SUJIR KESHAV NAYAK Vs. SUJIR GANESH NAYAK

JUDGEMENT

(1.) The question of law that arises for consideration in this appeal directed against judgment of the Kerala High Court is if the court-fee liable to be paid under Section 36 of Kerala Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as 'the Act') in a suit for dissolution of partnership and accounting is to be computed on the value of the plaintiff's share in a partnership as estimated by him or as found by the Court.

(2.) Computation of court-fee under the Kerala Act is governed by Chap. IV of the Act. Section 35 of it deals with suits for accounts and Section 36 suit for dissolution of partnership. Since this appeal is concerned with Section 36 only it is extracted below:

(3.) The question however is if the disclosure of valuation is in absolute discretion or option of the plaintiff or it can be objected to by the defendants and adjudicated upon by the Court, and if so in what cases. It was left open in Chettiar's case (supra). Provisions of Central and State Act have already been extracted earlier. Sub-section (2) of Section 36 of Kerala Act amply safeguards the interest of revenue. Similar provisions exist in Central Act. But under Civil Procedure Code plaint is liable to be rejected under Order 7, Rule 11 if it is under-valued. How to reconcile the two provisions the one leaving it to absolute discretion of plaintiff to value the suit as he considers proper and the other to reject a plaint if it is under-valued. For this it is necessary to examine the scheme disclosed in the Civil Procedure Code relating to filing of suit. Section 15 of the Civil Procedure Code (hereinafter referred to as 'C.P.C.') . provided that any suit shall be instituted in the court of the lowest grade competent to try it. What is a court of lowest grade and for what nature of suit has been determined and regulated by State enactments. Competency refers to jurisdiction territorial or pecuniary, of limited or unlimited limits. In courts of limited pecuniary jurisdiction valuation assumes great importance. A plaintiff may over or undervalue the suit for purposes of avoiding a court of a particular grade. In the former the plaint may be returned under 0. 7, R. 10 for presentation in proper court but in latter it is liable to be rejected. Since undervaluation goes to the root of maintainability of the suit a defendant is entitled to raise the objection irrespective of the nature of the suit. That is why this Court in Abdul Hamid Shamsi v. Abdul Majid, (1988) 2 SCC 575 , while upholding the right of the plaintiff to value the suit for accounting according to his own estimate held that he "has not been given the absolute right or option to place any valuation whatever in such relief." But that was a case of limited pecuniary jurisdiction in which the defendant could object as arbitrary undervaluation could result in rejection of the plaint. Such right should be denied in suits of unlimited jurisdiction for more than one reasons. A defendant cannot, as observed by the Privy Council in R. S. Jadhav Desai v. S. V. Jadhav Desai, AIR 1918 PC 188, is entitled to use it as a weapon to non suit the plaintiff. Then, by very nature of the suit a defendant is, normally, interested in delaying its adjudication which at times may frustrate the very purpose of the suit. Further, the provisions in Central Act and State enactments ensure that interest of State may not suffer by providing that no decree shall be passed or executed unless the court fee is paid on difference between the valuation disclosed and amount for which the suit is decreed. In Meenakshisundaram Chettiar v. Vankatachalam Chettiar, (1980) 1 SCC 616, it was observed that even though in suit for accounting the loss of revenue is ensured by statutory provision yet a plaintiff has a duty to give a fair estimate of the amount for which he sues. Reason for it obviously was insistence on being honest and just when approaching, a court of law. The observation was make because of the duty cast on court by 0. 7, R. 11 of C.P.C. But there is no indication if the suit was filed in a court of limited pecuniary jurisdiction. It can thus be resolved that in suits for accounting or for dissolution of partnership and accounting filed in courts lof limited pecuniary jurisdiction the plaintiff must take every care to disclose valuation which is not arbitrary as the plaint is liable to be rejected on objection of the defendant. But in suits of such nature filed before courts of unlimited jurisdiction the valuation disclosed by the plaintiff may be accepted as correct. This however does not mean that the courts power to examine the correctness of valuation is taken away. If on perusal of plaint the court is prima facie satisfied that the plaintiff has not been fair and valued the suit or relief arbitrarily it is not precluded from directing the plaintiff to value it properly and pay court fee on it. In Tara Devi v. Sri Thakur Radha Krishna Maharaj, (1987) 4 SCC 69 , this Court observed, "It is now well settled by the decisions of this Court in Sethappa Chettiar v. Ramanathan Chettiar, AIR 1958 SC 245 and Meenakshisundaram Chettiar v. Venkatachalam Chettiar, AIR 1979 SC 989, that in a suit for declaration with consequential relief falling under Section 7(iv)(c) of the Court-fees Act, 1870, the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of court fee and jurisdiction has to be ordinarily accepted. It is only in cases where it appears to the court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the court can examine the valuation and can revise the same." But the defendant has no right to raise such objection nor the court should dwelve into the matter after filing of written statement on evidence. The law on this aspect, thus, should be taken to be as under: