court whether both parties have been heard or only one party has been heard or oven if no party at all has been heard.

As already stated, the expression ''decision and the phrase shall be final as between the parties to the suit'' would be meaningless ''if his view is accepted. The principle laid down in the maxim audi alteram partem is of fundamental importance. It would be opposed to natural justice to hold that a Defendant or Respondent who has not been heard is bound bv such a decision. Where the legislature intended that the Defendant need not be heard, it has provided, in specific terms, as in Section 5 of the Court-fees Act. The Defendant is vitally interested in the suit being filed in a Court of competent jurisdiction as his right of appeal will be governed by the provisions of Madras Civil Courts A el.

He is consequently entitled to raise an objection as to the pecuniary jurisdiction of the Court which often depends upon the determination of the Court-fee paid by the Plaintiff. The observation of the Judicial Committee in Rachappa Suba Rao v. Shidappa Venkatarao, ILR 43 Bom 507: (AIR 1918 PC 188) (I), have really no bearing on this point. What was held by Sir Lawrence Jenkins in that case was that the objection as to the pecuniary jurisdiction should be raised in the trial Court and would not be permitted to be taken, for die first time, before the Privy Council. The passage relied on by the Madras High Court is at page 518 (of ILR Bom): (at p. 191 of AIR), and is as follows:

The Court-fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the benefit of the State.

This passage does not lead to the conclusion that the Defendant is not at all entitled to raise any objection as to the Court-fee or as to the jurisdiction of the Court. Section 8 of the Suits Valuation Act provides that where in suits other than those referred to in the Court-fees Act, Court-fees are payable ad valorem under the Court-fees Act, the value as determinable for the computation of Court-fees and the value for purposes of jurisdiction shall he the same.

The Defendant is consequently entitled to be heard on the question of jurisdiction which also involves a decision as to what provision of the Court-fees Act, applies and what Court-fees are payable. I. therefore find it difficult to follow the view laid down in Amara Narasimhulu Chetty Vs. Thamidalapati China Ramayya Naidu and Others, that while a finding as to the value of the property in suits for the purpose of Court-fee is final u/s 12 (i) of the Court-fees Act, it docs not preclude the Court from afterwards coming to the conclusion that it had no jurisdiction to try the suit.

Section 12 (ii), no doubt, provides for the collection of additional Court-fee whenever any suit comes before a Court of appeal, reference or revision and the Court considers that the question of Court-fee was wrongly decided to the detriment of die revenue. But it does not in my opinion, lead to the conclusion that a wrong decision arrived on a question of Court-fee cannot be set aside at the instance of a party who has not been heard but can only be agitated before a Court of appeal, reference or revision. The order passed by the Judge as to the I adequacy of Court-fee before admitting the plaint or memorandum of appeal should, in my view be regarded as merely a provisional order.

After the Defendant is served tie is entitled to, take an objection as to jurisdiction and Court-fee. I The issue as to court-fee and jurisdiction'' should however be decided as early as possible. I agree with the observations in Bendapudi Veera Venkata Subba Rao and Another Vs. Rao Venkata Rao, that the Plaintiff ought not to be allowed to proceed with the, suit and incur expenditure for several years on the basis that the Court-fee paid by him is correct and that it would bo unfair to demand from him a heavy Court-fee at a very late stage. But I do not agree that the question should be finally decided before the plaint or the appeal is admitted and without hearing the opposite side. With great respect, I do not agree with the decision in Bendapudi Veera Venkata Subba Rao and Another Vs. Rao Venkata Rao, , and I prefer to follow the view taken by the High Courts of Allahabad, Patna, Nagpar and Oudh. In the view taken by me, it is unnecessary to discuss the various decisions of single judges of the Madras High Court.

The second contention raised by the learned advocate for the Respondent turns upon the interpretation of the words "every question relating to valuation for the purpose of determining the amount or any fee chargeable under dis chapter on a plaint or memorandum of appeal,'''' and the effect of the Supreme Court decision in Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another, . At page 121 (of Mad LJ): (at p. 32 of AIR), Mahajan, J., states as follows:

The differed ace in the phraseology employed in Sections 5 and 12 of the Court-fees Act indicates that the scope of Section 12 is narrower than that of Section 5. Section 5 which declares decisions on questions of Court-fee whenever they arise in the chartered High Courts as final makes a decision as to the necessity of paying a lev i>i- i io amount thereof final.

The learned Judge proceeds to observe at page 122 (of Mad LJ): (at p. 32 of AIR), thus:

When the two sections in the same Act relating to the same subject-matter have been drafted in different language, it is not unreasonable to infer that they were enacted with a different intention an that in one case the intention was to give finality to all decisions of the taxing officer or the taxing Judge, as the ease may be, while in the other case it was only intended to give finality to questions of fact that arc) decided by a Court but not to questions of law. Whether a case falls under one particular section of the Act or Anr. is a pure question of law and does not directly determine the'' valuation of the suit for purposes of Court-fee. The question of determination of valuation or appraisement only arises after it is settled in what class or category it falls.

