P L D 1971 Karachi 920 (PLP)

Maruf Ali Khan for Appellant. A. H. Memon, Assistt. A.-G. for Respondents. The Office has taken an objection to the court-fee of Rs. 45 paid by the appellant on this appeal and has referred the case for orders on the subject. The suit giving rise to this appeal was for partition and separate possession of certain assets left behind by Haji Mohammed Shafi, the father of the plaintiff who is now the appellant. The plaintiff had further sought a declaration that she held 3 out of 24 Sehams in certain business enterprises owned formerly by her deceased father and also claimed `mesne profits' with effect from 17-10-63 calculated according to her aforesaid share. The appellant contended in the suit that amongst the assets left behind by her deceased father was house No. B-2732 which was in her possession as well as of her mother, respondent No.

6. On these assertions the appellant paid a fixed court-fee on the relief of partition relying on Article 17 (vi) of the Second Schedule to the Court Fees Act 1870.

2. The learned Civil Judge, Sukkur, who heard the suit, came to hold that the appellant had not been able to prove tha she was in joint possession of the aforesaid house along with respondent No.

6. Consequently he held that the court-fee ought to have been paid on the market value of the relief claimed and not under Article 17(vi) of the Second Schedule to the Court Fees Act.

3. Relying on the above finding of the trial Court the Office of this Court has taken the view that for purposes of court fee the suit fell under section 7(vi)(c) of the Court Fees Act, an court-fee should be assessed according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. It has also been pointed out that the finding of the trial Court on the question of court-fee is binding in view of the provisions of section 12 of the Court Fees Act and that it is not open to the appellant to question the correctness of the said finding.

4. Since the question referred to me was of general importance and concerned revenue, I issued notice to the y v learned Advocate-General and have heard Mr. A. H. Memon, the learned Asstt. Advocate-General who appeared in response to the said notice.

5. Before proceeeding to consider the office objection with regard to the provision of the Court Fees fact thM would govern the suit I would like to dispel certain notions that prevail on the effect of section 12 of the Court Fees Act. It will be worth while to reproduce the section here: "Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorondum, as the case may be, is filed, and such decision shall be final as between the parties to the suit. But whenever any such suit comes before a Court of appeal, reference or revision, if such Court considers that the said question had been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided, and the provisions of section 10, paragraph 11, shall apply."

6. In many of the office references which have lately come before me, reliance has been placed on the foregoing provision to canvass the plea that any and every decision of the trial Court touching the subject of court-fee gains an unimpeachable sanctity and is not open to question in appeal. This approach appears to me to be misconceived. Subsection (1) of section 12 of the Court Fees Act is designed to give finality only to those decisions which, upon the stated facts, proceed to apply the law. Thus where, upon a statement made in a plaint, the court fee payable would rightly be of a particular value and the plaintiff, on an erroneous view, pays a different amount, the decision of the Court on the subject is not open to question. A Where, however, the plaintiff, as in the instant case, claims to be in joint possession and the Court, after recording of evidence, reaches a different conclusion on the nature of possession, its consequential decision on the question of court fee is not immune from being questioned. To hold otherwise could lead to absurd results in that while an aggrieved party may, in an appeal, succeed in having the findings of fact reversed, it would yet be unable to get rid of the consequential decision on court fee, which had relevance only by reference to the factual conclusions reached by the Court.

