Thursday, 24 March 2016

How to determine appeal lies to which court?

In the order of the reference to the full bench which is adopted by the full bench itself numerous anomalies have been pointed out which would result by taking any:-view other than the one taken by the full bench, The Allahabad High Court has also token the same view in the case ofMuhammad Abdul Majid v. Ala Bakhsh (1925) I.L.R. 47, All. 534. The head-note to that decision reads as follows: ' In order to determine the proper appellate court what is to be looked at is the; value of the original suit, that: is to, say, the amount or value of the subject-matter of the suit and that must be taken to be the value assigned by the plaintiff in his plaint, and not the value as; found by the court, unless it appears that either through carelessness or gross negligence, the true value has been altogether misrepresented by the plaintiff. It is the plaintiff's valuation in his plaint which control's the jurisdiction not only of the first court but of the appellate-court.
Bombay High Court
Ahmedbhai Kadubhai vs Badruddin on 26 June, 1945
Equivalent citations: (1946) 48 BOMLR 110

Bench: Rajadhyaksha


1. The short point that arises for decision in this civil revision application is this. When an administration suit is filed and valued for the purpose of court-fees at Rs. 130 but has been by mistake valued at Rs. 5,500 for the purpose of jurisdiction, and a decree has been passed for Rs. 25,000 odd, does the appeal from such a decree lie to the District Court or to the High Court ? The facts leading to the filing of this application are somewhat complicated, but it is necessary to refer to them, as there have been decisions of this very Court at some stage of the proceedings to which I shall have to refer in deciding the point that arises for decision in this case.
2. One Kadubhai Gulabbhai died on February 10, 1894, leaving behind him his widow Ilahibegum, his son Dr. Ahmed and his two daughters Amirbibi and Fejbibi. Fejbibi was married to one Chandmia from whom she had a son named Ahmedmiya. Kadubhai Gulabbhai left some immoveable property, and in the year 1894 his widow Ilahibegum filed a suit, No. 38 of 1894, claiming her share in the property according to the Mahomedan law. The claim was compromised for Rs. 108. Fejbibi died in the year 1924. In 1925 Amirbegum filed a suit, No. 1300 of 1925, for administration of her father's share in the First Class Court at Ahrnedabad. The claim was valued at Rs. 130 for the purpose of court-fees and at Rs. 5,500 for the purpose of jurisdiction. The suit was filed against Dr. Ahmed and Chandmia. Dr. Ahmed contended that the claim had been satisfied on payment of Rs. 2,000 to the two sisters, and further alleged that in any case the claim was barred by limitation. The trial Court upheld this defence and dismissed the suit. Against that order an appeal was filed by Amirbibi in the District Court, being Appeal No. 318 of 1927, challenging the view taken by the lower Court both as regards satisfaction and the bar of limitation. It was further contended that the District Court had no jurisdiction to hear the appeal, but this view was also rejected by the District Judge who proceeded to hear the appeal on merits. On August 11, 1928, the District Court held that the claim of the plaintiff had not be satisfied and that the suit was not barred by limitation. Accordingly the decree of the trial Court was set aside and the suit was sent down for trial on other issues. Against that decree of the District Court Dr. Ahmed filed an appeal to the High Court being Appeal No. 52 of 1929. In this appeal he contended that the District Court had no jurisdiction to hear the appeal, that the claim of the plaintiff was satisfied and that in any case the claim was barred by limitation. On September 12, 1930, the High Court upheld the decision of the District Court on all the points and dismissed the appeal. Thereupon the matter went back to the trial Court for decision on the remaining points at issue. While the suit was pending before the trial Court, the plaintiff and Dr. Ahmed arrived at a compromise, and on September 15, 1931, a purshis was filed in the Court to the effect that the claim of the plaintiff had been satisfied by the payment of Rs. 2,500. Chandmiya died on September 30, 1931, and his son Ahmedmiya applied to be brought on record as the legal representative of his father Chandmiya. On November 5, 1931, the compromise between the plaintiff and Dr. Ahmed was ordered to be recorded, and on April 20, .1932, the Court directed that Ahmedmiya's name should be transposed as plaintiff. The revision application filed in this, Court against the order of transposing Ahmed's name as plaintiff, was rejected. Thereafter Ahmed assigned his right, title and interest in favour of one Badruddin Ziauddin, and on November 7, 1933, the Court substituted Badruddin's name as the plaintiff in the suit. Ultimately an account was taken and eventually the learned trial Judge passed a decree in favour of the plaintiff for, a sum of Rs. 25,493-14-6. Against this decree Dr. Ahmed filed an appeal in the District Court of Ahmedabad being Appeal No. 241 of 1941. After the appeal had been heard for some days it was contended before the learned District Judge that the appeal should properly have been filed not in the District Court but in the High Court, inasmuch as the decree in the administration suit had been passed for a sum of over Rs. 25,000. The learned District Judge upheld this objection and being of opinion that the appeal should have been filed in the High Court returned it for presentation to this Court, It is against that order that this application has been filed in revision.