Adopting those observations, it is clear that the order of the District Judge, dated 20th March, 1951, holding that the case falls under Article 17 of Schedule II and not u/s 7, Clause (v) would, in any event, be not final within the meaning of Section 12 (i) and binding upon the Defendant, even assuming that the valuation or the appraisement by the District judge would be final u/s 12 (i), according to the decision in ILR 1951 Mad 867: (AIR 1951 Mad 3) (B). The Defendant who has not been heard would consequently be entitled to reopen the decision and be heard under what particular section of the Act the case falls. Even in that view 1 hold that the Subordinate Judge was entitled to decide on the allegations in the plaint which particular section it the Court-fees Act applied and in what: class or category the suit falls.

Reference was made to (lie Full Bench decision in Chintalapati Murthiraju Vs. Chintalapati Subbaraju and Others, , in support of the proposition that a petition for revision does not lie when a Defendant has unsuccessfully challenged the adequacy of the stamp affixed by the Plaintiff. That decision, in my opinion, does not really throw any light on the question as to whether a Defendant should be heard or not in order that a decision u/s 12 (i) should be final and binding upon him. The opinion expressed by the Full Bench that a petition for revision does not lie, when a Defendant has unsuccessfully challenged the adequacy of the stamp affixed by the Plaintiff, unless the further question of jurisdiction is involved, may require re-consideration and modification in view of the observations of Mahajan, J., in the decision of Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another, , at page 122 (of Mad LJ): (at p. 32 of AIR), which are as follows:

If a decision u/s 12 is reached by assuming jurisdiction which the Court does not possess or without observing the formalities which are prescribed for reaching such a decision the order obviously would be revisable by the High Court in the exercise of revision powers.

The next question which arises for decision is, whether the Subordinate Judge rightly construed the various allegations in the plaint and whether he was right in holding that the provisions of Section 7, Clause (v), applied in respect of the plaint schedule items. In paragraph 6 he states as follows:

The Plaintiff in her plaint stated that the Defendant is setting up an ante-adoption agreement alleged to have been executed by Venkataratnam Naidu Garu in his favour, dated 4th June, 1920 and a prior settlement deed, dated 15th September, 1915, in favour of his pre-deceased daughter-in-law and a will by the daughter-in-law in favour of the Defendant''s son. The Plaintiff''s contention is that .these documents are spurious. After hearing the parties, I directed the Defendant to produce the ante-adoption agreement and the settlement deed. They contain the plaint A schedule property and the Defendant claims to be in possession of the plaint A schedule properties in his exclusive right. that is so, the Plaintiff has to pay for possession of the property and value the relief u/s 7, CI. (v), with reference to items 1, 2, 5 and 0.

Fortunately, the documents referred to by the coordinate Judge have not been marked as exhibits in the case and arc not before me. The advocates appearing for the Petitioner and Respondent were not in a position to slate whether the ante-adoption agreement, dated 4th June, 1926, is a registered document. The Plaintiff in her plaint attacks all the documents referred to in paragraph 6 of the judgment as being''spurious and not having been acted upon. Even the will under which the Plaintiff claims title has not been marked in the case.

In paragraph 4 (a) of the written statement, the Defendant states that items 1, 2 and 3 of .schedule A were given to him and that Venkataratnam Naidu consequently precluded himself from disposing of tho said properties. I do not know if in spite of having executed the agreement, Venkataratnam Naidu specifically disposed of those properties by his will. The properties settled in favour of the daughter-in-law under a registered document, dated 15th September, 1915, and disposed of by her under her will, dated 6th August, 1934, may however stand on a different footing as the documents were executed long "ago and were registered.

In my opinion, the proper course is to remand the matter to the Subordinate Judge for a fresh disposal of the case. The Subordinate Judge will mark the will of Venkataratnam, the ante-adoption agreement executed by him, the settlement deed and the will executed by the daughter-in-law of Venkataratnam and decide the question of Court-fee by considering whether the allegations made by the Plaintiff that all the properties continued in possession of Venkataratnam clown to the date of his death and that thereafter she was in joint possession with the Defendant, are true.

In respect of such of the properties as were in the exclusive possession of the Defendant, the Plaintiff would be bound to pay Court-fee u/s 7, CI. (v). If the question of Court-fee cannot be decided without taking evidence and before proceeding with the trial of die suit, it may be tried along with the other issues in the suit. I therefore set aside the order of the Subordinate Judge and remand the case for fresh disposal in the light of the observations aforesaid. In the circumstances of the case, each party will bear the costs of the Civil Revision Petition.