P L D 1962 Dacca 214 (PLP)

This appeal is by the defendants. It is directed against the order of the lower Appellate Court rejecting the memorandum of appeal for non‑payment of deficit court‑fees.

2. Facts of the case, shortly stated, are as follows: The plaintiffs‑respondents filed a suit in the Court of the Munsif, Manikganj, being Title Suit No. 52 of 1947 against the defendants- appellants for accounts and valued the relief sought tentatively at Rs.

500. There was a preliminary decree on contest with a direction for taking accounts by a pleader‑commissioner to be followed by a final decree in due course. In pursuance of the preliminary decree a pleader‑commissioner was appointed for taking accounts and ultimately on the report of the commissioner a final decree for Rs. 15,000 was passed with costs. The defen dants being aggrieved by the said decree filed an appeal to the District Judge and valued it at Rs. 500 and paid court‑fees on that amount. That appeal came up for hearing before the Subordinate Judge, 1st Court, Dacca.

3. A preliminary objection was taken at the outset of the hearing of the appeal as to the maintainability of the appeal as the appellants did not value the appeal properly nor paid full court‑fee on the decretal amount, which they sought to set aside by way of appeal. The learned Subordinate Judge found that the appeal having been filed against the decree for Rs. 15,000 passed by the learned munsif, the appellants were bound to value it and to pay ad valorem court‑fee on Rs. 15,000 and directed the appellants to pay the deficit court‑fee within 31‑1‑

58. But the defendants- appellants did not comply with the order of the Court. Therefore, the learned Subordinate Judge rejected the memorandum of appeal by the following order dated 30‑7‑58: "No court‑fee paid. The memo. of appeal is rejected. The contesting respondents will get costs from the appel lants." Against this decision the present appeal has been filed.

5. It is contended by Mr. K. M. Shaha the learned Advocate for the appellants, that if the tentative value given by the plaintiffs in the plaint was not the real value of the suit and the real value is what the Court found due from the defendants to the plaintiffs, namely, Rs. 15,000, then it exceeds not only the pecuniary jurisdiction of the learned Munsif but also the appellate jurisdiction of the lower Appellate Court and the appeal was not entertainable by the lower Appellate Court for want of jurisdiction and as such the order passed by the lower Appellate Court in the appeal is without jurisdiction and that in view of his finding that the appeal should be valued at Rs. 15,000, the learned Subordinate Judge should have returned the memorandum of appeal for presentation to the proper Court. His second contention is that the original suit having been valued at Rs. 500 it will not only determine the forum of the appeal but also the value of the appeal and the defendants‑appellants are quite correct in valuing the appeal with reference to the valuation of the suit and in paying ad valorem Court‑fee on that value of the appeal.

6. A preliminary objection has been raised by Mr. Bakr, the learned Advocate for the respondents, that the appeal before this Court is incompetent as no appeal lies against the order rejecting the memorandum of appeal for non‑payment of deficit court‑fee. On this preliminary objection Mr. Saha, the learned Advocate for the appellants, contends that it is a decree within the definition of decree in section 2 (2) of the Code of Civil Procedure.

7. I take up the preliminary objection first for decision. Subsection (2) of section 2 of the Code of Civil Procedure, which defines decree, provides that "it shall be deemed to include the rejection of a plaint." Order VII, rule 11 clause (6) provides for rejection of a plaint "where the relief claimed is under‑valued, and 'the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so" and clause (c) of rule 11 of Order VII provides for rejection of a plaint "where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the' plaintiff, on being required by the Court to supply the requisite stamp‑paper within a time to be fixed by the Court, fails to do so." Order VII, rule 13 provides that rejection of plaint does not preclude presentation of fresh plaint. Section 6 of the Court Fees Act (in Bengal) provides as follows: "Notwithstanding anything contained in subsection (1) or in any other Act, a Court may receive a plaint or memo randum of appeal in respect of which an insufficient fee has been paid, subject to the condition brat the plaint or memo ' randum of appeal shall be rejected unless the plaintiff, as the case may be, pays to the Court within a time to be fixed by the Court such reasonable sum on account of court‑fees as the Court may direct." Therefore, a plaint can be rejected for non‑payment of deficit court‑fee both under Order VII, rule 11 of the Code of Civil Procedure as well as under section 6 of the Court‑fees Act. Subsection (2) of section 2 of the Code of Civil Procedure pro vides that rejection of a plaint is a decree. It has been held that rejection of a plaint is not a decree in all cases, but if the rejec tion of plaint goes so far as to determine the question between the parties, then it will operate as a decree. In such a case no fresh plaint can be filed as contemplated under Order VII, rule 13 of the Code of Civil Procedure. So far as the effect of rejection of plaint is concerned, we are not directly interested in the present case. Question is whether the rejection of the memo randum of appeal will be a decree within the definition of decree in subsection (2) of section 2 of the Code of Civil Pro cedure. In terms subsection (2) of section 2 does not apply to the memorandum of appeal.

