P L D 1973 Karachi 177 (PLP)

(f) for accounts‑ according to the amount at which the relief sought is valued in the plaint or memorandum of appeal." I have underlined the words "memorandum of appeal" because they are not to be found in any other paragraph of section 1, and this is very relevant to the arguments advanced. Finally, as to the Suits Valuation Act, sections 8 and 11 are relevant. Section 8 reads as follows:‑ "

8. Where in suits other than those referred to in the Court Fees Act, 1870, section 7, paragraphs (v), (vi) and (ix), and paragraph (x), clause (d), court‑fees are payable ad valorem under the Court Fees Act, 1870, the value as determinable for the computation of court‑fees and the value for purposes of jurisdiction shall be the same." Section 11 reads‑as follows:‑ "11.‑(1) Notwithstanding anything in section 578 of the Code of Civil Procedure, an objection that by reason of the over‑valuation or under valuation of a suit or appeal a Court of first instance or lower appellate Court which had no jurisdic tion with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an appellate Court unless‑ (a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower appellate Court in the memorandum of appeal to that Court, or (b) the appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit or appeal was over‑valued or undervalued, and that the over‑valuation or under valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits. (2) If the objection was taken in the manner mentioned in clause (a) of subsection (1), but the appellate Court is not satisfied as to both the matters mentioned in clause (b) of that subsection and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower appellate Court. (3) If the objection was taken in that manner and the appellate Court is satisfied as to both those matters and has not those materials before it, it shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of appeals; but if it remands the suit or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a Court compe tent to entertain the suit or appeal. (4) The provisions of this section with respect to an appellate Court shall, so far as they can be made applicable, apply to a Court exercising revisional jurisdiction under section 622 of the Code of Civil Procedure or other enactment for the time being in force. (5) This section extends to the whole of Pakistan, and shall came into force on the first day of July 1887."

5. I now turn to the facts of the present case, and it is material to point out that what the respondent is aggrieved by is the final decree according to which he is liable for a sum of Rs. 66,004.75. As he has filed his appeal to escape liability under this decree, prima facie the value of the appeal is this amount of Rs. 66,004.75. But Mr. Raymond referred to the definition of "value" in section 2(h) of the Civil Courts Ordinance. According to this definition, "valve" means "the amount or value of the subject‑matter of the suit". I cannot understand how this definition advances Mr. Raymond's argument, but learned counsel submitted that the subject‑matter of a suit was the cause of action of the plaintiff and that the cause of action meant the right which was challenged by a defendant and which a plaintiff sought to enforce through the medium of the Courts. Accepting this definition, for the purpose of learned counsel's argument, the real point for determination is what was the relief sought by the first two applicants in their suit. They sought two reliefs, the dissolution of the firm, which was not challenged and is therefore not relevant, and they also sought to recover their share of the assets of the firm. Thus the relief sought surely was the value of their share as ascertained under the final decree. However, because the relief had been valued in the plaint at Rs. 200, Mr. Raymond submitted that the subject‑matter of the suit was only Rs.

200. I am not able to accept this argument, and at the outset I would observe that a suit for accounts is really a type of money claim. Normally, ad valorem court‑fees have to be paid on money claims because it is possible for a plaintiff to value them precisely, or at least that is the assumption of the law. But as the law assumes that a plaintiff cannot give a precise value to his claim in a suit for accounts, section 7 of Court Fees Act permits him to value his relief in the, exercise of his discretion. Further, as a corollary to this Order VII, rule 2 prescribes that a plaint in a money suit shall state the precise amount claimed but that in a suit for accounts "the plaint shall approximately state the amount sued for." Thus the valuation in the present case of Rs. 200 in the plaint was a tentative valuation and as the final decree has now quantified this tentative valuation in my humble opinion, the amount thus ascertained and decreed is the real subject‑matter of the dispute between the parties. Additionally, as I have observed, a plaintiff is allowed to value his relief approximately because the Legislature has assumed that a precise valuation is not possible before accounts are taken. But as the final decree is prepared only after accounts are taken, the aggrieved party cannot possibly contend that he is not able to value or assess the liability ft seeks to challenge. It is for this reason that in section 7 of the Court Fees Act the Legislature has drawn a. distinction between suits and appeals generally and suits and appeals in respect of claims for accounts, and under sub clause (f) of paragraph (iv) (f) of section 7 the court‑fees on appeals arising out of such suits for accounts have to be valued according to the memorandum of appeal and not the plaint.

