KARUPPANNA GOUNDER Vs. CHENNIMALAI GOUNDER

JUDGEMENT

(1.) THE aggrieved plaintiff who is not satisfied with the order passed by the learned District Judge, East Coimbatore on the question of adequacy of court-fee paid, is the petitioner.

(2.) IT is common ground that the petitioner secured a decree for possession and for mesne profits, past and future. The future mesne profits were ascertained by the trial court in an enquiry under O. 20, R. 12, C. P. C. As a result of such an enquiry into mesne profits, the ultimate decree was passed. But while passing the decree, the trial Court was of the view that the plaintiff was not entitled to the rate of mesne profits as claimed but to a lesser amount. Aggrieved by this, the plaintiff preferred an appeal to the District Court. the learned District Judge passed the following order: 'court-fee is to be paid on the difference at the rate of Rs. 1,700 from the date of suit till the date of appeal. Returned. Time 3 weeks'.

(3.) MR. Mani challenges this order on the following grounds: The excess mesne profits which he is claiming in the appeal is yet to be determined by the appellate court, and it is therefore premature to call on the plaintiff to pay or suffer an additional court-fee on the basis of the increased mesne profits claimed before the court below which ultimately was not granted to him. Secondly, it is said that as an appeal is a continuation of the suit and as under the provisions of the Tamil Nadu Court-fees Act. to wit, S. 44 read with S. 52, the question of the court-fee, if any, payable by him on the increased amount as fixed by the court below, would only arise after final ascertainment of such quantum by the appellate court at the time of the final disposal of the appeal. On the other hand, the learned Government Pleader would say that as the appeal is against a final decree as such, the party challenging the same should pay the court-fee on the subject-matter of that appeal and he cannot wait till the profits are once again ascertained in the appellate court and take advantage of such ascertainment, if he could take any such advantage of it a all. Reliance is placed upon the decisions of this court and a decision of the Andhra Pradesh high Court. In a case where a litigant seeks for a primary relief and the ancillary relief of mesne profits, he has the option to ask for past mesne profits as well as for the ascertainment or for the grant of future mesne profits. If no relief is asked for regarding future mesne profits, no question arises. But if once such relief is asked for, it is now well settled, having regard to the scheme of the provisions of the Civil Procedure Code read with the provisions of the Court fees Act, the plaintiff only need pay court-fee on past mesne profits and on the date when he enters into the patrols of the court with his list he need not pay and court-fee on the future mesne profits, though claimed by him. It is to alleviate any inconvenience or the escape in the matter of payment of court-fees, S. 44 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (hereinafter referred to as the Court-fees Act) has made it clear that if the profits ascertained to be due to the plaintiff are in excess of the profits as approximately estimated and sued for, no decree shall be passed until the difference between the fee actually paid and the fee that would have been payable had the suit comprised the whole of the profits so ascertained is paid. A similar provision regarding the passing of the final decree is also provided for in s. 44 (2 ). Thus, the State has secured for itself a right to recover court-fee, once an apparent escapement in its payment occurs in suits for mesne profits. In the case under consideration it is not disputed that the future mesne profits were also ascertained and the trial court found that a particular amount was payable as and towards future mesne profits. But on the interpretation of the pleadings in the instant case, the trial court did not grant such a decree in favour of the plaintiff, though it found that a particular amount was payable to him, because it was of the view that the plaintiff is only entitled to an amount lesser than the amount found by it. In any event such a decree for mesne profits granted by the trial court ought to be viewed as a final decree under O. 20, R. 12 (2), c. P. C. which provides that where an enquiry under Cl. (b) or Cl. (c) is held and a final decree in respect of the mesne profits is passed in accordance with the result of such inquiry, it should be terminologically called a final decree. That it is legally and factually a final decree gained acceptance by a pronouncement of a Division Bench of this court in Pitta Balama Naidu v. Pitta Songa Naidu, (1922) 42 Mad LJ 184 : (AIR 1923 Mad 19 ). In a similar context, the Division bench held that the appeals therein must be treated as appeals against a final decree under S. 20, R. 12 (2), C. P. C. and an ad valorem court-fee must be charged under Art. 1 of Schedule 1 of the Court Fees Act, calculated on the amount of mesne profits in dispute (underlining mine ). This was followed by a decision of the Andhra Pradesh High Court in In re Kudappa Subbamma, AIR 1957 Andh Pra 6. Subba Rao C. J. speaking for the Bench, observed as follows:--