HAJI ISHTIAQ AHMAD Vs. ABDUL SAMAD

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for accounts. It appears that three brothers named Abdul Karim, Abdus Samad and Muhammad Taqi were partners in business which was dissolved some time about the end of 1926. Muhammad Taqi went out of business and the remaining two partners, Abdul Karim and Abdus Samad, continued to carry on the business as partners. The plaintiffs case is that the new partnership terminated at the end of 1929 but, as the defendant failed to render accounts, the plaintiff prayed that the Court may direct him to do so. The suit was contested on various grounds, but a preliminary decree was passed on 1 September 1920, and the final decree followed it on 24 July 1934. The trial Court decreed the suit against the defendant for a sum of Rs. 7652-13.11. The learned District Judge modified the decree of the Court of first instance and reduced the amount to Rs. 3586.1-6. The plaintiffs now come to this Court in appeal. It may be mentioned that Abdul Karim, one of the partners, is now dead and the plaintiffs represent his share in the assets and liabilities of the business.

(2.) Learned Counsel for the appellants has argued that the learned District Judge had no jurisdiction to entertain the appeal as having regard to the valuation of the appeal and Section 21, Civil Courts Act, the appeal lay to this Court. The suit originally was valued at Rs. 130 and a court-fee of Rs. 10 was paid. It was stated in para. 7 of the plaint that further court-fee will be paid if any amount is found in excess as per account. The final decree was passed on 24 July 1934 for Rs. 7652-13-11. The final decree was amended and the claim was laid at the aforesaid amount under an order of the Court, dated 21 September 1934. The plaintiffs were called upon to deposit the deficit court-fee which was done. On these facts it is alleged that the real valuation of the suit should be deemed to be over Rs. 5000 and the provisional value given in the plaint should not betaken into account. In support of this argument learned Counsel for the appellants has referred to Ijjatulla Bhuyan V/s. Chandra Mohan Banerjee (1907) 34 Cal. 954. This was a suit for possession of land and mesne profits which was originally valued at a sum below Rs. 5000 and was instituted in the-Court of the Subordinate Judge but the amount actually found due inclusive of mesne profits payable by the defendant to the plaintiff was over Rs. 5000. The learned Judges held that the appeal lay to the High Court and not to the District Court. The following observation of Mukerji J. at p. 966 has been relied upon: In my opinion, the illustration shows conclusively that the theory that the forum of appeal depends upon the value as adjudged by the Court does require qualification, and the qualification I have suggested seems to me completely to meet the situation. The forum of appeal depends not upon the value as adjudged, but upon the value as accepted by the plaintiff after adjudication.

(3.) In the present case it is argued that the provisional value of the suit in the plaint was not final, but the amount decreed by the Court was the real value which was accepted by the plaintiffs without any objection and the court-fee on that sum was paid. It is, therefore, contended that the suit being above Rs. 5000 in value the appeal from the decree lay to the High Court. The next case cited is Raman Lalji V/s. Desraj (1910) 32 All. 222. This was a suit for recovery of Rs. 1945 on a hypothecation bond. The plaintiff offered to redeem prior mortgages if the prior mortgagees proved their debt. The decree was passed on a compromise conditioned on redemption of prior mortgages amounting to Rs. 15,700 and payment of requisite court-fees. The learned Judges relying upon the Full Bench case cited above and certain other rulings held: So long as there has been no order accepted by the plaintiff to make good the deficiency, the original value placed by the plaintiff must be taken as the value of the suit for the purpose of regulating the proper Appellate Court, but we think that, when there has been such an order accepted by the plaintiff, from that moment the value of the suit must be taken as being in accordance with the fee paid by the plaintiff.