KALI KAMAL MAITRA Vs. FAZLUR RAHMAN KHAN CHOWDHRY

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs in a suit for recovery of mesne profits, The plaintiffs valued their claim at Rs. 300 for the purposes of ascertainment of the jurisdiction of the Court and the amount of Court-fees payable; they also stated that if the amount of mesne profits was found to be greater than Rs. 300, they might be awarded a decree for the excess amount upon payment of additional Court-fees. The Court of first instance made a decree for Rs. 223 in favour of the plaintiffs. Upon appeal this decree has been affirmed by the Subordinate Judge. The plaintiffs have now appealed to this Court.

(2.) On behalf of the respondents a preliminary objection has been taken to the hearing of the appeal on the ground that it is incompetent under the provisions of Section 586 of the Civil Procedure Code of 1882. That section provides that no second appeal shall lie in any suit of the nature cognizable in a Court of Small Causes when the amount or value of the subject- matter of the original suit does not exceed Rs. 500. It has not been disputed before us, and in view of the decision of the Full Bench of this Court in the case of Kunjo Behary Singh v. Madhab Chandra Ghose 23 C. 884, it cannot be seriously disputed, that the nature of the suit is such as to make it cognizable in a Court of Small Causes. The sole question in controversy is, whether the amount or value of the subject-matter of the original suit does or does not exceed Rs. 500. The respondents contend that the value of the subject-matter of the original suit is less than Rs. 500 and they rely upon the statement in the plaint that for the purpose of ascertainment of the jurisdiction of the Court, the claim is valued at Rs. 300. In answer to this argument, it has been suggested by the learned Vakil for the appellants that as they valued their appeal to the Subordinate Judge at Rs. 357, the value of the subject-matter of the suit must be taken to be Rs. 580. The circumstances, under which the appeal of the plaintiffs to the Subordinate Judge came to be valued at Rs. 357, although the suit was valued at Rs. 309 and a decree for Rs. 223 was made in their favour by the Court of first instance, are of a somewhat exceptional character. It appears that in the original Court, a Com-missioner was appointed to ascertain the rates at which rent was payable in respect of the different classes of land. He submitted a report in which he stated that the plaintiffs were entitled to claim mesne-profits upon rental basis at certain rates. It is conceded that if the decree were made in favour of the plaintiffs on the basis of the report of the Commissioner, they would not have been entitled to more than Rs. 400. The Commissioner, however, stated in his report that the plaintiffs had put forward a claim before him to mesne-profits at a higher rate of rent, and we have been informed by the learned Vakil for the appellants that if the mesne-profits were assessed at this higher rate, the plaintiffs would have been entitled to a decree for Rs. 580. When the report of the Commissioner was submitted to the Court, the plaintiffs preferred objections there to, but they made no application for the amendment of the plaint. They did not ask for leave to increase the valuation of their claim nor did they offer to pay any additional Court-fees in respect of any excess amount.

(3.) The learned Vakil for the appellants has seriously suggested that the value of a suit does not depend upon the amount stated by the plaintiffs, but it depends upon the state of his mind. This argument is based upon an obvious fallacy.