After considering the question from different angles, I am of the view that in a suit for dissolution of partnership and rendition of accounts the valuation given in the plaint will determine the forum of appeal and riot the amount for which a decree be passed by the trial court. In other words, the forum of appeal in such a suit is not dependent on the amount adjudicated by the court, but on the valuation set out in the plaint. In that view of the matter, the only submission advanced on behalf of the petitioners has no legs to stand and accordingly it is rejected,Print Page
Patna High Court
Srimati Sumitra Devi And Ors. vs Jahnvi Prasad Sah on 13 October, 1993
Equivalent citations: AIR 1995 Pat 202
1. This revision application is directed against the judgment and decree dated 28-9-1974 passed by Second Additional District Judge, Patna in Title Appeal No. 132/30 of 1971/74, by which he has set aside the final decree dated 15-11-1971, passed by Subordinate Judge, Barh in Title Suit No. 100 of 1960 for dissolution of partnership and rendition of accounts and has remanded the matter to the trial court for passing a fresh judgment and decree in accordance with law.
2. The question which has been referred to the Division Bench for decision is as to whether in a suit for dissolution of partnership and rendition of accounts the valuation given in the plaint would govern the forum of appeal or the amount for which the final decree has been passed.
3. The factual foundation essential for determination of the question referred to the Division Bench is that the plaintiff-petitioner filed a suit for dissolution of partnership running in the name and style of J.P. Sahi and Co., for rendition of account and for permanent injunction restraining the defendant from removing the materials or from selling any of the assets of the partnership business.
4. The plaintiff valued the suit at Rs. 4200 / - for the purpose of court-fee as well as for the purpose of jurisdiction. The defendant appeared and contested the suit. Both the parties agreed that the suit should be disposed of on the basis of the pleadings and thereafter the suit was decreed and the preliminary decree was passed. On an application filed by the parties for preparation of the final decree, a pleader commissioner was appointed, who submitted his report. None of the parties field any objection to the said report and thereafter the pleader commissioner's report was confirmed and a final decree was passed against the defendant-opposite party for Rs. 48,103.13 paise; Rs. 47,374.38 paise being the principal amount due and Rs. 728.75 paise being the amount of interest.
5. The defendant-opposite party preferred an appeal against the said final decree and at the time of hearing of the appeal the plaintiff-respondent took objection to the maintainability of the appeal before the District Judge on the ground that the final decree had been passed for Rs.48,103.13 paise and the appeal against the said decree would lie before the High Court and not before the District Judge. The lower appellate court relying upon the decision of the Full Bench of this Court in the case of Deonath Missir v. Chandraman Missir reported in AIR 1958 Pat 430 held that the forum of the appeal is to be determined according to the valuation given in the plaint and not according to the amount for which final decree has been passed and as such the appeal was competent before it. However, the lower appellate court after hearing the parties on merit remanded the matter to the trial court for preparation of fresh final decree as mentioned above by the impugned judgment and decree.
6. At the outset I may mention that the decision of the Full Bench of this Court in the case of Depnath Missir, AIR 1958 Pat 430 (supra) which has been relied by the lower appellate Court for deciding the question of jurisdiction is not on the point. From bare perusal of the judgment it would appear that the question raised there was as to whether an appeal from a decree of Subordinate Judge may lie straight to the High Court, where the value of the original suit in which the decree was made did not exceed Rs. 5000/- on the allegation made by the appellant that the original suit should have been valued at more than Rs. 5000/- and whether in such case the High Court may thereupon direct an independent enquiry to verify the allegation and thereafter to admit the appeal on the verification of the same 7(?) Dealing with the said question this Court held that for the purpose of determining the forum of appeal under Section 21 of the Civil Courts Act, the value of the suit as given in the plaint, not challenged by the defendants and accepted by the trial court, must be deemed to be the only value of the suit, and the appeal against the final decree in the partition suit would lie to the District Judge. Thus, the aforesaid judgment is of no help in deciding the question in controversy.
7. Learned Advocate General appeared for the petitioner. No body appeared on behalf of the opposite parties.
8. Learned Advocate General contended that in a suit for partition and rendition of accounts the amount which has been found due by the court to the plaintiff from the defendant in the decree would determine the forum of appeal and not the valuation given in the plaint. Elaborating his submission he submitted that in the plaint the valuation for rendition of account is given tentatively or approximately as at that stage the plaintiff cannot say with definiteness the exact amount which is due to him from the defendant, but when the suit is decreed the amount is determined by the court and as such the amount adjudicated by the decree will determine the forum of appeal. In all fairness he brought id our notice the judgments of the different High Courts on this point which will be referred to at the appropriate places.
