LASSI GANAI Vs. MOHD ALLAYI

JUDGEMENT

(1.) THIS is a revision application directed against an order of the Senior Subordinate Judge, Kashmir, by which the memorandum of appeal filed by the applicant before him against a decree and judgment of the Munsiff, Anantnag, dismissing the applicants suit for specific performance of an agreement to sell 12 kanals of land comprised in Khewat No. 49 in village Mela Awara, Tehsil Kulgam, and for recovery of possession of the same, had been returned to him for presentation to the proper Court after making good the deficiency in the court - fee.

(2.) THE plaintiff applicant had valued his suit for purposes of court - fee under S. 7(v)(b), Court - fees Act, at eight times the land revenue at which the land was assessed, namely Rs. 45/ - , and at fifty times the land revenue, namely Rs. 281/4/ - , for purposes of jurisdiction under the rules made under the Suits Valuation Act. Before the trial Court an objection was raised as to the insufficiency of court - fee. The trial Court, however, overruled the objection. Eventually the plaintiff applicants suit was dismissed on merits. On appeal the defendant non - applicant again raised the question of court - fee and after hearing the pnies the learned Senior Subordinate Judge came to the conclusion that as the suit was one for specific performance of contract of sale it fell under S. 7(x)(a), Court - fees Act, by which court - fee is payable according to the amount of the consideration which was Rs. 600/ - in this case and not under S. 7(v)(b) of that Act. He further held that as under S. 8, Suits Valuation Act, the value determinable for the computation of court - fees and the value for purposes of jurisdiction is the same, the value for purposes of jurisdiction in this suit was also Rs. 600/ - and as that Court could hear appeals from the Court of a Munsiff only where the value of original suit, in which a decree or order was made, did not exceed Rs. 500/ - it had no jurisdiction to try the appeal and, therefore, returned it for presentation to the competent Court.

(3.) THE learned counsel for the applicant has strongly contended that the order made by the Senior Subordinate Judge was not correct and that the forum of appeal is determined by the value of the original suit as set out in the plaint and not by an order of the lower appellate Court by which category of the suit had been changed for the purposes of court - fees. It was also argued that the additional court - fee could not be demanded by the lower appellate Court under S. 12(ii), Court - fees Act. It is true that the Senior Subordinate Judge has made a reference to S. 12, Court - fees Act, in his order and there is a general consensus of opinion that the question under what category a suit or appeal falls for purposes of court - fee does not come within the purview of this section. But the non - applicability of this section does not mean that an appellate Court cannot decide the question under what particular provision of the Court - fees Act a suit falls and cannot demand additional court - fee if, as a result of the change of the category of a suit, additional fee becomes necessary. The learned counsel for the applicant had to concede this point in the end. The learned counsel despite conceding this position urged that the value of the suit for purposes of jurisdiction in appeal could not be automatically changed and the only proper order that the Senior Subordinate Judge could have made was to remand the case to the trial Court with the observation that the plaintiff applicant should be asked to amend his plaint in view of the change in the category of the suit for purposes of court - fee. The learned counsel for the applicant also conceded that the case actually came within the ambit of S. 7(x)(a), Court - fees Act, and not under S. 7(v)(b) thereof. But this he contended did not change the forum of appeal which was fixed under the Civil Courts Act. For this purpose the learned counsel for the applicant placed reliance on - Tara Chand v. Collector of Aligarh, AIR 1939 All 552 (A); - Harihar Das v. Raj Kumar Mukherji, AIR 1923 Cal 405 (B); - M. Ramanna v. M. Subbarayudu, AIR 1951 Mad 886 (2) (C); - Kandhai Mahton v. Prasad Mahton, AIR 1952 Pat 290 (D) and - Gangaram v. L. Madan Lal Kapur, AIR 1953 J and K 13 (E). In - AIR 1939 All 552 (A), it appears that objection as to the improper valuation of the suit had not been at all taken in the trial Court. Moreover the case did not come under S. 8, Suits Valuation Act, where the value for purposes of court - fee and for purposes of Jurisdiction is the same, but it came under S. 9, Suits Valuation Act, and the value for purposes of jurisdiction was to be determined under the rules made under that section. This case is, therefore, clearly distinguishable from the present one where the value for purposes both of court - fee and jurisdiction is the same under the Statute. AIR 1923 Cal 405 (B) is equally distinguishable. There the defendant did not challenge the averment made in the plaint and the trial proceeded on the assumption that the valuation made by the plaintiff was correct. The observation in this case, namely, the Legislature did not intend that the expression "the value of the original suit" in S. 21 means the real value of the subject - matter of the original suit, does not help the applicant very much because what is added to this observation is "Before the appellate stage is reached, the suit must already have been tried and the value of the suit fixed either by agreement of parties or on adjudication by the Court." In the present case we see that the objection regarding court - fee was taken in the trial Court which was overruled and the value of the suit was then fixed by the lower appellate Court for purposes of court - fee and this adjudication ipso facto changed the value of the suit for purposes of jurisdiction under S. 8, Suits Valuation Act. AIR 1951 Mad 886 (2) (C) and - AIR 1952 Pat 290 (D) are also not very helpful to the applicant. AIR 1953 J and K 13 (E) also does not help the applicant. All that it says is that for determining the appellate forum in account suits, wherein the plaintiff has the right to value his suit tentatively, the appellate forum will be determined not by the amount found due to the plaintiff or the defendant, but by the value which the plaintiff puts on the subject - matter of his suit in the plaint. This has very little to do with the facts of the present case.