KHEM RAJ Vs. HEM RAJ

JUDGEMENT

(1.) THIS is a civil second appeal and arises out of a suit brought by Hem Raj for dissolution of partnership and rendition of accounts. The relief claimed in the plaint was valued by the plaintiff at Rs. 305/ - for the purposes of court -fee and jurisdiction. The plaintiffs suit was decreed against one of the defendants Khem Raj for a sum of Rs. 7,762/11/ - and the decree was executable on payment of court -fee on the amount decreed. Khem Raj defendant went up in appeal before the Additional District Judge, Jammu and paid Court -fee on the value fixed by the plaintiff for the purpose of jurisdiction and court -fee in the plaint i.e., on Rs. 305/ -. A preliminary objection was taken by the plaintiff -respondent that the memorandum of appeal was not properly stamped and that the ad valorem court -fee ought to have been paid by the defendant -appellant on the decretal, amount of Rs. 7762/ -117 -. This preliminary objection found favour with the lower appellate Court and the appellant was asked to pay a sum of Rs. 592/8/ - as court -fee on the decretal amount and as he had paid Rs. 23/47 - he was ordered to make up the deficiency in court -fee up to 23 -11 -1955. Against this order the defendant has come up in appeal to this Court.

(2.) THE sole question for determination in this appeal is whether the defendant -appellant had to pay court -fee on the decretal amount or on the tentative value of the suit fixed by the plaintiff in the plaint. The argument of the counsel for the appellant is that the appeal is the continuation of the suit and, therefore, the value of the suit, as put in the plaint, has to be taken into consideration in fixing the court -fee in appeal. He has relied on a ruling Chinakannu pillai v. Gomath Ammal, 1954 Trav -C 43 AIR V41 A. In the that case it was held that when in a suit for accounts the plaintiff complains that the trial Court has not made the defendant liable for all the amounts he is truly liable for, it is open to the plaintiff to have the whole case re -opened in appeal from the final decree on court -fee paid on a national valuation. This authority is not applicable to the present case. In that case the plaintiff on appeal wanted the whole case to be re -opened as he found the clecree passed by the trial Court insufficient. He did not seek to set aside the decree already passed but wanted his decretal amount to be enhanced after going into the accounts. In that case the plaintiff could not know as to what would be the amount due to him after taking the accounts and, therefore, it was held that the plaintiff could file the appeal by paying court -fee on the tentative value of the suit fixed in the plaint.

(3.) SECTION 7ivf, Court -fees Act applies to suits where the dispute relates to a right to taking of accounts and does not apply to appeals where a decree for a definite amount is prayed for or is challenged. When a plaintiff brings a suit for accounts he cannot know what the result of the accounts is likely to be and, therefore, under S. 7 iv f he has a right to place his own value on the relief claimed but this right to place his own value on the relief is limited to cases where the relief sought is one for accounts. But an appeal arising from such a suit may not fall under S. 7iv f, Court -fees Act. There may be a final decree passed for a definite amount against one of the parties and the appeal from such a decree will not be governed by S. 7 iv f, Court -fees Act. There the appellant, if he wants to get rid of the decretal amount, will have to pay ad valorem court -fee. The dispute in appeal would no longer be of taking of accounts but would relate to a definite sum of money which is decreed against the appellant. The provision of the Court -fees Act applicable in such a case would be the 1st Article of the 1st Schedule of the Court -fees Act under which ad valorem court -fee on the decretal amount will have to be paid by the appellant as he wants the appellate Court to set aside that decree. In the present case the decree which has been passed against the defendant is for Rs. 7,762/ll/ -and he wants that this decree should be set aside. It is, therefore necessary for him to pay the court -fee on that amount. In support of this view reliance may be placed upon a ruling of the Bombay High Court reported as Kashiram Senu v. Ranglal Motilalshet, 1941 Bom 242 AIR V28 B. A similar question arose in that case and the following remarks are made by their Lordships of the Bombay High Court: "No doubt in the plaint the plaintiff was entitled to place his own value on the relief claimed, because he could not know what the result of taking an account was likely to be. If the plaintiffs suit had failed and he had appealed against the refusal to take an account, the appeal would have related solely to a right to an account, and I agree that the appellant might have placed his own value on the memorandum of appeal. But as the suit resulted in a decree for a certain amount against the plaintiff, it seems to me that the appeal is not merely in relation to an account, but is really an appeal against a money decree, and he must at any rate stamp his memorandum of appeal with an ad valorem stamp in respect of the amount of the decree, which he seeks to have set aside". The same was the view taken by Rankin C. J. in Kantichandra v. Radha Raman, 1929 Cal 815 AIR V16 B land by the Full Bench of the Madras High Court in. In re Dhanukodi Nayakkar, 1938 Mad 435 AIR V25 FB D. The lower appellate Court, in our opinion, has rightly held that the defendant is liable to pay ad valorem court fee on the decretal amount which he seeks to set aside.