6. Mr. Raymond could not explain the difference between the language of the aforesaid clause (f) of paragraph (iv) of section 7 and the language of the other paragraphs of section

7. Instead he submitted that his argument was supported by section 8 of the Suits Valuation Act because, according to learned counsel, the word "suits" in this section included appeals. I agree with Mr. Raymond that the value of a suit for accounts, for the purpose of jurisdiction, is the same as that for the purposes of court‑fees. But in my humble opinion, this does not mean that the value of the suit is the tentative value given in the plaint. In any case, the question here is of the valuation in an appeal, and even though its valuation for the purposes of jurisdiction has to be the same as that under the Court Fees Act, this does not help Mr. Raymond's submission because, according to section 7(iv)(f) an appeal has to be valued according to the amount for which relief is sought in it, and not according to the relief sought in the plaint. I have pointed out earlier the distinction between paragraph 4(f) and the other provisions of section 7 of the Court Fees Act, and the reason for this distinction appears to be that a person challenging the amount found due from him after accounts have been taken cannot possibly contend that be is not able to ascertain his liability. Accordingly, he cannot be permitted to value his relief tentatively or at any figure less than the amount for which he disputes liability, and, as in the present case, the respondent disputes his liability for Rs. 66,004.75 this amount was for the value both for the purposes of jurisdiction and court‑fees.

7. Mr. Raymond then submitted that the respondent was compelled to value his memorandum of appeal for the same amount as in the plaint, namely, Rs. 200 because otherwise the consequences would be anomalous. Thus in the present case, if tire respondent had challenged a preliminary decree passed against him, admittedly he would have had to value his appeal at Rs. 200 and file it in the District Court, but if he has to value his appeal against the final decree at the amount found due from rim, naturally the appeal can only lie to this Court. But according to Mr. Raymond, it would be anomalous if appeals against decrees in the same suit could lie to different Courts As a plaintiff is liven latitude in valuing his relief in the plaint, it seems to me that there cannot be any solution of the problem which would be completely logical, but the question is not of logic, but of the will of the Legislature. As a plaintiff is permitted to value his relief in the plaint tentatively, it will frequently happen that an appeal against the preliminary decree for accounts will lie in the District Court, and the appeal against the final decree will lie in the High Court. But that is the will of the Legislature and it must be given effect to by the Courts. Additionally, I would observe here that a defendant is entitled to challenge even the tentative valuation in a plaint if it is arbitrary‑See Badrul Islam v. Qamarul Islam and Imamdin v. Abdul Ghani, and it seems tome that the anomaly about which Mr. Raymond complains would not have arisen if the. respondent had been vigilant in the trial Court.

3. Mr. Raymond then feebly submitted that if the memorandum of appeal against the final decree in a suit for accounts was valued on an ad valorem basis, it would render most suits for accounts void because such suits were always valued at Rs. 200 and were therefore filed in the District Court. I agree with learned counsel that suits for accounts are frequently valued at Rs. 200, and I have not been able to understand this great addiction for a valuation of Rs.

200. All I can observe is that if a suit is deliberately undervalued, it would be hit by the rule laid down in Badrul Islam's case and Imamdln's case, and if a plaintiff deliberately and arbitrarily undervalues his, relief, he cannot be heard to complain if he is non‑suited. However, Mr. Raymond's fear was that as plaints were frequently under‑valued the result would be that Courts of limited jurisdiction would pass final decrees exceeding their pecuniary jurisdiction and when it was too late, it would be discovered that the decrees passed were void. This, according to learned counsel, would cause great hardship. The argument is totally misconceived because it is contrary to the plain language of section 11 of the Suits Valuation Act. In view of the beneficial provision con. tanned in that section, no bona fide litigant would suffer. Mr. Raymond then referred me to a rather far‑fetched possibility and that was this: A defendant files an appeal in the District Court without obtaining a stay. Then, before this first appeal is decided, a final decree exceeding the District Court's jurisdiction 's passed. In this situation, according to Mr. Raymond, if the appeal against the final decree lay in this Court, the possibility could arise that this Court would dispose of the appeal against the final decree before the decision in the District Court of the appeal against a preliminary decree. I do not see any complica tions in such a situation because an appellant who files an appeal against a preliminary decree for accounts would be entitled to a stay, not necessarily against the taking of accounts, but against the passing of any final decree. Secondly, Courts do not dispose of valuable rights on consideration of prestige, as learned counsel implied, and if the attention of a higher Court hearing an appeal against the final decree is drawn to the fact that the appeal against the preliminary decree had not been decided. I have no doubt that the higher Court would stay the hearing of the appeal before it, pending the decision of the appeal against the preliminary decree. I therefore see no merit in Mr. Raymond's submissions, but in deference to the industry of the learned counsel, I shall now consider the case‑law to which both the learned counsel referred me.

