THANGA PANDIYAN Vs. S R PERIASWAMI THEVAR

JUDGEMENT

(1.) The plaintiff has filed this revision petition against the order of the lower court directing him to pay court fees on the market value of the property involved in this case. The 1st defendant is the plaintiffs father and the 2nd defendant is a stranger. The plaint property is alleged to belong to the plaintiff under a gift deed from his paternal uncle. This gift deed was in 1105 and at that time the plaintiff was a minor. It was stated that his father, the 1st defendant was looking after the property and collecting the income. It was also alleged in the plaint that as the plaintiff had to stay away from Shencotta for his education he had arranged with his father to collect the yield from the properties and to dispose of it as per his directions. On the ground that the 1st defendant was neither collecting the income properly, nor fully remitting to the plaintiff whatever amount that had been collected, the plaintiff wanted to terminate this arrangement and to collect the income and to conserve the yield from the properties. It was alleged, that in this, the plaintiff was obstructed by the 1st defendant. The 2nd defendant was also impleaded in the case as he had joined hands with the 1st defendant in obstructing the plaintiff. The 2nd defendant is stated to be a man of some influence in the locality. The suit was therefore for an injunction to restrain defendants 1 and 2 from obstructing the plaintiff in taking the yield of the plaint property. An alternative relief was also claimed that in case the defendants resisted or obstructed, the recovery of the plaint property may be ordered with future mesne profits at the rate of Rs. 4,000/- per annum from defendants 1 and 2. The plaintiff valued the suit for purpose of court fees under clause viii (8) of Schedule II of the Court Fees Act, and for purposes of jurisdiction at Rs. 4,000/-.

(2.) The learned Judge in whose court this case was pending had first passed an order that a fixed fee of Rs. 10/- was sufficient. But the question of court fees was again taken up for consideration, by his successor in office, who passed the present order that the plaintiff has to pay the court fees on the market value of the property. This petition is filed to revise that order.

(3.) It was first contended, that as the question relating to court fees had been finally decided by a court of competent jurisdiction that order was conclusive as between the parties and not liable to be revised. Under S.9 of the Court Fees Act, corresponding to S.12 of the Indian Act, every question relating to valuation, for the purpose of determining the amount of any fee chargeable on a plaint or memorandum of appeal, shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit. It is this final character of the order that is relied on by the petitioner to show that any consideration of the question is unwarranted. The first order of the court was that for the purpose of court fee the suit has to be valued under clause VIII (8) of the second Schedule of the Travancore Cochin Court Fees Act I of 1125 and that S.3 of the Act had no application. The Court therefore first decided under which category the suit would fall and then determined the amount of court fees required. In such cases, the general consensus of judicial opinion is that every question relating to the valuation referred only to the actual assessment or appraisement of the value of the suit or appeal, apart from the question as to whether the court fee is to depend on the value of the suit or appeal or as to the property according to which such value is to be assessed. It is, therefore, clear that the question under what category a suit or appeal falls for purpose of court fees is not within the purview of this section. The decisions reported in AIR 1942 Mad. 502 , AIR 1931 Bombay 234, AIR 1924 Calcutta 731, AIR 1919 Lah., 323, AIR 1941 Cal. 518 , and AIR 1938 Nag. 481 will support this view.