7. With particular reference to Article 17(vi) of Schedule 11 a Full Bench of the Lahore High Court in 15 Lahore 531 held that for the purpose of determining the amount of court-fee payable on a plaint in a suit for partition of property alleged to be joint of the plaintiff and defendants and of which the plaintiff alleges to be in actual or constructive possession, the allegation, in the plaint are to be considered and no regard is to be had of the defendants denial of the plaintiff's alleged title or possession. Following this rule a later Full Bench of the same Court in Diwan Chand v. Dhaniram (A I R 1941 Lah. 123) observed that the provision in article 17(vi) relating to a memorandum of appeal was indential and, therefore, if the appeal arose from such a suit the fee payable thereon would be the same and it was immaterial what the findings of the Court below were. Their Lordships of the Full Bench have cited extensive case-law for reaching their conclusion. The ratio of all the cases is that in an appeal from a decree passed in a suit for partition, the fee payable would be the same as on the plaint where the nature of the case remained unaltered. I would refer in particular to Manchar Sham Rao and others v. Manorama Val and others (A I R 1952 Nag. 350) where in a Full Bench of the Nagpur High Court consisting of Sinha, C. J., Hidayatullah and Mudholkar, JJ. as they then were, held that a Memorandum of app; al (from a decree in a suit for partition) was chargeable with the same fee as that on the plaint and is not to be assessed on the basis of the value of the subject-matter in appeal. Their Lordships quoted with approval the view of Das, J in Chaitan Senapati v. Mani Bewa (I L R 1951 Cut. 111), holding that the Memorandum of Appeal in a case as above is chargeable with the same fee as that on a plaint and does not depend upon the decision of the Court upon a particular issue that has been raised in4he suit. The question was also before a Division Bench of the Lahore High Court in Mohammed Latif v. Ghulam Fatima (P L D 1955 Lah. 487). It was contended in that case that after the defendants had, fn the trial Court, objected to the valuation and the plaintiff had paid court fee ad valorem, it should be presumed that the relief sought by tire plaintiff was one of possession as though she were not in possession. This contention found favour with Kaikaus, J. while Akhlaque Hussain, J. thought that since the plaint had not been amended the suit must be regarded to be one for partition on basis of joint possession and the fixed court-fee of Rs. 1.0 would be payable both on the plaint as well as the memorandum of appeal. The matter thus went before Kayanl, J. as the third judge. Agreeing with Akhlaque Hussain, J., Kayani, J. held that the court-fee payable on the memorandum of appeal was to be assessed on the came principle as on the amended plaint since the plaint itself remained unamended after the adverse finding of the trial Court on the question of possession. My object in quoting the above cases is to emphasize that the findings of the lower Court are immaterial to a determination of the .fee payable on a memorandum of appeal arising from a suit for partition. This brings us back to a consideration of the effect of section 12 of the Court Fees Act. I have already observed with particular C reference to a suit for partition that the conclusion reached by the trial Court on the question of possession will not affect the principle upon which the court-fee is to be assessed on a Memorandum of appeal. A number of Courts of the Indian Jurisdiction have taken the view that section 12 applies only to a decision as to the actual valuation of a suit which admittedly falls within a particular class, and not to a decision as to the particular class in which a suit falls. Baker, J. C. of the then Judicial Commissioner's Court of Nagpur in Govind v. Vithabai (A I R 1925 Nag. 435) has explained the above proposition by observing that if there is no doubt as to the class in which the suit falls and the section of the Court Fees Act which applies to it, the decision of the first court as to the valuation is final, but if there is a dispute as to the class in which the suit falls, that is to say, the provision of the Court Fees Act which applies to it, an appeal against the decision will certainly lie. The same view was followed by Macklin, J. of the Bombay High Court in Krishnaji Hari v. Gopat Narayan (A I R 1936 Bom. 166) relying on an earlier Bombay case reported as I L R 28 Bom.

486. More recently the Supreme Court of India in Nernichand and others v. The Edward Mills Co. Ltd. (A I R 1953 S C 28) expressed the view that the finality declared by section 12 of the Court Fees Act is limited only to the question of valuation pure and simple and does not relate to the category under which a certain suit falls. Mention may also be made of a Division Bench judgment of Pratt, J. C. and Crouch A. J. C. of the then Sind Judicial Commissioner's Court in the case of Manghanmal v. Tolaram (6 S L R 72). Their Lordships in this case held that in determining whether the plaint bears a proper court-fee, regard must be had to the allegation contained in the plaint and the substance of relief sought and not the consideration of any evidence in the case. It was additionally held that section 12 of the Court Fees Act did not bar an appeal against an order deciding the particular class to which the suit is referred for court-fee. It only bars the right of appeal against an order in respect of the valuation of the suit in that particular class. My own view formed upon a careful consideration of the provisions of section 12 and upon weight of authority is that the finality declared by it is not absolute. It does not attach to a decision reached as a consequence to finding on fact nor does it fortify a decision as to the class in which the suit falls. Where a trial Court, therefore, on the basis of evidence recorded by it, reaches a conclusion that the premises upon which the plaintiff had valued the suit for purposes of court-1 fee is erroneous, its decision is neither un-impeachable nor is the plaintiff constrained to value his appeal in accordance with the finding of the trial Court. I need scarcely mention that this proposition will not apply where, upon plaintiff's own case, the valuation is found to be erroneous in the class relied upon by him.

8. Having discussed generally the law, it will be pertinent to note that the appellant in the case before me had filed a suit for partition and separate possession claiming, rightly or wrongly, to be in joint possession, with her mother, of a house. She paid a fixed court-fee on the relief of partition under Article 17 (vi) of the II Schedule. The learned trial Judge, after recording of evidence, found that her plea of joint possession was untrue. He thus came to the conclusion that the plaintiff's suit was not covered by the class to which Article 17 (vi) applied. Holding in these circumstances that court-fee should have been paid on the market value of the relief claimed he dismissed the suit. Challenging this finding in this appeal the plaintiff has valued the appeal on the same basis as the original suit and I do not see how any exception could be taken to this valuation if indeed the law is as what I have endeavoured to state.

9. That a suit for partition and separate possession brought) by a co-owner claiming to be in joint possession falls under Article 17(vi) of the Second Schedule to the Court Fees Act is settled law (see Diwanchand v. Dhani Ram's case. The first mentioned case went so far as to say that the plaintiff's possession may also be constructive.

10. In view of the foregoing discussion I would answer this office reference by stating that a suit for partition where the plaintiff claims to be in joint possession will fall under Article 17(vi) of the Second Schedule to the Court Fees Act for purposes of court-fee and the same article will govern a memorandum of appeal despite the trial Court's finding that the plaintiff has failed to establish his joint possession. The position however, would be different if the plaintiff accepts the said finding by either amending his plaint or by adopting it in the memorandum of appeal. Order accordingly.