9. Both the learned counsel stated that the precise points which have arisen for determination in this revision had not been considered either by the Supreme Court or by the Judicial Committee, and that there was a conflict of authority on these points fn the West Pakistan High Court. As this conflict has arisen because the learned Judges have followed earlier judgments .of the High Courts of the Sub‑continent, the learned counsel took me first through these earlier judgments, and for convenience I would also consider them first.

10. Mr. Raymond relied on a judgment of a Division Bench of the Lahore High Court reported in Malik Feroze Din v. Malik Muhammad Din (A I R 1937 Lah. 694). The judgment fully supports the submission of Mr. Raymond, and is based on the earlier view of the Allahabad, Madras and Rangoon High Courts, I may also observe here that this judgment was followed in the Peshawar case which I shall presently consider. But, as tightly submitted by Mr. Khalilur Rehman, the view thus taken by the learned Judges of the Lahore High Court was contrary to the view taken by an earlier Full Bench of the Lahore High Court in Kalu Ram v. Hanuwant Ram (A I R 1934 Lah. 488). There, four learned Judges, with Agha Hyder, J. dissenting held that an appeal against the final decree for accounts had to be valued ad valorem according to the amount found due from the appellant. Unfortunately, the attention of the learned Judges in Ferozedin"s case, was not drawn to the earlier Full Bench decision of their Court. Mr. Raymond's argument is however supported by a Division Bench judgment of the Calcutta High Court in Bidyadhar Bachar v. Mahindra Nath Das (A I R 1925 Cal. 1076). But once again this judgment was neither cited nor followed, and a different view was taken by Rankin, C. J. in Kantichandra Tarafdar v. Radharaman Sarkar (I L R 57 Cal. 463). Turning now to the Madras High Court, the Full Beach judgment reported in Putta Kannaya Chetti v. Rudrabhatta Venkata Narasayya (I L R 40 Mad. 1), supported Mr. Raymond's argument. But 20 years later the Madras High Court took the contrary view In re : Dhanukodi Nayakar (A I R 1938 Mad. 435), and this view has thereafter prevailed in the Madras High Court (See Peravadhannulu v. Peravadhannulu (A I R 1950 Mad. 26). As to the was no conflict of authority in the Allahabad, Bombay and Nagpur High Courts. The Allababad High Court has constantly taken the view that in a suit for dissolution and accounts, the defendant who appeals against the final decree is required to value his appeal only according to the valuation in the plaint. But whilst following this view, in Chunilal and others v. Sheo Charanlal (I L R 47 All. 756), Suleman, J. has stated with regret that it was a view which would cause inconvenience. On the other hand, the Bombay High Court has held in Kashiram Chaudhuri v. Rang Lai Marwadi (A I R 1941 Bom. 242), that an appeal against the final decree for accounts must be valued on an ad valorem basis, arid that has also been the view of the Nagpur High Court in Sheokissandas Agarchand Daga v. Daudas Ramgopal and others (A I R 1938 Nag. 527). Thus the preponder ance of authority is in favour of the view that once a claim for accounts has been quantified by the final decree, then the appellant must value his appeal according to the amount, found due from him under the final decree or the amount for which he disputes liability.

11. I now turn to the conflict of authority in the West Pakistan High Court. 1n Pakistan Boy Scouts Association v. Kazi Muhammad Sharif and others (P L D 1969 Pesh. 175 .), a learned Single Judge followed the Lahore judgment in Ferozedin's case and observed: "The for the purpose of jurisdiction as fixed by the plaintiff at Rs. 200 is to be takers into consideration for choosing the forum of the appeal." Unfortunately, the attention of the learned Single Judge was not drawn to the earlier Full Bench judgment of the Lahore High Court in Kalu Ram's case, and with great respect, for the reasons which I have given earlier I am not able to agree with his view. On the other hand, a Division Bench of the West Pakistan High Court followed the view of the Lahore Full Bench in Kalu Ram s case and observed, with reference to final decree for accounts, in Amin Shah v. Abdul Rauf and another (P L D 1970 Quetta 82) at page 84 as follows:‑‑ "If the defendant challenges the decree ad valorem court‑fee has to be paid on the decretal amount instead of the Court fee on the tentative value fixed by the plaintiff in the suit." I am in respectful agreement with these observations which are in consonance with the preponderance of judicial opinion in the sub‑continent, and I can only express my very great regret that the learned Additional District Judge did not follow this judgment on the ground that it was distinguishable. According to the Additional District Judge, the judgment was distin guishable because it arose out of a revision application. It is unfortunate that the learned Additional District Judge drew a distinction between a revision "application and an appeal instead of trying to ascertain the ratio decidendi of the case cited. It is true that the case cited arose .out of a revision application. But the material facts were that a suit for accounts had been decreed against the appellant who had challenged the final decree passed against him in a first appeal in the District Court. As his appeal was dismissed, he had filed a revision application and at a much later stage attempted to convert it into an appeal. Now, it is the settled view of the Courts that if an aggrieved, party has a right of appeal in a High Court he cannot file a revision against the impugned order. Therefore the revision had to be dismissed, and the only question was whether ft could be allowed to be converted into an appeal. But the learned Judges refused the applicant's prayer to convert the revision into am appeal because they held that the applicant had deliberately filed a revision instead of an appeal in order to evade the payment of ad valorem court‑fees on the amount for which he had been found liable under the final decree. As the revision was thus dismissed on the finding that the applicant had sought to evade payment of proper court‑fees, it is clear that the view of the learned Judges on the proper valuation of the appeal was essential. to their decision, and the observations relied upon by Mr. Khalilur Rahman, which I have quoted, constitute the ratio decidendi of the case. As this judgment, unlike the Peshawar case, was of a Division Bench, it was binding on the learned Additional District Judge and he erred in disregarding it, and in dismissing simpliciter the application of the first two applicants under Order VII, rule 11, C. P. C.

