SREE RAJAH VASI REDDI SRICHANDRA MOULESWARA PRASADA BAHADUR, ZAMINDAR GARU Vs. SECRETARY OF STATE FOR INDIA INCOUNCIL REPRESENTED BY THE COLLECTOR OF KISTNA AT MASULIPATAM

JUDGEMENT

(1.) Of the above petitions C.M.Ps. Nos. 1338 and 1339 of 1929 are applications for leave to appeal to the Privy Council against our judgments and decrees in A.S. Nos. 244 and 245 of 1922, respectively. C.M.P. No. 1340 of 1929 is an application under Order 45, Rule 4 of the Civil Procedure Code for a consolidation of the other petitions for purposes of pecuniary valuation and hearing. It is convenient to take up the third petition in the first instance, as the disposal of the other two petitions depends upon the disposal of this to a certain extent. Under Order 45, Rule 4 of the Civil Procedure Code we have power to consolidate the two suits for purposes of valuation, if they are decided by the same judgment. In the High Court they are undoubtedly decided by the same judgment, but it is objected by the learned Government Pleader that they were not decided by the same judgment in the Lower Court and therefore Order 45, Rule 4 does not apply. But in the first place I think the word "judgment" in Order 45, Rule 4 means the judgment appealed against and has nothing to do with the judgments of the Courts below. (Vide Deokinandan Prasad V/s. Narsing Rant (1921) 6 Pat.L.J. 97.) It is true that if this condition is satisfied, we consolidate not merely the appeals before us but all the proceedings in the suits. Moreover, a comparison of the so-called separate judgments of the first Court shows that the second judgment in A.S. No. 245 is practically a copy of the first Court's judgment re-written omitting a few sentences or paragraphs. Except that two sentences in the third sub-paragraph of paragraph 2 are omitted and paragraph 4 (the summary of the 3 defendant's written statement which is unnecessary for the other cases) is also omitted, the judgment is identical up to paragraph 22. Paragraph 23 in the first case is not reproduced in the second case as it refers to a point which does not arise in the second case. The rest of the judgment is again identical. In a matter of this kind we think we should look to "the spirit of the rule and not the letter. This is the view taken by the learned Judges of the Bombay High Court in Jivangiri V/s. Gajanan Narayan (1926) I.L.R. 50 B. 753. I think that the judgments of the Lower Court must be regarded as the same judgment and therefore the objection of the learned Government Pleader is disallowed. We are prepared to consolidate the value of the suits if it is of any use to the petitioner.

(2.) This leads us to the next question whether, even after the consolidation, the value of the two suits together exceeds Rs. 10,000. When these petitions came on for disposal before us last time, we called for a report from the Subordinate Judge of Bezwada as to the value of the lands now and at the time of the suits.

(3.) In the view I now take, probably it would have been unnecessary to call for such a report as to the valuation of the lands at the time of the suit if an order was passed on the petition for consolidation. But, at that time, we passed no orders on the petition for consolidation. We simply said we would call for a report and dispose of the petition after the report is received. The report of the Subordinate Judge now is that the value of the lands in the first suit is Rs. 3,954, and in the second suit Rs. 5,868 omitting annas and pies. These values together with the value of the mesne profits claimed by the plaintiff prior to the plaint will certainly make the value Rs. 10,000. But the value of the two suits at the time of the suit does not amount to Rs. 10,000 according to his present report. In the first case he found the value to be Rs. 3,217 and in the second case he found it to be Rs. 4,085. These two values with the amount of mesne profits claimed do not bring the value up to Rs. 10,000. It is claimed by the learned Advocate-General appearing for the petitioner that it is not open to the respondent to go below the value given to these suits in the plaint because he adopted those values for the purposes of choosing the forum for his appeal when he filed the appeals from the decision of the Subordinate Judge to the High Court. If the valuation of the two suits were less than Rs. 5,000, the Government's appeals would lie in the District Court of Kistna and not in the High Court. It is only because the value of each of the two suits was more than Rs. 5,000 that the appeals lay to the High Court. The Government did not object to the valuation of the plaint in the written statement; and adopting the value of the suits as valued by the plaint they filed appeals to the High Court. It is, therefore, contended by the learned Advocate-General that it is not open to him to say that the values were less. He relies on the decision of the Privy Council in Kristo Indro Saha V/s. Huromonee Dassee (1873) L.R. 1 I.A. 84. The learned Government Pleader seeks to distinguish this case on the ground that the principle mentioned therein, namely, that the opposite party when adopting the plaintiff's valuation cannot reprobate it afterwards, applies only where the valuation of the plaint was a valuation based on the market value and not under the rules mentioned in the Court Fees Act. The decision in Kristo Indro Saha v. Huromonee Dassee (1873) L.R. 1 I.A. 84 was followed by us in Chelasani Raitayya V/s. Anne Brahmayya and also in Mallapudi Venkatarayudu V/s. Mallina Venkanna (1927) 104 I.C. 577. But these decisions do not help us to decide the distinction now drawn by the learned Government Pleader. This principle was applied by Sir Lawrence Jenkins, C.J., in another case in Kumar Basanta Kumar Roy V/s. The Secretary of State for India in Council (1910) 14 C.W.N. 872. The learned Advocate-General points out v in reply to the Government Pleader that in the case in Kristo Indro Saha V/s. Huromonee Dassee (1873) L.R. 1 I.A. 84 the valuation made by the plaintiff which the defendant had adopted for his appeal and which afterwards was opposed by very strong affidavits was itself a Court-fee valuation 15 times the profits of the land, and the Court Fees Act then in force is the same as the Court Fees Act in force now. But this aspect of the question was not discussed or dealt with by the learned Judges who disposed of the petition. But we cannot assume that the aspect was not present in the mind of their Lordships. About the same time the same Lordships of the Privy Council disposed of another case on a similar question in Baboo Lekraj Roy V/s. Kanhya Singh (1874) L.R. 1 I.A. 317. The interval between the two judgments is five months. In the second case it was held that a party is not precluded from showing that the market value is higher than the Court-fee valuation which he adopts for purposes of stamp duty. These two cases together were discussed by Sir Lawrence Jenkins, C.J. in the Calcutta case already referred to Kumar Basanta Kumar Roy V/s. The Secretary of State for India in Council (1910) 14 C.W.N. 872. At page 873 His Lordship observes: But this involves no conflict of opinion: indeed it may be pointed out that in both the cases I have mentioned the judgment was delivered by Sir James Colville and the members of the Board were the same. And the distinction is obvious for in the earlier case the endeavour was to lower the value of the subject-matter and this was made by one who had adopted it for the purpose of the previous appeal preferred by him so that the principle that a party cannot approbate and reprobate governed, in the other cases which are collected in Hari Mohan Misser V/s. Surendra Narain Singh (1903) I.L.R. 31 C. 301 the endeavour was to raise the value and this was made in circumstances where that principle could not be invoked. 1 therefore hold that we must take the value of the property as that laid in the plaint and adopted by the respondents for the purposes of the appeal to this Court.