9. It will be apt to refer firstly the relevant provisions having bearing on the question in controversy. Section 96 of the Code of Civil Procedure (hereinafter to be referred to as as ''the Code") provides that save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the court authorised to hear appeals from the decisions of such Court. There is no provision under the Code authorising the Courts to hear the appeal from the decision of the Court exercising original jurisdiction. Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887 (hereinafter to be referred to as Civil Courts Act) contains the provisions with regard to appeals from Subordinate Judges and Munsifs. According to the said provision the appeal from a decree or order of a Subordinate Judge shall lie before the District Judge, where the value of the original suit, in which or in any proceeding arising out of which the decree or order was made, does not exceed five thousand rupees and to the High Court in any other case. Sub-section (2) of Section 22 provides that an appeal against the decree or order of Munsif shall lie before the District Judge. The pecuniary jurisdiction of the District Judge to hear appeals from the judgment and order of the Subordinate Judge has been changed from time to time by making amendments in Section 21 of the Civil Courts Act. At the time when the appeal was filed before the District Judge, the pecuniary jurisdiction of the District Judge to entertain the appeal from a decree of the Subordinate Judge was up to Rs. 10,000/-. Later on by amendment in the year 1987 by Bengal, Agra and Assam Civil Courts (Bihar Amendment) Act, 1987 the pecuniary jurisdiction of the District Judge to hear the appeal from the decree of the Subordinate Judge has been further increased and now the appeal up to the value of less than Rs. 60,000/- is to be entertained by the District Judge. This amendment came into force with effect from 8-8-1987.
10. The suit for accounts is governed by Section 7(iv)(f) of the Court-fees Act, 1870. According to which the computation of fees payable in suits for accounts shall be according to the amount at which relief sought is valued in the plaint or memorandum of appeal. Section 8 of the Suits Valuation Act provides that where in suits other than those referred to in the Court Fees Act, 1870, Section 7, paragraphs (v), (vi), (ix) and paragraph (x) Clause (d), the court fee are payable ad-valorem under the Court-Fees Act, the value as determinable for the computation of court-fee and the value for the purposes of jurisdiction shall be the same. In other words, so far as the suit for accounts is concerned, the value put for the court-fee will be the value for the purpose of jurisdiction. Thus, from the aforesaid provisions it is clear that at the relevant time, the District Judge was authorised to hear the appeal up to value of Rs. 10,000/- from the judgment and decree of the Subordiante Courts and for valuation beyond that the appeal was to be filed before the High Court. The computation of court-fee with regard to suit of accounts shall be according to the amount at which the relief sought is valued in the plaint or in the memorandum of appeal and the values for the purpose of court-fees and jurisdiction shall be the same under Section 8 of the Suits Valuation Act.
11. In a suit for rendition of accounts it is not possible for the plaintiff to give the exact amount which is due to him at the initial stage. The valuation given by him is tentative one based on guess or imagination. The correct amount payable by one party to other in the suit is determined only after the accounts are examined and this is one of the reasons that the legislature has allowed the plaintiff to give his own tentative valuation for the purpose of the court fees in the plaint. So far as the valuation of the suit for accounts are concerned, the matter is no longer res-integra and it has been held by the apex court that the plaintiff is allowed to give his own tentative valuation. Ordinarily the court will not examine the correctness of the valuation -given by the plaintiff, but if plaintiff gives arbitrary, whimsical and rediculous figures in such cases the court can reject such valuation (See AIR 1988 SC 1150 : Abdul Hamid Shamai v. Abdul Majid and AIR 1988 SC 1636: M/s. Commercial Aviation and Travel Company v. Mrs. Vimla Pannalal).
12. The question involved in the present case as noticed above, is not with regard to the valuation of the suit for the purpose of court-fee and jurisdiction, but it is with regard to determination of the question as to whether the valuation given in the plaint or the amount determined in the final decree would govern the forum of appeal.
13. It is clear from Section 21 oftheCivil Courts Act that the forum of appeal is to be determined on the basis of the valuation given in the original suit. It is not mentioned therein that the amount determined by the decree will decide the forum of appeal. The plaintiff for the purposes of payment of the court-fee, as noticed above, has been given discretion to value the plaint or memorandum of appeal with regard to suit falling under Section 7(iv)(f) of the Court Fees Act. According to Section 8 of the Suits Valuation Act, the value as determinable for the purpose of computation of court-fee shall be the value for the purpose of jurisdiction. Thus, after taking into consideration the aforesaid provisions and without noticing any of the precedents, there is no difficulty in coming to the conclusion that the valuation as given in the original suit will determine the forum of appeal.