12. Finally, Mr. Raymond referred me to the judgment of the Supreme Court in Ajiruddin Mondal v. Rahman Fakir (P L D 1961 S C 349), and submitted that the observations of their Lordships in this case, by parity of reasoning, supported his argument. In the case cited, the plaintiff had filed a suit for partition, his claim being that he was in joint possession of the estate with the defendants, and the only question before their Lordships was whether the proper valuation, for the purpose of court‑fees and jurisdiction, of the plaintiff's claim was the value of the entire estate or the value of his share in the estate sought to be partitioned. When I observed to learned counsel that the dispute in the present case was very different and that on account of the express provisions of section 7(iv)(f) of the Court Fees, Act, there could not be any analogy between a suit for partition and a suit for accounts, Mr. Raymond referred me to the observations of Kaikaus, J. at page

365. According to Mr. Raymond, the effect of these observations was that the valuation of relief is an appeal had to be the same as that in the plaint, and I will quote the observations on which Mr. Raymond. Relied:- "But let me state what I regard to be the fundamental point never to be lost sight of, namely, that the valuation of a suit depends upon the right which the "plaintiff" claims. 1'his value is fixed as soon as a suit is filed, and is not enhanced or diminished, except in cases where the valuation is originally notional, and the true value is to be determined only after &. finding by the Court. However, to proceed with the question of the scope of a suit for partition, what are the matters which the Court is to decide. It appears to me the ordinary rule:‑ that the Court is concerned with the right of the plaintiff applies to this suit as It applies to other suits. In a partition suit the only issue as to title would be does the plaintiff own the share he claims? The Court may while determining the right of the plaintiff incidentally determine rights of other persons . . . . ." Then, after referring to the peculiarities of a partition suit and the relevant case‑law Kaikaus, J. observed at page 365:‑ "I would prefer the view that the jurisdictional value of the original suit does not change" Thus, the observations on which Mr. Raymond relied had refe rence to a partition suit, and in a partition suit, I do not see how the value of the plaintiff's share can change after the suit has been filed. But the reason why a plaintiff is permitted in a suit for accounts to value his relief tentatively is that he is not able to ascertain the value of the relief sought by him, and, on the contrary, he requires the assistance of the Court for ascertaining that value. Therefore, in my humble opinion, there cannot be any analogy between a partition suit and a suit for accounts, and having given anxious thought to the observations relied upon by Mr. Raymond, I am of opinion that they are not applicable to suits for accounts. That is also clear from the express observations at page 69 that the value of a suit was fixed as soon as it was filed "except in cases where the valuation is originally notional and the true value is to be determined only after a finding by the Court." As the true value of a claim for accounts can only be ascertained after a finding by the Court, I have no doubt that the observations quoted were not intended to cover suits for accounts and are of no assistance to the respondent's case.

13. In the result, I hold that the learned Additional District Judge erred in dismissing simpliciter the application of the first two applicants. However, this does not mean that the g respondent's appeal .bas to be dismissed. It has long been the practice of this Court in such cases that the appellant should be permitted to pay proper court‑fees and present his appeal in the' proper Court, and in view of the judgment in Imamdin's case, Mr. Khalilur Rehman also stated that he would be satisfied with an order directing the respondent to present his appeal in this Court. Accordingly I allow the revision with costs, and as in Imamdin's case, I direct that the appeal of the respondent shall be returned to him for presentation to the proper Court, which is this High Court. K. B. A. Petition accepted.