3. Under Section 8 of the Bombay Civil .Courts Act of 1869 " except as provided in Sections 16,17 and 26, the District Court shall be the Court of Appeal from all decrees and orders passed by the subordinate Courts from which an appeal lies under any law for the time being in force." Under this section therefore an appeal from a decision of the First Class Subordinate Judge would lie to the District Court unless the case falls under Section 261 of the Bombay Civil Courts Act. Under Section 26, as it now stands, in all suits decided by a Subordinate Judge of which the amount or value of the subject-matter (exceeds five thousand rupees, the appeal from his decision shall be direct to the High Court. Therefore the real point to be decided in this application is whether in the suit which the learned First Class Subordinate Judge of Ahmedabad decided the value of the subject-matter exceeded Rs. 5,000 or not. Mr. J. C. Shah for the applicant referred me to the case of Shet Kavasji v. Dinshaji (1897) I.L.R. 22 Bom. 963, which was a case similar to the one with which I am dealing. In that case an administration suit was filed in the Court of the Second Class Subordinate Judge valuing the relief claimed at Rs, 130. The Subordinate Judge found that the property in suit was worth over a lakh of rupees, that the liabilities came) to Rs. 5,729, and that the defendant was indebted to the estate in the sum of Rs. 15,199. Hel drew up a preliminary decree, directing (inter alia) that the defendant should pay this amount into Court within two weeks. Against this order the defendant appealed to the District Court. The District Judge returned the appeal for presentation to the High Court, on the ground that the subject-matter exceeded Rs. 5,000. It was held by the High Court reversing the order of the District Judge that the appeal lay to the District Court. But that case does not really support the contention taken up by Mr. J. C. Shah. Section 26 as it then stood provided that " in all suits decided by a Subordinate Judge of the first class in the exercise of his ordinary and special original jurisdiction of which the amount or value of the subject-matter exceeds five thousand rupees, the appeal from his decision shall be direct to the High Court." As that suit was decided by a Second Class Subordinate Judge, a 26 of the Bombay Civil Courts Act did not come into play, and therefore under Section 8 of the Bombay Civil Courts Act the appeal obviously lay to the District Court. It was on that point that the case was decided. Now, by the amendment effected in the year 1930 the words " of the first class in the exercise of his ordinary and special original jurisdiction " occurring in Section 26 of the Bombay Civil Courts Act have been repealed. The result therefore is that the forum of appeal depends not upon the ' class' of the Subordinate Judge who tries the; suit, but solely on whether in the suit tried by him the amount or the value of the subject-matter exceeds Rs. 5,000 or not. If it exceeds Rs. 5,000, then the appeal lies to the High Court. If it does not, the appeal lies to the District Court. The learned District Judge was therefore in my opinion right in distinguishing the case of Shet Kavasji v. Dinshaji on the ground that it was decided prior to the amendment of Section 26 of the Bombay Civil Courts Act.
4. The learned District Judge, however, has laid considerable emphasis on the recent decision of this Court in Kashiram Senu v. Ranglal Motilalshet (1941) 43 Bom. L.R. 475, In that case it was held that:
Where a suit for account, in which the claim is valued at an arbitrary figure, results in;a decree for a sum of money, the party appealing from the decree should value the claim in appeal at the amount of the decree, and not at the arbitrary figure, for purposes of paying the Court-fees.
