2000 PLP 1598 (CLC)

Date of hearing: 1st June, 1999. MALIK MUHAMMAD QAYYUM, J.‑‑‑ This appeal arises out of a suit for rendition of accounts filed by the respondents against the appellant in which a preliminary decree was passed by the trial Court on 7‑10‑1985. In the plaint, the value of the suit for the purposes of court‑fee and jurisdiction was fixed at Rs.200. An issue namely issue No.4 was framed in this respect by the learned trial Court which while passing a preliminary decree observed that the suit was one for accounts and falls under section 7(iv)(f) of the Court Fees Act and, therefore, the valuation given in the plaint was correct, though he would be liable to pay court‑fee on the amount found due from the appellant at the time of the passing of the final decree.

2. The appellant challenged this preliminary decree by filing an appeal in the District Court. On 14‑4‑1990 the learned Additional District Judge came to the conclusion that issue No.4 was not correctly decided by the trial Court and as the plaintiffs/respondents themselves stated that an amount of Rs.8,00,000 would be found due from the appellant to the respondents, the suit should have been valued for the purposes of court‑fee and jurisdiction at Rs.8,00,

000. Consequently, he set, aside the finding of the trial Court on issue No.‑4 and sent the case to the Civil Judge for the purpose of ordering the plaintiffs to make up the deficiency in court‑fee. It was further directed that after the deficiency had been made good the file of the case shall be resubmitted to him.

3. It appears that pursuant to the order passed by the Additional District Judge the plaintiffs paid the additional fee on the plaint whereafter the file was transmitted to the Additional District Judge in terms of his order, dated 14‑4‑1990.

4. When this appeal came up for hearing before the Additional District Judge on 28‑3‑1994 he observed that as after the remand the valuation for the purpose of court‑fee had been fixed at Rs.8,00,000, he did not have jurisdiction to hear the appeal which should have been filed before this Court. The appellant consequently, presented the memorandum of appeal after taking it back from the Court of Additional District Judge.

5. The learned counsel for the appellant has argued that the Additional District Judge was not justified in holding that the appeal against the preliminary decree lay to the High Court and not the District Court. In this behalf, it has been pointed out that in the plaint the value of the suit for the purposes of court‑fee and jurisdiction was fixed at Rs. 200 and as such the Additional District Judge was in error in holding that the valuation for the purposes of court‑fee was Rs.8,00,000 and the appeal lies to this Court.

6. This contention of the learned counsel is well‑founded. From a perusal of the plaint, it is apparent that the valuation of this suit for the purposes of court‑fee and jurisdiction had been fixed by the plaintiffs/respondents at Rs.200. According to section 7(iv)(f) of the Court Fee Act, 1870 the plaintiff is entitled to fix notional value for the purpose of court‑fee which according to section 8 of the Suits Valuation Act, 1887 would also be the value for jurisdiction and not the value which plaintiff however, is required by Order 7, Rule 2, C.P.C. to state an approximate amount which according to him shall be found payable by the. defendant after taking accounts. The forum of appeal is B dependent not on the amount mentioned under Order 7, Rule 2, C.P.C. but on the valuation fixed by the plaintiff for the purposes of court‑fee and jurisdiction. It is only when a final decree is passed that the Court can require the plaintiff to pay the difference between the court‑fee actually paid and the fee which would have been payable on the amount decreed. ‑ This section further provides that till the court‑fee is paid final decree shall not be executed.

7. In the present case, however, the appeal of the respondents was directed against the preliminary decree at which stage the valuation cannot be finally determined. Reference may be made ‑to the judgment of this Court in Muhammad Ramzan and another v Nazir Ahmad and 2 D others 1979 CLC 95 in which while relying upon the decision of the Full Bench in Megh Raj v. Rupchand Uttand Chand AIR 1946 Lah. 280, it was held as follows:‑‑ "Since no amount is decreed at the stage of passing of a preliminary decree, it is held by the Full Bench in the abovementioned case that court‑fee on an appeal against a preliminary decree must be paid according to the notional value mentioned in the plaint. It means that till such time that a final decree is passed and for a larger sum, the value for purposes of court‑fee must remain the same. That being so, the value for purposes of jurisdiction cannot be changed either. " From the above, it follows that since the value of the suit for the purposes of court‑fee and jurisdiction has been fixed by the appellant at Rs.200, the appeal lay to the District Court and not this Court and the Additional District Judge acted illegally in returning memorandum of appeal to the appellant. In‑view of the above, this appeal is disposed of in the terms that the memorandum of appeal presented by the appellant be returned to it enabling it to represent it again before the District Court which shall proceed to decide the same in accordance with law. H.B.T./G‑29/L Order accordingly