8. Question arose whether subsection (2) read with section 107 (2) of the Code of Civil Procedure will make the rejection of the memorandum of appeal a decree. There is conflict of opinion on this point. On the one hand, it has been held that the words "shall be deemed to include the rejection of a plaint" in subsection (2) of section 2 of the Code of Civil Procedure show that but for the use of these words an order of rejection even of a plaint, will not be a decree ; that there is no provision corresponding to this provision applicable to the rejection of a memorandum of appeal, that section 107, sub section (2) dealing with the powers of an Appellate Court cannot enable a memorandum of appeal to be regarded as a plaint and that consequently, the rejection of a memorandum of appeal is not a decree. This is the consistent view of Calcutta and Allah abad High Courts. In this connection reference may be made, among others, to the case of Jnanada Sundari Shaha v. Maadhab Chandra Mala (I L R 59 Cal. 388) and Lekha v. Bhauno and others (I L R 18 All. 101 (103)) On the other hand, it has been held in a number of cases that the rejection of memorandum of appeal is a decree. According to one view it is a decree by virtue of subsection (2) of section 2 of the Code of Civil Procedure read with section 107 (2) of the Code. According to the second view, such a rejection is a decree independently of the application of section 107 (2), if it conclusively disposes of the appeal. The third view is that rejection which amounts to dismissal of an appeal is a decree. So, according to the latter view appeal before this Court is compe tent and according to the earlier view the appeal is incompetent. But this distinction should not detain us long in view of the fact that if the appeal is incompetent I can deal with the memorandum of appeal which bears sufficient court‑fee as an application under section 115 of the Code of Civil Procedure and, fn fact, there is an alternative application filed by the appellant under section 1151 to be heard along with this appeal. The preliminary objection is disposed of accordingly.

9. Now coming to the merits of the case, it is not correct to say that the learned Munsif, Manikganj, is incompetent to pass the decree for the amount exceeding his pecuniary jurisdiction. Section 6 of the Code of Civil Procedure provides as follows: "Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject‑matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction." This section is to be read subject to the provision of section 8 of the Suits Valuation Act, which provides that the valuation for the purpose of jurisdiction shall follow the value for the purpose of court‑fee (but not vice versa) vide In re -Kalipada Mukerjee (I L R 58 Cal. 281). Section 11 of the court‑fees Act pro vides a procedure for payment of court‑fees in suit for mesne profits or for land and mesne profits for account when the amount found due exceeds the amount claimed in the suit. Order V11, rule 2 provides that: "Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed: But where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, the plaint shall state approximately the amount sued for." These provisions clearly show that a Court passing a decree for mesne profits or for accounts can award a decree for an amount in excess of its pecuniary jurisdiction if found due upon taking of accounts. In this connection reference may be made to the case of Bidyadhar v. Manindra (I L R 53 Cal. 14). The decided cases have gone so far as to hold that Court has jurisdiction even though by addition of subsequent mortgagee as party the total claim exceeds its pecuniary limit. (Vide the case of Sailendra v. Hari Charon (I L R 58 Cal. 829). Therefore, it is not correct to say that the learned Munsif, Manikganj has no pecuniary jurisdiction to pass a decree for Rs. 15,000 which exceeds his pecuniary jurisdiction.

