S.N.V.R. Narayanan Chetti vs S.Pr.Al. Periappan alias Ramanathan Chettiar minor by mother and guardian Sivagami Achi and Others

Alfred Henry Lionel Leach, C.J.—The question which we are called upon now to decide in this case is whether the memorandum of appeal

has been properly stamped. The suit out of which the appeal arises was filed in the Court of the Subordinate Judge of Sivaganga for the taking of

the accounts of a dissolved partnership. The plaintiff valued his relief at Rs. 16,500 and paid the court-fee of Rs. 1,004-15-0. The trial Court

dismissed the suit on the ground that it was barred by law of limitation. The plaintiff then appealed to this Court and in his memorandum of appeal

valued the relief at Rs. 1,000 paying the corresponding court-fee of Rs. 112-7-0. In consequence of the decision of this Court in Nukala

Venkatanandam, In re (1932) 64 M.L.J. 122 : ILR 56 Mad. 705, this valuation was accepted by the officer whose duty it was to check the

stamping of the memorandum of appeal. But that case has recently been overruled by a Full Bench in Dhanukodi Nayakkar, In Re: Dhanukodi

Nayakkar and Others, . The respondents have in consequence contended that the appellant should value his relief in accordance with the figure at

which it was valued in his plaint. The appellant contends that, notwithstanding the fact that Nukala Venkatanandam, In re (1932) 64 M.L.J. 122 :

ILR 56 Mad. 705, has been overruled, the case is governed by Faizullah Khan v. Mauladad Khan (1929) 57 M.L.J. 281 : L.R. 56 IndAp 232 :

ILR 10 Lah. 737 (P.C.) and that the memorandum of appeal is properly stamped.

The question resolves itself into this: - Can the appellant in an appeal against a decree dismissing a suit for an account change his valuation,

although the subject-matter of the appeal is the same as in the trial Court?. Section 7(4) of the Court-Fees Act requires a suit for accounts to be

stamped ""according to the value at which the relief is valued in the plaint or memorandum"" and adds:

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

It is said, that, as there is a reference in this clause to the memorandum of appeal, the appellant is allowed to value the relief on appeal at

whatever he likes, notwithstanding that he valued it in the trial Court at a higher figure and that the correctness of this course is expressly recognised

in Faisullah Khan v. Manladad Khan (1929) 57 M.L.J. 281 : L.R. 56 IndAp 232 : ILR 10 Lah. 737 (P.C.).

It was held by a Full Bench of this Court in Chelasani Ramiah Vs. Chelasani Ramasami, and by another Full Bench in Arunachalam Chetty v.

Rangaswami Pillai (1914) 28 M.L.J. 118 : ILR 38 Mad. 922 that a plaintiff in a suit of this nature is entitled to value his relief at what he likes, it

being no objection to his valuation that it is an arbitrary one; and these decisions have not been challenged before us. We, therefore, start with this.

The plaintiff may in his plaint value the relief at his own figure. But having made the valuation for the purpose of the litigation, can he reduce it when

he comes to appeal? It has always been considered in this Court and in the other High Courts in India that he cannot. Until Nukala

Venkatanandam, In re (1932) 64 M.L.J. 122 : ILR 56 Mad. 705, was decided, a plaintiff appealing against a decree dismissing a suit for an

account was required in this Court to stamp his memorandum of appeal according to the full amount of the valuation on his plaint. Of course he

could if he so desired waive some of the relief which he claimed in the trial Court and in this case he would stamp his memorandum of appeal

accordingly.

The Court will not change a long-established practice unless it is shown that the practice is opposed to law. Before we can hold that the practice

which has been followed in this Court until the decision in Nukala Venkatanandam, In re (1932) 64 M.L.J. 122 : ILR 56 Mad. 705 and

throughout in other Courts should be altered, it must be shown that the practice is inconsistent with the provisions of Section 7 (4)(f) of the Court-

Fees Act. It must be remembered that the valuation of the relief in the plaint decides the forum - for instance whether the suit shall be filed in the

District Munsiff''s Court or the Subordinate Judge''s Court - and the valuation effects the forum of the appeal. In this case, if the appellant had

valued his relief in the plaint at Rs. 1,000, the figure at which he values it in the memorandum of appeal, the suit would have been filed in the District

Munsiff''s Court, and the appeal would be to the District Court. As the result of valuing his relief in the plaint at Rs. 16,500, he has had the

advantage of an appeal direct to this Court.

In (Dhanukodi Nayakkar), In Re: Dhanukodi Nayakkar and Others, , the Court held that where a defendant appeals from a preliminary decree

for accounts, he must value his relief according to the value stated in the plaint. If the appellant''s contention here is correct, it would mean that he

could value his memorandum at what he likes but the defendants could not. It certainly could not have been the intention of the legislature to make

any distinction between the plaintiff and the defendant in this respect.

