ABDUL KUDUS Vs. ABDUL GANI

JUDGEMENT

(1.) This petition raises a question of the court-fee payable on an appeal preferred by the plaintiff against an order requiring him to pay a sum of Rs. 3,000 and odd being his share of debts binding the property, the possession of which has been decreed to him subject to this payment. The question is whether the plaintiff should value his appeal on the same basis as he valued his suit, namely, as if possession were the subject-matter, or whether he should value it on the basis of the value of the order which he seeks to get rid of in the appeal. Obviously, a contention such as that which has been raised before me would never be raised were it not for the fact that the suit itself has been filed on a fictitious value much less than its real value. Consequently, it is to the advantage of the petitioner to get the appeal relating to only a portion of the subject-matter of the suit valued at the value of the whole of the subject-matter of the suit. The absurdity of this position should not, in my opinion, govern the decision of the question at issue.

(2.) What is it which the appellant seeks to get rid of by means of his appeal? Quite clearly, it is not a decree refusing him possession, but a decree which, while recognising his right to possession, requires him to pay Rs. 3,000 and odd as a condition precedent to getting possession. Logically, therefore, the appeal should be valued at the value of the payment the necessity for which he desires to remove. Once this necessity is removed, the decree for possession which has already been granted to ham remains.

(3.) Numerous cases have been quoted before me. Those upon which the petitioner relies are all of, them cases in which the defendant has been granted a certain sum as compensation and appeals against the decree generally, asking for a larger sum of compensation or alternatively for the dismissal of the suit.