LAKHSHMI NARAIN Vs. BHARAT SINGH

JUDGEMENT

(1.) A revision petition and a first appeal have been filed by Lakshmi Narain as alternatives in the following circumstances. Lakshmi Narain instituted a suit in the Court of the Commercial Sub-Judge at Delhi in February 1948 against Bharat Singh respondent for dissolution of partnership and rendition of accounts. In the plaint both for purposes of jurisdiction and court-fee the plaintiff valued tne relief sought by him at Rs. 130/-and paid court-fee accordingly. As required, however, by the provisions of Order VII, Rule 2, Civil p. O., to state approximately the amount sued for, the plaintiff has said in the plaint that he expected that a sum exceeding Rs. 1,25,000/- would be found due to him on going into the accounts, and in the preliminary stages of the suit the objection was raised by the defendant that as the plaintiff had disclosed this large figure as the amount he had ill mind when he brought the suit he could not be allowed arbitrarily to value the relief sought) by him at the nominal figure of Rs. 130/- for purposes of jurisdiction and Court-fee, but must be made to value the suit at Rs. l,25,000/- for both these purposes and pay Court-fee accordingly. This contention was accepted by the learned Sub-Judge who passed an order on the llth of June 1948 that the plaintiff must value the suit for purposes of jurisdiction at Rs. 1,25,000/- and also pay 'ad valorem' Court-fee on this amount. He was accordingly ordered by the 28th of June 1948 to mate good the deficiency in Court-fee. As he failed to do so an order was passed on that date rejecting the plaint under Order VII, Rule 11, Civil P. C. The plaintiff filed an appeal in the Court of the Senior Sub-Judge in which he again fixed the value for both purposes at Rs. 130/-. The objection was raised by the defendant-respondent that the jurisdictional value of the appeal was Rs. 1,25,000/- and that therefore the learned Senior Sub-judge bad no jurisdiction to entertain the appeal. Without dealing with the question of Court-fee at all the learned Senior Sub Judge held that the Jurisdictional value of the suit had rightly been fixed by the trial Court at Rs. 1,25,000/- and that therefore he had no jurisdiction to entertain the appeal, the memorandum of appeal being accordingly returned for presentation to the proper Court. There was apparently a long delay in the disposal of the appeal and this order was passed on the 2nd of June 1949. The. appeal was presented in this Court as a regular first appeal on the 16th of June 1949 and later on the 14th of July 1949 an application was filed under Section 5 of the Indian Limitation Act. Also, on the 11th of July, 1949 a revision petition was filed against the order of the Senior Sub-Judge holding that he had no jurisdiction to entertain the appeal tiled in his Court and returning the memorandum of Appeal.

(2.) Two preliminary objections have been raised to the hearing of the appeal - firstly, that it Is barred by time, and secondly that, it has not been properly valued. There is no doubt that the period of 90 days, even allowing for the time taken in obtaining copies, had elapsed after the decree of the trial Court long before the filing of the appeal in this Court, but the delay is mainly due to the fact that the appeal filed in the Court of the Senior Subordinate Judge remained rending there for nearly a year before he passed his order returning the memorandum of appeal and the appeal was then filed in this Court 14 days later. The question whether the time should be extended in these circumstances under Section 5 of the Limitation Act appears to me to depend to a very great extent on whether or not; the plaintiff was right in his original contention that he was entitled to value his suit for all purposes at Rs. 130. If in fact his valuation was correct then his appeal was properly filed in the Court of the Senior Subordinate Judge, and the latter's order returning the memorandum of appeal was wrong. The preliminary objection regarding court-fee on the appeal also seems to me to be one on which it is not possible to give any proper decision without deciding the main question in issue. There are undoubtedly a number of authorities of other High Courts regarding the amount of court-fee which is payable on an appeal against an order rejecting the plaint under Order VII, Rule 11, Civil Procedure Code, one view, that of the Nagpur and Madras High Courts, being that the court-fee payable is 'ad valorem' on the difference between the court-fee originally paid by the plaintiff and the amount of court-fee demanded from him by the trial Court. Another view is that on such an appeal the full court-fee demanded, by the trial Court is payable. It seems to me, however, that on this point a more reasonable and sounder view has been taken by a Division Bench in 'Amarta Lal Kumar V. Sisir Kumar', AIR 1926 Cal 427, which relates to a suit in which the plaintiff had valued his suit for purposes of court-fee at Rs. 60/- and the trial Court had held that he must pay court-fee on a sum exceeding Rs. 9,000/-. His plaint was rejected when he failed to make good the deficiency and he had filed an appeal in the Court of the District Judge valued in the same manner as his plaint. His appeal had been summarily rejected by the District Judge as the memorandum of appeal was insufficiently stamped, and it was held by the High Court that the appellate Court was bound to go into the question as to the true value of the properties, and that without coming to a finding on this question it could not hold that the appeal was insufficiently stamped. It seems to me that in any case the objections regarding the court-fee and jurisdiction do not apply in the case of the revision petition, for which there is no statutory period of limitation, and although the practice of the Court is not to admit revision petitions filed after the ordinary period of limitation for appeals, this is obviously a case in which there were good reasons for filing the revision petition at a very late stage and therefore its merits should be adjudicated upon.

(3.) A suit for rendition of accounts falls under Section 7 (iv) (f) of the Court-fees Act which reads: