THILAGAMMAL Vs. ELANGO

JUDGEMENT

(1.) This civil miscellaneous appeal is against an order rejecting an application filed by the appellant under O.33, R.1, C.P.C. for permission to file a suit as a person in indigent circumstances. The suit is filed by the appellant against her husband who is the first defendant and an alienee from him, the second defendant, for recovery of maintenance and for payment of amounts for clothing and residence. The amounts claimed in the petition relate to maintenance, both past and future. The court below had dismissed the application on the ground that the petitioner has suppressed relevant materials and that she has not come to court in good faith in filing the application for permission to file the suit as an indigent person. He has relied upon certain documents produced by the respondents and also the case of the respondents that the petitioner was doing tailoring business and earning a sum of Rs. 300 per month.

(2.) When the appeal was taken up for hearing, learned counsel for the respondents raised a preliminary objection that the appeal would not lie in this Court, as the value of the proposed suit is less than Rs. 30,000/- and it should be filed only in the District Court. But, I find from the certified copy of the petition that the suit has been valued at Rs. 36,000/- and odd. According to learned counsel for the respondents, the valuation of the amounts claimed as due for clothing and residence for a period of three years prior to the filing of the suit at Rs. 3000 and Rs. 3600 having been calculated at the rate of five times the amounts actually claimed in the proceedings is erroneous. According to learned counsel, the value of the claim for the past should have been made only under S.22 of the Court-fees Act, as it is a claim for money. Therefore, the value should have been at the amount actually claimed. Learned counsel further stated that even with regard to the future, the claim for clothing and residence cannot be treated as a claim for annuity and it should be treated as a claim for maintenance and, therefore, the appellant is wrong in valuing the suit at five times the amount claimed per annum. Even if the first part of the contention that for the past, the claim should be treated as a claim for money and the value of the proceedings should be fixed at the amount actually claimed for the past three years is accepted, the value of the two claims at Rs. 3000/- and Rs. 3,600/respectively would be erroneous and the correct value would be only Rs. 600/- and Rs. 720/- respectively. Even then the value of the suit is more than Rs. 30,000/-. However, the contention with regard to future that the claim cannot be treated as one for annuity and it should be treated as only one for maintenance, cannot be gone into at this stage. The respondents did not raise any objection as to the valuation of the claim in the court below. The only contest was with reference to the capacity of the appellant to pay the court fee due. For the purpose of fixing the forum of appeal, the value mentioned in the petition in the court below which remained unchallenged is the only relevant factor. This proposition can be culled out from the decision of a Full Bench of this Court in Putta Kannayya Chetti v. Rudrapatta Venkatanarasayya, ILR 40 Mad 1. It was held therein that the amount or value of the subject-matter as fixed in the plaint should determine the court to which the appeal lies. In view of that decision, the contention urged by learned counsel for respondents in this regard cannot be accepted.

(3.) Learned counsel for the respondents relies upon the decision in Neelamma v. A. Marappa, 70 Mad LJ 128 for the proposition that the claim for clothing and residence would fall only under maintenance and it cannot be treated as annuity as it is not based on a grant. The decision cited does not lay down any such proposition of law. As I have stated earlier, that question cannot be decided at this stage for determining the forum of appeal.