SHIVA KUNBI Vs. DASHRATH

JUDGEMENT

(1.) 1. This appeal was admitted provisionally and before it can be heard on merits two points in respect of it Require decision: one the question of limitation and the other court-fees. The question involved is whether the appeal is or is not time-barred by one day. A copy of the judgment was applied for on 3rd August 1931, and the applicant was told to appear on 10th August. The copy was ready on 10th August and the applicant did not appear on 10th August but appeared on 1st September on which day the copy was delivered to him. If he had appeared on 10th August, he would, by the ordinary rules of the Copying Department, have been allowed eight days as time requisite for obtaining a copy, namely, from 3rd to 10th August inclusive.

(2.) IT is contended on behalf of the respondent that the appellant is not entitled to count as time requisite for obtaining the copy of a decree or judgment the day on which he was instructed to appear either for the purpose of assertaining whether the copy was ready or for any other purpose, such as for giving extra information or paying a further advance, if he failed to appear on that day. It is contended that the 1st September was not the date fixed for delivery of the copy at all and therefore cannot be counted any more than the 10th August on which date the applicant was told to appear and failed to do so. In this connexion I have been referred to the judgment of Batten, A. J. C., in Lachman v. Kalya (1916) 12 NLR 66.

(3.) THE appeal is by the defendant in the trial Court. The plaintiff brought the suit under the provisions of Order 21, Rule 103, Civil P. C., and valued his claim at Rs. 360 at which he put the valuation of the field, and paid a court-fee stamp of Rs. 21. The defendant protested against this valuation and stated that the field was worth Rs. 2,800 and the court-fee should be paid on that amount. The matter was put in issue and it was found that the value was Rs. 1,500 and the plaintiff was directed to pay court-fees of Rs. 100: this he did and obtained a decree in his favour. In first appeal the defendant paid a court fee of Rs. 100 and did not raise the question of the correct valuation of the suit. In second appeal he claims that as the original suit was under Order 21, Rule 103, the proper court-fee was Rs. 10, although the parties paid larger fees in the lower Courts through a mistake. He consequently filed this appeal on a stamp of Rs. 10 only. There is no doubt, on the authorities cited, Dhond Sakharam Kulkarni v. Govind Babaji Kulkarni (1885) 9 Bom 20, Priya Das v. Vilayat Khan (1900) 22 All 384 and the Privy Council decision in Phul Kumari v. Ghanshyam Misra (1908) 35 Cal 202, that the appellant's contention is correct and that a fee of no more than Rs. 10 should have been levied in the trial Court. Under the provisions of Section 7, Court-fees Act, however it is clear that valuation for suits and appeals is to be constant and that the valuation of a particular relief in appeal remains unchanged whether that appeal be against the grant or refusal of the relief in the lower Court: Dhirajsingh v. Rajaram (1910) 6 NLR 164. In this case the high value which was placed on the relief claimed is duo almost entirely to the action of the present appellant himself who, by the contention which he raised, increased the court fee of Rs. 21 to one of Rs. 100 and would, if his plea would have been accepted in its entirety, have raised the amount much more. I do not consider that it would be in any way just or equitable to allow him, when it suits his own purpose, to reduce the fee when it is he who is the appellant. He must abide by the wrongful decision, in which he has acquiesced, and the value which he has himself inflated. The result is that before this appeal can be heard, the deficit of Rs. 90 in court-fees must be paid within 14 days of the date of this order.