NEMICHAND TAVANAPPA KUDACHI Vs. JINNAPPA MAHADEV KUDACHI

JUDGEMENT

(1.) This appeal has been filed by the plaintiff against a final decree determining mesne profits under Rule 12 of Order 20 CPC. Although he had claimed mesne profits of Rs. 63,607-5-9 in his application before the Court below, the Court Decreed only a sum of Rs.5003-14 Ps. Aggrieved by this decree, the plaintiff-appellant has approached this Court in appeal by paying a Court fee of Rs.5 only on the Memorandum of Appeal. The. relief sought in appeal covers the entire difference between the amount claimed by him and that awarded by the lower. Court. When this appeal was called on for hearing a preliminary objection was taken on behalf of the contesting respondents that the Court fee paid was insufficient and the Memorandum of Appeal ought to have been valued on the basis of the relief claimed and ad valorem Court fee paid thereon. We are of the view that this objection of the respondents must be upheld.

(2.) In Sideshwari Prosed v. Ram Kumar Rai AIR. 1933 Pat. 234 a similar question arose for consideration James, J. has answered it thus : An appellant has to pay ad. valorem Court fee on the amount for which he seeks to avoid liability or an the amount by which he seeks to enhance the value of his decree. This rule applies to all appeals from decisions determining the amount of mesne profits whether the profits may have accrued before suit, or after the date of the institution of the suit.

(3.) A similar view has been taken by the Madras High Court in- Sinnapappal v. Subbanna Gourdar AIR. 1958 Mad. 414. following an earlier Division Bench decision of that Court in Balarama Naidu v. Sangan Naidu ILR. 45 Mad. 280. We agree respectfully with the above enunciations. The appellant, therefore is required to make good the deficiency in. the Court fee payable on this Memorandum of Appeal. It is, however, to be noted that the Court fee payable by the appellant shall be in accordance with the provisions of the Court Fees Act which was in force in Bombay Area, immediately prior to the date of the re-organisation of States, as the suit, out of which this appeal has arisen, was one instituted in the year 1951. The appellant is granted three months time from today to make good the deficit Court fee.