And the learned District Judge goes on to observe: " By an analogy this detistion would apply to the valuation of an appeal for jurisdiction also ". In my opinion the learned Judge was in error in drawing this analogy. The case of Kashiram Senu v. Ranglal Motilalshet only decides the question about the payment of court-fees in an appeal from the decree in an accounts suit where a specified sum is directed to be paid. It has no reference to the Court in which such an appeal has got to be filed. There are two objections to the analogy which the learned District Judge draws from this decision. In the first place it has to be assumed if the view of the District Judge is correct that the Suits Valuation Act applies also to appeals; and on this assumption the argument is that as the court-fee is to be paid on the valuation of the suit as determined by the decree in the trial Court, the jurisdiction for the purpose of appeal is also determined by the same valuation under Section 8 of the Suits Valuation Act. But the Suits Valuation Act does not apply to appeals but only to suits. In this connection I need only refer to the observations of Jardine J. in the case of Ibrahimji Issaji v. Bejanji Jamshedji (1895) I.L.R. 20 Bom. 265, 268. Further, the decision in Kashiram Senu v. Ranglal Motilalshet is primarily based on a construction of Section 7(iv) (f) of the Court-fees Act which applies both to suits and to appeals. It is with reference to that section that the court-fees have got to be determined, and it was that section, that was construed by this Court in Kashiram Senu v. Randal Afotilalshet. In the present case the forum of appeal must be decided by a reference to Section 26 of the Bombay Civil Courts Act of 1869 tender which the deciding factor is what is the valuation or the subject-matter of the suit, The learned District Judge has at three or four places referred to " the subject-matter of appeal" and has held that because an appeal is filed from a decree where: Rs. 25,000 odd have been directed to be paid the subject-matter of the appeal is that sum and that therefore the appeal must lie to the High Court. The learned Judge has in any opinion ignored the words of Section 26 of the Bombay Civil Courts Act which in terms refers to the value of " the subject-matter of the suit" and not to " the value of the subject-matter of the appeal." It is the value of the subject-matter of the suit that must decide the Court to which an appeal will lie.
5. The next point then for consideration is what is the value of the subject-matter of the suit. It was contended by Mr. N.C. Shah for the opponent that a suit of this kind could not be regarded as a suit for accounts and therefore a suit falling under Section 7(iv),(f) of the Court-fees Act, For this purpose he referred me to a decision of a single Judge of the Madras High Court in the case of Khaja Moideen v. Abdul Gaffoor [1942] Mad. 455. It was held in that case that:
a suit for the administration of the estate of a deceased person is not merely a suit for accounts. It should be valued for purposes of Court-fee under Article 17B of Schedule II of the Court-fees Act and not under Section 7(iv) (f), The jurisdiction of the Court which can try such a suit is determined by the market value of the suit property.
As against this decision of a single Judge of the Madras High Court there are two decisions of the division bench of this Court which take the contrary view. In Khalifa v. Shekh Adam Husenally (1915) I.L.R. 39 Bom. 545: S.C. 17 Bom. L.R. 574 it was held that an administration suit of this kind properly fell under Section 7(iv) (f) of the Court-fees Act, At p. 551 the learned Chief Justice observes as follows:
That being so, there does not appear to be any reason why this should not be treated as a suit for account and for the share which may be found due to the plaintiff upon taking of such account, and if it is a suit for an account falling under Section 7, Clause (f) of the Court-fees Act, the plaintiff is at liberty to value it at Rs. 130 or any other sum she pleases.
In a more recent decision of this Court in Maganlal v. Kanchanlal (1936) 38 Bom. L.R. 754 an argument was advanced that the effect of the declaration asked for in that suit would be that the plaintiff would get possession of the immoveable properties admittedly exceeding Rs. 5,000 in value, and that therefore the suit should properly be regarded as a suit coming under d. (iv) ofSection 7 of the Court-fees Act. In dealing with that contention Mr. Justice Broomfield observed (p. 758):
We are not prepared to say that this case can really be distinguished from such cases as Khatija v. Shekh Adam Husenally and Bai Amba v. Pranjivandas Dullabhram (1894) I.L.R. 19 Bom. 198, where suits claiming reliefs similar to the reliefs claimed here were held to be administration suits coming under Section 7, cl (iv) (f), of the Court-fees Act, in spite of the fact that the final decree to be passed might award possession of immoveable properties.
