1984 PLP 29 (CLC)

2. Section 7-A has been introduced by the Baluchistan Ordinance IX of 1981 in the Court-fees Act and it is reproduced hereunder :

"7-A. Abolition of court fees in certain cases.-Notwithstanding any thing contained in section 7 or in the Schedules, no Court-fee shall, except as provided in section 7(A), be payable in (a) any criminal case ; and (b) any case a civil nature the value of the subject or relief claimed wherein, does not exceed twenty-five thousand rupees." The law as it stands now exempts all cases of civil nature the value of the subject-matter or relief claimed wherein does not exceed Rs. 25,000 section 7-A will apply to all cases of civil nature notwithstand ing anything contained in section 7 of the Act or the Schedule. Section 7 of the Act describes the mode in which amount of Court-fee shall be computed while Schedule I and Schedule 11 of the Court Fees Act pres cribes the method for calculation of the amount of court-fee. Article-1 of Schedule I as amended by the Baluchistan Amending Ordinance of 1981 provides that ad valorem fee will be payable on plaint or Memo randum of appeal as 7 % on the amount or value of the subject-matter in dispute. Whenever ad valorem Court-fee has to be paid in suit and appeals, it has to be calculated according to Article I of Schedule I of the Act. There is no express provision in the Act for computation of Court -fee in appeals except that is provided under section 7 of the Act. The procedure has been to follow the same principles for valuation of Memo randa of Appeal as are followed for valuation of suits. The question as to how appeals are to be valued had arisen in various High Courts and there is consensus of opinion as to this aspect of the case. In the case of Sangat Bakhsh Singh v. Rawat Dijdeo Bakhsh Singh ((1922) 67 1 C 968) it was held that provision of section 7 of the Court-Fee Act are applicable equally to appeals as to the original suits and the word 'suits' in section 7 of the Act is not used in contra-distinction to the word `Appeal'. Following is the observation made in that case :- The provisions of section 7 of the Court-fees Act are applicable equally to appeals as to original suits and the word `suit' in section 7 of the Act is not used in contradistinction to the word `appeal'." In the case of Muhammad Amar Khan v. Additional District Judge Rawalpindi and others (P L D 1978 Lah. 716) this question was answered in this manner :

"Section 7 indicates the method of computation of fees. Each of the paragraphs begins with the word `suit', but it should not be con sidered that because that word is used, the memoranda of appeal are excluded from the operation- of section

7. There is indeed no express provision providing for such a course but it is general practice to apply this section to the calculation of fees in appeals. Schedule I is merely supplementary to section 7, it is a table pro vided for ready reckoning and indicates how the ad valorem fee prescribed by section 7 is to be calculated." Section 7 of the Court-fee Act has always been employed for computa tion of Court-fee on memoranda of appeals calculation which has been done according to Article I of Schedule I of the Act. The term "any case of civil nature" is more generic in nature than the term 'Suit'. When the provision of section 7 of the Court-fee Act which deal with the; valuation of suits have been applied to the valuation of memoranda of appeal, there seems to be no reason as why the term 'any case of civil nature' should not be deemed to include appeals. The word 'case' in its ordinary parlance means a case or suit for trial. It shall include a case at any stage of the proceeding. When an appeal is filed in a superior Court the proceedings of the trial Court are re-opened/re-examined and judicial pronouncement is made therein and the Court of appeal either confirms the adjudication done by the subordinate Court or substitutes its own decision for that of the trial Court. The parties remain at issue till the matter is finally concluded. The word 'case' in section 7-A should be taken in its broader sense and deemed to include an appeal. All suits and memoranda of appeal or to be valued according to provisions of section 7 of the Court-fee Act and Court Fees paid thereon according to table provided in Schedule I of the Act. The amendment incorporated in section 7-A does not in any way affect the principles of valuation of suits and appeals nor it affects the categorization of suit and appeals in any manner. It simply exempts a particular class of suits or appeal from payment of Court-fee. In fact it qualifies Schedule I of the Act and does not touch the provisions of section 7 of the Act. The manner in which the value of a suit or appeal is to be computed is regulated by section 7 of the Act and section 7-A does not extend to the domain of section 7 of the Act. It was not necessary to say in the newly-added section 7-A `notwithstanding anything contained in section 7 of the Court-fee Act', and it would have been sufficient if it had been stated `Notwithstanding anything contained in the Schedules'. The object of the law-makers would have been achieved. I am quite clear in my mind that the provisions as contained in section 7-A of the Act are applicable to suits as well as appeals. The words 'case of civil nature' includes appeals. The appeals always have been valued in the same manner as suits. Valuation for the purposes of Court-fee in appeal can in certain circumstances be different from the valuation of the suit in the original Court. The value of the subject-matter of the appeal depends on relief claimed by a party. Supposing in a case which is partly admitted by the defendant but decree having been granted for the whole amount the appellant would be bound to value the Memorandum of Appeal on the amount of the difference of the amount admitted and the amount decreed. The value of the appeal is the amount from which the appellant seeks to get rid of and the amount for which a decree is passed against him is the value of the relief liable to Court-fee. In the case of Tiruvangalath Nellytton Paidal Nayar and others ((1926) 92 1 C 624). The High Court of Madras had held as under :