14. However, after going through a catena of decisions on the subject, it appears that the question is not as simple as noticed by me above. Contrary views have been expressed by different High Courts on this point. So far as this Court is concerned, there are two Division Bench judgments which have taken the view that the valuation given in the suit will determine the forum of appeal in the suit of partition and rendition of accounts and not the amount of the decree that has been passed by the trial court. In the case of Raja Babu v. Gauri Lal reported in AIR 1928 Pat 535 the plaintiff brought a suit for rendition of accounts against the defendants. The suit was valued at Rs. I500/- for the purpose of court-fee and at Rs. 5, 500/- for jurisdiction. The suit was decreed and defendants preferred an appeal giving Rs. 5,500/-as valuation of the appeal and an objection was raised by the stamp reporter that the value of the suit for the purposes of jurisdiction as well as for the purposes of court-fees must be the same under Section 8 of the Suits Valuation Act and therefore, the value of the suit for the purpose of jurisdiction must have been also taken to Rs. 1500/- and in that view of the matter the appeal would lie to the District Judge. While deciding the said question this Court held that the appeal would lie to the District Judge on the basis of the valuation by treating Rs. 1500/- as valuation as given in the plaint both for the purpose of court-fee as also for the purpose of jurisdiction.
15. Again a Division Bench of this Court in the case of Ramsharan Lall v. Parvati Devi reported in 1967 BLJR 679 reiterated the same views. The fact of the said case was similar to the present case. In that case which was a suit for dissolution of partnership and rendition of accounts, the plaintiff valued the suit for the purpose of court-fee and jurisdiction at Rs. 3200/- and a preliminary decree was passed and the decree was made final and a pleader commissioner was appointed for taking accounts, who submitted a report, which was also confirmed and a sum of Rs. 38,361/12/6 was found distributable money to different partners. The plaintiff was entitled to 6 annas.share and defendant Nos. 1 and 2 each were entitled to 5 annas share. Defendant No. 1 was to pay to the plaintiff and defendant No. 2 according to their shares. The heirs of defendant No. 1, as defendant No. 1 had died earlier, filed an appeal before the Distirct Judge. An objection was raised before the District Judge by defendant No. 2 that the appeal should have been field before the High Court. The said objection was rejected by the District Judge and then he moved to High Court. Dealing with the said question it was held by this Court that "the original valuation given in the plaint of the suit will determine the forum of appeal and not the ultimate amount of decree that has been passed by the trial Court."
16. In this connection, learned Advocate General drew our attention to the two Full Bench decisions of the Calcutta High Court and Lahore High Court, wherein contrary view has been taken (See (1907) 34 Cal 954: Ijjatulla Bhuyan v. Chandar Mohan Banerjee and AIR 1934 Lah 488: Kalu Ram v. Hanwant Ram). So far as Full Bench decisions in the case of Ijjatullah Bhuyan and Kalu Ram (supra) are concerned, learned Advocate General contended that according to the aforesaid decisions the amount determined by the court below in the decree will determine the fourm of appeal. In the case of Ijjatullah Bhuyan (1907) 34 Cal 954) (supra) which was a suit for possession and mesne profits it was held as follows:
"in a suit for possesion of land and mesne profits, which was originally valued at a sum below Rs. 5,000/- and which was instituted in the court of Subordinate Judge, but in which the whole amount actually found due, inclusive of mesne profits payable by the defendant to the plaintiff, is over Rs. 5,000/-, an appeal lies to this Court and not to the District Court."
In the case of Kalu Ram AIR 1934 Lah 488 (supra) the plaintiff Kalu Ram brought a suit for dissolution of partnership and rendition of accounts. He valued the suit at Rs. 8000/-for the purpose of jurisdiction and the court-fee tentatively and stated that if higher sum was found due on taking account, he would pay the additional court-fee therein. The preliminary decree was passed dissolving the partnership and fixing shares to the parties. No appeal was filed against the preliminary decree. However final decree was passed in favour of the plaintiff only for Rs. 3375-4-6-against the defendants. Thereafter two appeals were filed, one by the defendants before the District Judge wherein they valued the suit for the purpose of jurisdiction and court-fee at Rs. 3375-4-6, which was the amount for which decree was passed against them and other by the plaintiff before the High Court against erroneous fixation of the amount due by defendants to him and prayed that the debreetal amount should be enhanced to Rs. 9,824-10-9 as found by the pleader commissioner. He valued the appeal for the purpose of jurisdiction at Rs. 8000/- and for the purpose of court-fee at Rs. 6,449-6-3, on which amount he paid ad-valorem court-fee. The plaintiff field an application for transfer of the appeal pending before the District Judge to the High Court and at that stage the defendants filed an objection that the appeal filed by the plaintiff before the High Court is not maintainable. He should have filed before the District Judge as the forum of appeal is determined neither by the value fixed by the plaintiff in the plaint nor by the amount by which the plaint desires decreetal amount to be enhanced, but by the amount found due by the trial court. Dealing with the aforesaid question the Full Bench held as follows:
"In suits for recovery of money on unsettled accounts the value of the subject matter of original suit is the value as given in the plaint unless it is enhanced by an adjudication of the Court that a higher sum is due in which case it is this latter sum which becomes the value on which the court-fee is computed and which therefore is also the proper value of purposes of jurisdiction. But there is no variation of the value as originally fixed in the plaint if the amount found due is less than that claimed or if the suit is dismissed, the plaintiff being held entitled to nothing. In the last mentioned classes of cases for the value as originally fixed continues to be the value for computation of court-fee and consequently is also the value for the purpose of jurisdiction and is the value of the subject-matter of the original suit for determining the course of appeal".