Further this Court held at an earlier stage of the present case that the suit was governed bySection 7(iv)(f) of the Court-fees Act. The learned District Judge had on August 11, 1926, taken the view that the suit was an administration suit and that the plaintiff was therefore at liberty to value it at his will for the purpose of court-fees under Section 7(iv) (f) of the Court-fees Act. In appeal No. 52 of 1920 this Court confirmed the decree of the District Judge and Mr. Justice Patkar observed as follows:
The present suit for administration of the estate of Kadubai is substantially a suit 'for accounts governed by Section 7(iv) (f) of the Court-fees Act. We therefore think that under Section (iv)(f) and Section 8 of the Stilts Valuation Act the valuation for purposes of. court-fees. and jurisdiction is the same, and the appeal in the present case lay to the District Court. The learned District Judge held that the suit, was, tried as an, ordinary suit and not as a special jurisdiction suit. If there was any mistake in assessing the pleaders' fees and the suit was treated as special jurisdiction said that was a matter for the amendment of the decree,. and would not invest the Court with special jurisdiction when the suit was really brought in its ordinary jurisdiction.
I must, therefore, in view of these decisions, particularly the decision of this Court in tins very matter, hold that the present suit for administration is a suit for accounts, governed by Section 7(iv),(/) of the Court-fees Act and normally an appeal would- lie to the District Court.
6. The question then arises whether the fact that in this administration suit a decree had been passed for a sum of more than Rs. 5,000 makes any difference in deciding the forum for filing the appeal. The learned advocate Mr. N. C. Shah contended that Section 26 of the Bombay Civil Courts Act merely refers to the value of the subject-matter exceeding Rs. 5,000, and he argued that although the suit may have been filed upon a notional valuation, the decree of the Court made it clear that the value of the Subject-matter was above Rs. 5,000 and that therefore the appeal should lie to the High Court. The question therefore arises whether the fact that the decree has Been passed for a sum exceeding Rs. 5,000 does make any difference in deciding the forum to which the appeal lies. Prima facie if the Court to which an appeal lies was to be decided by the amount for which a decree has been passed, numerous complications are likely to arise. For instance, if in a suit for accounts filed on notional valuation of Rs. 130 a decree is passed for Rs. 3,000 and if the plaintiff is dissatisfied with the decree and claims a sum of Rs. 10,000, then according to the view taken by the learned District Judge the appeal would lie to the High Court. If on the other hand, the defendant was dissatisfied with the decree for Rs. 3,000 and wanted to get rid of it, then again according to the view of the learned District Judge the appeal would lie to the District Court. These difficulties do not arise in determining the question of, court-fees. As has been held by this Court in Ishwarappa v. Danji (1931) 34 Bom. L.R. 44, the notional valuation on which the original suit was filed must give place to the actual valuation found as a result of the suit in deciding the court-fees to be paid on a memorandum of appeal. Taking the instance which I have just quoted, if a decree is passed for Rs. 3,000 and if the plaintiff claims more than Rs. 3,000, he would have to pay the court-fees on the difference between the amount claimed by him and the sum of Rs. 3,000. On the other hand, if the defendant wants to get rid of the liability of payment of Rs. 3,000, he would have to pay court-fees on that sum for filing the appeal. But these questions do not touch the forum where an appeal has to be filed, and it was held by this Court in Gopal v. Chimabai (1938) 40 Bom. L.R. 1040 that in such a case the appeal trust lie to the District Court, In that case a suit had been filed for accounts in the Court of the Subordinate Judge of Second Claste and the claim was valued at Rs. 200. The decree passed in that suit was for Rs, 12,000 odd, and an appeal from that decree was filed to the High Court when an objection was taken that the appeal lay to the District Court. In view of the fact thatSection 26 of he Bombay Civil Courts Act as amended made it immaterial by which Court the decree was passed, the point at issue was what was the value of the subject-matter of the suit. It was held that the case was governed by Section 8 of the Bombay Civil Courts Act, and that the appeal lay to the District Court and not to the High Court, On behalf of the opponent a reference is made to the ruling in Ibrahimji Issaji v. Bejanji Jamsedji (1895) I.L.R. 20 Bom. 265. That was a suit for an account of partnership "dealings, and the plaintiff valued the claim at Rs, 600. The Subordinate Judge passed a decree awarding to the plaintiff a sum of Rs. 30,000 odd. The defendants appealed to the High; Court from the decree of the Subordinate Judge, The plaintiff objected that the appeal lay to the District Court and not to the High Court; and it was held that the value of the subject-matter of the suit exceeded Rs. 5,000 and that therefore the appeal lay to the High Court under Section 26 of the Bombay Civil Courts Act. The correctness of that decision however has been doubted, in the case of Shet Kavasji v. Dinshaji (1897) I.L.R. 22 Bom. 963 where Parsons J. observes as follows, (p. 965):
I have some doubt of its correctness, and would point out what seems to me an anomaly, viz., that though a plaintiff is allowed to place any value he pleases on his: claim in order to select the forum in which he may flip his suit, the permission does not extend beyond decree, the forum of, appeal being governed not by that value but by the value decreed.