10. Now coming to the question of forum of appeal, It has been held by the Full Bench of Calcutta High Court in the case of Ijjatulla Bhuyan v. Chandra Mohan Banerjee (I L R 34 Cal. 954), relying on the case of Gulab Khan v. Abdul Wahab Khan (I L R 31 Cal. 365), "where a plaintiff definitely fixes a certain sum as the amount of his claim,' this must be considered as the value of the suit and the appeal will lie accordingly : but when he fixes a certain sum as the amount of his claim only approximately or tentatively and prays that the amount of his claim may be ascertained in the course of the suit, then the amount found by the Court to be due to him must be regarded as the value of the original suit for the purpose of determining the forum of appeal" under section 21 of the Civil Courts Act (XII of 1887). That was a case where the suit for possession of land and mesne profits filed in the Court of the Subordinate Judge was originally valued at a sum below Rs. 5,000 but in which the whole amount actually found due inclusive of the mesne profits payable by the defendant to the plaintiff, was over Rs. 5,

000. Question arose whether appeal would lie to the High Court or to the District Court. The same view has been taken by Lahore High Court in the case of Budha Mal v. Rallia Ram and others (I L R 9 Lah. 23) following the Full Bench case of the Calcutta High Court in Ijjatulla Bhuyan v. Chandra Mohan Banerjee, though the same learned Judge (Sir Shadi Lai, C. J.) in the case of Hari Chand v. Madan La, and others (I L R 1930 Lah. 832), held "In a suit for accounts, the determination of the forum of appeal from the preliminary decree depends upon the valuation of the suit for purposes of jurisdiction, and the fact that the amount ultimately to be found may or may not exceed the valuation cannot disturb the course of appeal." In the last mentioned case of Lahore High Court question of appeal from the preliminary decree was in question though the suit was valued at Rs.

130. At one stage Court found that the amount to be awarded to the plaintiff would exceed Rs. 5,000, which is in excess of the pecuniary limit of the jurisdiction of the Court where the suit was filed and as such the plaint was returned for presentation in the proper Court, namely, Senior Subordinate Judge. The Senior Subordinate Judge passed a fresh preliminary decree similar to the one made by the Sub ordinate Judge Second Class and the question was not one of filing an appeal against the final decree passed by the Court after taking accounts. Section 21 of the Civil Courts Act (XII of 1887) provides: "(1) Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall be‑ (a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five thousand rupees, and (b) to the High Court in any other case. (2) Save as aforesaid, an appeal from a decree or order of a Munsif shall lie to the District Judge." Mookerjee, in that Full Bench case pointed out that the rule formulated in Gulab Khan v. Abdul Wahab Khan was too wide and required to be qualified and held that where a plaintiff was permitted by section 50 of the Code of Civil Procedure to put upon the relief claimed by him an approximate or tentative value, and the Court/ determined the amount which the plaintiff was entitled to recover, such amount, if accepted by the plaintiff as the value of relief claimed by him, determined the value of the suit and consequently, the forum of appeal, under section 21 of Act XII of 1887. The learned Judge illustrated the point at page 962 of the report as follows: "To take one illustration, suppose a plaintiff values his suit for mesne profits approximately at Rs. 6,

000. He obtains a decree in the Court of first instance for Rs. 4,

000. He desires to prefer an appeal in which he can contest the determination of the Court of first instance and urge that he ought to have been allowed a decree for at least Rs. 6,

000. It is unquestionable, that in such a case the value of the relief claimed by the plaintiff exceeds Rs. 5,000 and an appeal lies to this Court (High Court). It cannot be reasonably suggested, that the value of the suit for the purposes of appeal is the sum adjudged by the Court of first instance, when the very object of the appeal is to prove that the value as determined by that Court is erroneous. Indeed in such a case, if the plaintiff was compelled, to appeal to the District Judge on the basis of the amount adjudged by the first Court, and if the appeal succeeded, the result would be singularly anomalous. The District Judge would be called upon to make a decree on the footing that the sum claimed by the plaintiff in excess of Rs. 5,000 was legitimately due to him. Let us take again another illustra tion. Suppose in this very case, it is the defendant who appeals. it can hardly be contended that the appeal would lie to the District Judge, although an appeal by the plaintiff against the same decree would obviously lie to this Court. The defendant cannot reasonably contend that as the plaintiff although he claimed more than Rs. 5,000 has got a decree for a less amount, the value of the relief claimed by him must be taken at the latter figure. If the defendant was allowed to appeal to the District Judge on this assumption, and if subsequently the plaintiff preferred a cross‑appeal In respect of the amount which has been disallowed, the position would be very anomalous, the District Judge would be called upon to adjudicate upon the entire claim in excess of Rs. 5,000 and to allow it, if he found it to be well founded. In such a case also, I take it, the appeal must lie to this Court. The statement, therefore, that the amount ascertained by the Court to be due to the plaintiff in suits in which the amount of claim is approximately stated in the plaint, is the value of the original suit for the purpose of determining the forum of appeal, is too broad and does require to be qualified. In fact, it seems to me that it is not so much the adjudication of the amount by the Court, as the acceptance of the adjudicated amount by the plaintiff as the value of the relief claimed by him, which determines the value of the suit, and consequently, the forum of appeal." The under linings are mine.