No doubt, these two judgments support the submission advanced by the learned Advocate General, but I find myself unable to agree with his submission. So far as the judgment of Full Bench of Calcutta High Court in the case of Ijjatullah Bhuyan (1907) 34 Cal 954 (supra) is concerned, the said case as well as the another Full Bench judgment of the said Calcutta High Court in the case of Bidyadhar Bachar v. Manindra Nath Das reported in AIR 1925 Cal 1076 were noticed by a Division Bench of this Court in the case of R.S. Lal (supra) and this court noticed that the aforesaid judgments were rendered in a suit for mesne profits and were governed by Section 7(v) of the Court-fees Act and provisions of Section 8 of the Suits Valuation Act were excluded from being applied to such cases. This Court also noticed that the Calcutta High Court in the case of Shailendra Kumar Palit v. Hari Charan Sadhukhan reported in AIR 1931 Cal 159 did not apply the principle laid down in the aforesaid cases in a mortgage suit for sale. This Court accordingly did not follow the principles laid down in the aforesaid two Full Bench judgments of the Calcutta High Court. So far as the Full Bench decision of Lahore High Court in the case of Kalu Ram AIR 1934 Lah 488 (supra) is concerned, that judgment, no doubt, was rendered in a suit for dissolution of partner-ship and rendition of accounts, but I find myself unable to agree with the said view on the ground that this Court in two Division Bench judgments as noticed above has consis-tently taken the view that it is the valuation given in the plaint that will determine the forum of appeal and not the amount as determined by the trial court due to the plaintiff.
17. The view taken by the Division Bench of this Court also finds support from the procedure of the other High Courts. The Full Bench of Madras High Court in the case of Putta Kannayya Chetti v. Rudrabhatla Venkata Narasayya reported in AIR 1918 Mad 998 (2) held that in the suit for accounts the value of the subject-matter for the purposes of jurisdiction is the value as given in the plaint and the adjudication of the court cannot alter it. Allahabad High Court has also taken the same view in the cases of Madho Das v. Ramji Pathak, (1894) 16 All 286, Pandit Sudarshan Das Shastri v. Ram Pershad, 7 Indian Cases 385, Muhammad Abdul Majid v. Ala Bux, AIR 1925 All 376 and Haji Ishtiaq Ahmad v. Abdul Samad, AIR 1939 All 273. Himachal Pradesh's High Court has also taken the same view. The reference may be made to the decisions in the cases ofTirath Ram v. Mangal Ram, AIR 1961 Him Pra 22 and Municipal Committee, Simla v. Gurdial Singh, AIR 1973 Him Pra 64. In the latter case a Division Bench considering several authorities held that in a suit for accounts the valuation for the purpose of court-fee and the jurisdiction is the same and forum of appeal in a suit of accounts would depend on the valuation of the relief set out in the plaint and not on the amount for which a decree may have been passed. The Bombay High Court in the case of Ishwarappa Mallaeshappa Manvi v. Dhanji Bhanji Gujjar, reported in AIR 1932 Bom 111 and Rajasthan High Court in the case of Samdu Khan v. Madanlal, reported in AIR 1959 Raj 101 have also taken the same view and it is not necessary to reiterate the same. Thus, the view taken by this Court is consistent with the views taken by the majority of the High Court as noticed above.
18. After considering the question from different angles, I am of the view that in a suit for dissolution of partnership and rendition of accounts the valuation given in the plaint will determine the forum of appeal and riot the amount for which a decree be passed by the trial court. In other words, the forum of appeal in such a suit is not dependent on the amount adjudicated by the court, but on the valuation set out in the plaint. In that view of the matter, the only submission advanced on behalf of the petitioners has no legs to stand and accordingly it is rejected,
19. In the result, this revision application is dismissed. However, there shall be no orders as to costs.
Gurusharan Sharma. J.