"The value of an appeal is not in all cases the value of the suit as originally filed, rut may be the value of the relief granted by the decree which the appellant wishes to get rid of." This point was also dealt in the case of Babu Balmakund Gupta v. Secretary of State (A I R 1941 All. 295) which read as under :-- "Where a defendant seeks to set aside the whole decree passed against him the value of the subject-matter in dispute must necessarily be the value of the relief granted by the decree which the appellant wishes to disembarrass himself of. In such a case, the value of the relief granted which it is sought in the appeal to get rid of is the criterion for valuing appeal. It is not open to an appellant-defendant to avoid assessing his appeal at its full valua tion merely because it may prove, as a result of the appeal itself, that the plaintiff's own valuation was excessive. It is not open to him first to decide the appeal in his own favour and then to value his appeal accordingly." The principles which has been recognized throughout and flows from the cited cases is that is not necessary that the valuation of appeal should always be the same as that of original suit and secondly that the valuation of the appeal should be to the extent of the relief claimed in appeal and the decree from liability of which the appellant wants to get rid of and it should be directly proportionate to the amount decreed against him. I have no hesitation in holding that the value of the subject-matter and the relief claimed is the amount of the decree granted against the appel lant. He need not value his appeal for the relief which has not been granted by the trial Court. In the present case the value of appeal should have been Rs. 21,185 the amount for which the trial Court granted a decree in favour of the respondent No. 1 and not the whole amount of Rs.27,185 which the respondent No. t had claimed in the suit. As observed above the word 'case' of Civil nature includes suits as well as appeal and so section 7-A added by the Amending Ordinance, 1981 would also include memoranda of appeal and so he exempt from payment of Court-fee to the extent provided therein.

3. The order of the District Judge is not final and conclusive and is open to correction under section 115, C. P. C. Section 12 of the Court Fees Act read as under :

"

12. Decision of question to valuation l.-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 memorandum, as the case may be, filed, and such decision shall be final as between parties to the suit." Section 12 of the Act is a taxing provision and it does not come in the way of the appellate or revisional Court where the question involved is the application of the provision of the Act to the suit or appeal. In the present case the question was whether a memorandum of appeal is exempt from payment of Court-fee to the extent as provided in section 7-A of the Act. The appellate or revisional Court can examine the propriety of the decision of the subordinate Court and section 12 is not an obstacle nor it attaches finality to such decision. Such a question was posed before the Supreme Court of India in Nemi Chand and another v. The Edward Mills Co. Ltd. (A I R 1953 S C 28). The decision was :

"The finality declared by section 12 is limited only to the question of valuation pure and simple and does not relate to the category under which a certain suit fails." Same view is taken in the case of Mst. Shah Jehan Begum v. Muhammad Siddique and others (P L D 1971 Kar. 920). I am of the view that the order of the appellate Court is not proper and it is set aside. S. Q. Petition accepted.