And although an attempt seems to have been made to distinguish Ibrahimji Issajfs case in the case of Gopal v. Chimabai, it seems to me that the latter decision in effect-dissents from the view taken in that case. The view taken in Gopal v. Chimabai is in consonance with the view taken by the other High Courts in India. In a full bench-decision of the Madras High Court in Kamayya Cketty v. Venkata Narasayya (1916) I.L.R. 40 Mad. 1 it was held that Where a District Munsif passed a decree for more than Rs. 5,000 in a suit for account wherein the plaintiff valued the subject-matter of the suit at an amount within the pecuniary jurisdiction of the Munsif [then] the appeal from the Munsif's decree lay to the District Court and not to the High Court.
In the order of the reference to the full bench which is adopted by the full bench itself numerous anomalies have been pointed out which would result by taking any:-view other than the one taken by the full bench, The Allahabad High Court has also token the same view in the case ofMuhammad Abdul Majid v. Ala Bakhsh (1925) I.L.R. 47, All. 534. The head-note to that decision reads as follows: ' In order to determine the proper appellate court what is to be looked at is the; value of the original suit, that: is to, say, the amount or value of the subject-matter of the suit and that must be taken to be the value assigned by the plaintiff in his plaint, and not the value as; found by the court, unless it appears that either through carelessness or gross negligence, the true value has been altogether misrepresented by the plaintiff. It is the plaintiff's valuation in his plaint which control's the jurisdiction not only of the first court but of the appellate-court.
And lastly, there is the decision of the Calcutta High Court in the case of Bidyadhar Bachqr v. Manindra Nath Das (1925) I.L.R. 53 Cal. 14. At p. 30 the following observations occur in the judgment of Mr. Justice Ghose who delivered the leading judgment in the case:
The only difficulty suggested in accepting the view I stated is with regard to the forum of appeal if the Munsif passes a decree exceeding Rs. 5,000. An appeal from the decree of 8 Munsif lies in all cases under Section 21(2) of Act XII of 1887 to the District Judge, But where the value of the original suit exceeds Rs. 5,000, the appeal from a decree of the Sub-judge lies to the High Court. The forum of appeal is determined with reference to the value-of the suit, and not the amount- decreed.
7. In view of these decisions and particularly of our own High Court in the case of Gopal v. Chimabaito which the attention of the learned District Judge does not appear to have been drawn, I must hold that the value of the subject-matter of the suit in this case was the value which the plaintiff himself put when filing the suit and is not affected by the fact that the decree for an amount exceeding Rs. 5,000 is passed by the trial Judge. Although the suit was valued for the purpose of jurisdiction at Rs. 5,500 it has been held by this Court in an earlier appeal in these very proceedings that under Section 8 of the Suits Valuation Act the value for the purpose of jurisdiction must be taken to be the same as that for the purpose of Court-fees, i.e., Rs. 130s That being the value of the subject-matter, Section 26 of the Bombay Civil Courts Act, does not apply, and under Section 8 of the Act, the appeal must lie to the District Court.
8. I must therefore make this rule absolute with costs.

9. The memorandum of appeal, along with the papers of the case, will be sent back to the District Court with a direction that the learned District Judge will proceed with the hearing of the appeal on merits and dispose of it according to law.
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