STATE OF ANDHRA Vs. GANDI VENKATARATNAM

JUDGEMENT

(1.) This is a defendant's petition for revision under section 115, Civil Procedure Code of the lower court's order, allowing the plaintiff-respondent's application made under section 152, Civil Procedure Code to substitute "Rs. 100" for "Rs. 450" allowed as pleader's fees in the decree.

(2.) No doubt the learned Subordinate Judge had jurisdiction under section 152 to amend the decree, if there was a clerical or arithmetical or accidental error. But his order does not disclose how he came to the conclusion that there was such an error in the decree. He has merely said on this aspect of the matter, "I feel it just and proper to allow the fee as per rules. The fee that is allowable is only Rs. 100 He has not indicated the rule under which he calculated the correct fee as Rs. 100. Sri N.V.B. Sankararao, the learned counsel for the respondent, says that the fees of Rs. 100 must have been fixed by the lower court, as the suit was a declaratory suit, the subject matter of which was not capable of valuation and which therefore came under rule 37 (b) (2) of the rules under the Legal Practitioners Act 1. It is true that the suit was a declaratory suit to establish a right of occupancy in a ryoti land. But the market value of the land for purposes of jurisdiction was mentioned in the plaint as Rs. 7,000. The land was the subject matter in respect of which the relief was claimed and it can by no stretch of imagination be deemed incapable of valuation. Where the subject matter in respect of which the relief claimed in a declaratory suit is capable of valuation, rule 37 (b) (1) applies and the fees is according to the scale prescribed under rule 31 (II). Under rule 31 (II) the fee amounts to Rs. 450, when the value of the subject matter is Rs. 7,000. It is clear, therefore, that the learned Subordinate Judge has acted arbitrarily or capriciously in holding without quoting or considering the relevant rules, that the fee allowable, is only Rs. 100/-. There was really no error which could be corrected under section 152, Civil Procedure Code.

(3.) Sri N.V.B. Sankara Rao, urges that the revision ought not to be entertained as the petitioner has a remedy by way of an appeal against the amended decree. He relies on the decision in Adinarayan Rao Naidu v. Kodanda Ramayya Naidu AIR 1940 Mad. 538 where it was observed that