ABDUL RAZACK SAHEB Vs. SYED ABDUL JALEEL SAHEB

JUDGEMENT

(1.) The Suit O. S. No. 69/48-49 on the file of the Additional District Judge, Bangalore, out of which this appeal arises, was brought for dissolution of a partnership and for taking of accounts of the same. The plaintiffs valued their claim in their plaint at Rs. 10,500/- under Section 4(iv)(f). Mysore Court-fees Act and paid Court-fee thereon. The defendants admitted the partnership but denied their liability to pay anything to the plaintiffs. They also pleaded that the latter it was who had failed to render proper accounts of the firm. A preliminary decree was passed on 19-8-1950 declaring that the firm should stand dissolved as from 19-3-48 and directing accounts to be taken. No appeal was filed against that preliminary decree. Subsequently, after taking accounts through a Commissioner, a final decree was made on 16-1-53 and the present regular appeal is filed against the final decree. By this decree the plaintiffs are directed to pay Rs. 17,591-5-4 to the defendants respondents. The plaintiffs 2, 3 and 4, who have now appealed, have valued this appeal at Rs. 10,500/- the same value as had been put by them in the plaint in the trial Court and paid court-fee un that sum.

(2.) The appellants have been asked to pay Court-fee on the amount mentioned in the decree viz., Rs. 17,591-5-4. It is contended by them that as they are plaintiffs they can value the appeal in the same way as they did in the suit under Section 4(iv)(f), Court-fees Act. It is of course clear that there is a money decree now outstanding against them for a definite sum of money which they want to get rid of by this appeal and which would otherwise become conclusive without any further accounting or investigation.

(3.) In support of his position the learned Counsel for the appellants has relied strongly on --'Ramadass v. Appala Narasayya', AIR 1943 Mad 685 (A). That case no doubt supports the appellants and the circumstances of that case were exactly similar to those of the present case and was an appeal from a final decree. In that case Shahabuddin J. sitting alone purported to follow an earlier case of the Madras High Court in --'In re, Dhamukodi Nayakkar'. AIR 1938 Mad 435 (FB) (B), in preference to -- 'Kashiram Senu v. Ranglal Motilal', AIR 1941 Bom 242 (C), and he also relied, on certain observations of the Privy Council in -- 'Faizullah Khan v. Mouladad Khan', AIR 1929 P. C. 147 (D). He held that in the matter of valuation of an appeal under Section 7(iv)(f). Court-fees Act of 1870, (which corresponds to Section 4(iv)(f) of our Act), the plaintiff-appellant, against whom a final decree for a much larger sum than that for which he had valued his claim in the plaint against the defendant had been made had greater freedom than the defendant-appellant and could value his reliefs in the appeal also in the same manner in which he could value it in the plaint, 3A. In 'AIR 1938 Mad 435 (FB) (B)', on which he relies Leach C. J., with whom the two other members forming the Pull Bench agreed, held that Section 7 gives greater freedom to plaintiff-appellants than it does to defendant-appellants in the matter of valuing an appeal memo. He observed that when a defendant-appellant appeals against a final decree he knows exactly the value of his relief and must pay a court-fee on the amount of the decree passed against him except in cases where he appealed only against a portion of the decree. Similarly a defendant appealing from a preliminary decree for an account has ordinarily to stamp his memorandum according to the plaintiff's valuation. He thought that by compelling a defendant to follow a plaintiff's valuation hardship was not likely to result as the plaintiff would never be anxious to pay any more court-fee than was necessary. Their Lordships approved of some earlier cases decided by the Madras High Court including --'Srinivasa Charlu v. Perindevamma', AIR 1917 Mad 668 (FB) (E) and overruled -- 'In re Venkatanandam', AIR 1933 Mad 330 (F) which had taken a different view. At page 438 the learned Chief Justice has remarked that in the case before them, according to the heading of the memorandum of appeal, the appeal related only to the 'preliminary decree' for an account though at the end of the memorandum there was a note which suggested that the appeal was from a combined preliminary and final decree passed by the appellate Court in a suit for taking of accounts; and it was impossible to state accurately what the net liability of the appellants would be on a proper taking of the accounts, accepting the contention raised in the memorandum of grounds. His Lordship has also referred to the longstanding practice in that Court and the natural reluctance to depart from it when it was not shown that the same was against law. In the course of the arguments it was intimated for the appellants that the intention was to limit the appeal to the 'preliminary decree', because if that was set aside the final decree would also fail. Therefore the learned Judges held that they saw no objection to the appellants treating their appeal as an appeal against the preliminary decree, if they so desired, but they would have to value their relief in accordance with the valuation in the plaint. This decision cannot be said to lend much support to the conclusion arrived at in AIR 1943 Mad 685 (A).