The doctrine that a party cannot approbate and reprobate has been applied to application for leave to appeal to the Privy Council. In

Mahendranarayan Ray Chaudhuri v. Janakinath Ray ILR (1930) Cal. 66, Rankin, C.J. and Ghose, J., held that this doctrine applied to a case

where a party appealed to the lower Court upon a valuation inconsistent with the valuation upon which he sought a certificate to enable him to

appeal to His Majesty in Council and that a party who sued or appealed in a Court which would have no jurisdiction if the value exceeded Rs.

10,000 would debar himself from claiming at a later stage to have the subject-matter of the suit in the Court of first instance treated for the

purposes of an appeal to the Privy Council as exceeding Rs. 10,000. The principle governing this decision was stated by their Lordships of the

Privy Council in Muthusawmi Jagavera Yettapa Naicker v. Venkateswara Yettia (1865) 10 M.I.A. 313 and has been applied by this Court in

Alagappa Chetty Vs. Nachiappan alias Kirukan and Others, and by the Bombay High Court in Lallubhai Pragji v. Bhimbhai Dajibhai ILR (1929)

53 Bom. 552. We see no reason why the doctrine referred to should not apply to a case like the present one.

In Arogya Udayan v. Appachi Rowthan (1901) 12 M.L.J. 35 : ILR 25 Mad. 543, Benson and Bhashyam Aiyangar, JJ., held that a plaintiff

could not change his valuation in the trial Court although he applied for leave to do so. This was a case in which the plaintiff had sued for an

account. He obtained a preliminary decree and the account was taken, the result being that he was entitled to a larger sum than that claimed in his

plaint and in respect of which he had paid court-fee. When the report of the Commissioner who had taken the account was made, the plaintiff

applied for leave to amend his plaint and leave was granted. The District Munsiff then ordered that the plaint should be returned to the plaintiff for

presentation in the proper Court. The Division Bench which heard the appeal held that this was wrong and that the suit had to remain in the District

Munsiff''s Court for the purpose of the passing of the final decree.

Although there are all these indications that it was not the intention to allow a plaintiff to change his valuation on appeal, the learned advocate for

the appellant has argued, as I have already indicated, that the Judicial Committee has decided that he can. In Faizullah Khan v. Mauladad Khan

(1929) 57 M.L.J. 281 : L.R. 56 IndAp 232 : ILR 10 Lah. 737 (P.C.), the plaintiff-appellants stamped their memorandum of appeal at a higher

sum than at which they stamped their plaint. They sued for an account valued at Rs. 3,000. Their claim was dismissed by the trial Court and a

decree was passed against them for Rs. 19,991. On appeal they asked that the decree against them should be set aside and they valued their relief

at Rs. 19,991, but they did not pay court-fee on their own claim for Rs. 3,000. The appellate Court allowed the appeal and remanded the case for

re-trial, but inasmuch as the appellants had not stamped their memorandum of appeal sufficiently to cover their own claim order that they should

not have a decree for any sum which might be found due to them and to that extent held that the appeal was barred by limitation. The Privy

Council held that the memorandum of appeal had been sufficiently stamped. This was a case in which the appeal was from the final decree and,

therefore, their Lordships were not considering the question of an appeal from a preliminary decree. The question now before us was never under

discussion. For these reasons, we are unable to agree that Faizullah Khan v. M auladad Khan (1929) 57 M.L.J. 281 : L.R. 56 IndAp 232 : ILR

10 Lah. 737 (P.C.) declares that the practice of the High Courts in India with regard to the stamping of appeals like the present appeal is contrary

to law.

In our opinion the scheme of the Act in this respect is to allow a plaintiff to value his relief at the figure he chooses, but it does not allow him to

change that valuation. He is allowed to value for the purpose of the litigation and when he has done so his valuation governs the forum of trial and

of appeal. There is no objection to an appellant abandoning on appeal a portion of the relief claimed in the lower Court or saying that he does not

claim relief beyond the figure corresponding to the value of the stamp, but unless he does this we are of opinion that he is bound by the valuation

fixed by himself at the commencement of the litigation.

Accordingly we hold that the memorandum of appeal in this case has been insufficiently stamped and if the appellant wishes to continue the

appeal, he must value his relief here in; accordance with his valuation in the Court below and pay the corresponding stamp fee. We will allow him

time until the 5th of January, 1938, in which to pay the additional court-fee. If the additional fee is paid by that date, the appeal will be placed in the

ordinary list for hearing. If it is not paid by that date, the appeal will be rejected. It follows, of course, that if the appellant wishes to limit his relief

on appeal to any figure less than Rs. 16,500, he can do so provided the memorandum of appeal is stamped sufficiently.