11. If we follow the principle for determination of the forum of, appeal as laid down in that case and apply it to the facts of the present case, then it appears that the decree passed by the trial Court. not only exceeded its pecuniary limit but also exceeds the jurisdiction of the lower Appellate Court, because the Court passed a decree for Rs. 15,000 and according to the principle enunciated in the above case, as contended by Mr. Shaha for the appellant, the appeal should have been filed not in the District Court but in the High Court. Therefore, his contention is that when the appeal was not entertainable by the learned Subordinate Judge for want of jurisdiction, the order passed by him rejecting the memorandum of appeal is also without jurisdiction and he asks this Court to interfere either in the appeal or under section 115 of the Code of Civil Proce dure for which he has filed an alternative application. This contention of Mr. Shaha would have been of force had not there been subsection (2) of section 21 of the Civil Courts Act (XII of 1887) which provides "Save as aforesaid, an appeal from a decree or order of a Munsif shall lie to the District Judge." "Save as aforesaid" in subsection (2) of section 21 of the Civil Court Act means save the provision of section 20 of the Act which relates to appeal from the District Judge and Additional District Judge as well as the provision of subsection (1) of section 21 which provides for appeal from the decree or order of the Subordinate Judge.

12. Mr. Shaha further contends that in section 21 of the Civil Courts Act (XII of 1887) the words "the value of the original suit" refer to the valuation put by the plaintiff and, therefore, that valuation will control the valuation of the appeal. I am unable to accept this contention of Mr. Shaha as sound. "Value of the original suit" means the value of the relief claimed in the original suit. What is the relief claimed in the original suit ? It is a suit for mesne profits the amount of which is to be found by the Court to be due from the defendant to the plaintiff. If that is the relief, then, the tentative valuation put by the plaintiff In the plaint is not the value of the original suit, but what has been found due by the Court from the defendants to the plaintiff and accepted by the plaintiff on payment of court‑fees on the excess amount would be the value oil the suit for the purpose of determination of the value of the appeal. Further section 8 of the Suits Valuation Act, though applies in a suit, it does not apply in appeal. Appeal is to be valued with reference to the relief claimed by the appellants in the appeal. In the present case a decree for Rs. 15,000 has been passed against the defendants‑appellants. They want relief against the decree for Rs. 15,000 and they are to value their own relief. Accordingly they must value the appeal at Rs. 15,000 and must pay ad valorem court‑fee on this amount. In support of this view reference may be made to a Madras case. In re Porkodi Achi (68 I C 444), where it has been held that in a suit for possession if the Court decrees possession on condition of the plaintiff paying a specified amount to the defendant and the plaintiff appeals, the memorandum of appeal is chargeable with court‑fees calculated ad valorem on the amount from which he seeks to escape liability, and that the value of an appeal is not in all cases the value of the suit as originally filed, but value of the relief granted by the decree which the party wishes to get rid of. In this view of the matter, I think the learned Subordinate Judge is perfectly right in holding that the defendants‑appellants were to pay ad valorem court‑fees on the decretal amount of Rs. 15,000 and has correctly directed them to pay the deficit court‑fees, namely, court‑fee on the balance of the amount after deducting the amount on which they have already paid court‑fees, and when they have not paid that amount the Court is perfectly right and within its jurisdiction to reject the memorandum of appeal. The result, therefore, is that this appeal is dismissed and the alternative application under section 115 of the Code of Civil Procedure is rejected. In the circumstances, I direct that the parties will bear their respective costs in this Court. S. B. Appeal dismissed.