In Nemi Chand v. Edward Mills co. Ltd., , dealing with the question of court-fees payable in appeal for additional relief, it was observed that a menmorandum of appeal, as provided in ART. 1 OF Schedule 1, of Court-fees Act , has to be stamped according to the value of the subject-matter in dispute in appeal; in other words, the relief claimed in the memorandum of appeal their Lordships observed, determines the value of the appeal for purposes of court-fees.Print Page
Bombay High Court
Francisco Luis Jose D Souza vs Vithal Bhadu Tamboskar on 18 November, 1988
Equivalent citations: AIR 1989 Bom 303, 1988 (2) BomCR 440, (1989) 91 BOMLR 570
Bench: Couto, Kamat
1. Whether the valuation for the purpose of jurisdiction of a suit for mandatory injunction and meane profits can be enhanced while filing an appeal against the decree of the trial Court by adding amount of mesne profits claimed till that date altering thereby the appellate forum from the District Court to the High court, is the moot question that this appeal gives rise to at the threshold.
2. The appellant filed a suit for mandatory injunction and mesne profits against the respondent and valued if for the purpose of court-fees and jurisdiction at Rs. 12,000/-. He quantified the mesne profits payable to him at the time of the institution of the suit at Rs. 5000/- and further claimed mesne profits at the rate of Rs. 1000/- per month from the month of June, 1980 onwards. By judgment dated 8th Jan. 1985, the learned Addl. Civil Judge S.D, Margao dismissed the appellant's suit and hence, this appeal was filed in this Court, valuing it at Rs. 74,000/- on basis of a claim of 67 months of meane profits at the rate of Rs. 1000/- per month from June, 1980.
3. Section 6 of the Goa, Daman and Diu Civil Courts Act , 1965 provides that save as other wise expressly provided in the Act , 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 in force.Section 20 prescribes there shall be two classes of Civil Judge, namely, Senior Division and Junior Division Judges, and lays down that the jurisdiction of a Senior Civil Judge will extend to all original suits and proceedings of a civil nature, while the jurisdiction of a Junior Civil Judge is restricted to all original suits and proceedings of a civil nature wherein the subject matter does not exceed in amount or value ten thousand rupees. Section 22 deals with appeals from the decisions of Civil Judges and postulates that in all suits decided by a Civil Judge of which the amount or value of the subject matter exceeds ten thousand rupees, the appeal from his decision shall be direct tot he High Court.
4. Thus, in view of these provisions of the Civil Courts Act and the valuation of the suit at Rs. 12,000/- made by the plaintiff/appellant at the time of its institution for the purpose of jurisdiction, the question whether the appeal against the aforesaid decree of the trial Court lies to the District Court or to the High Court arises. Mr. Shinkre, addressing himself to this problem, urged that the appeal filed in the Court is competent. He contended that the mesne profits claimed had been quantified at Rs. 1000/- per month and at the time of the filing of the appeal were amounting to Rs, 74,000/-. Therefore even to prevent evasion to the payment of court fees, the appeal had to be filed in this court, he further submitted drawing support in In re Kudappa Subbamma AIR 1957 Andh Pra 6, Ujahannan Kuriyan v. Uthuppu Varkey, AIR 1954 Tra. Co., 174, Nemi Chand v. Edward Mills co., Ltd., , in State of Maharashtra v. Krishnan Padanayar v. Parameswaran, AIR 1952 Trav. Co. 43.
5. Having regard to the importance of the problem before us, we though it necessary to hear on the point the learned Government Advocate and some leading members of the Bar. Apart from the learned counsel appearing for the respondent. We record here with great pleasure out deep appreciation for the unbounded cooperation and able assistance rendered to us in this case, as always, by Mr. Nadkarni, Mr. Kakodkar, Mr. Usgaoncar and Mr. Rebello.
6. Mr. Nadkarni, the learned Government Advocate strongly opposed the above views of Mr. Shinkre. He has indeed contended that the jurisdiction of the Court is fixed by the valuation of the suit at the time of its institution. That valuation reflects the value of the subject matter of the suit. It remains constant and governs also the appeals inasmuch as it fixes what is the pecuniary jurisdiction of the appellate Court. the valuation is made under the provisions of the Suits Valuation Act and not by the Court-fees Act . which is a fiscal statute, and therefore, the appellate forum is not determined by the court-fees paid, but by he valuation of the subject matter of the suit, he urged placing reliance in a couple of authorities to which we will advert in due course. He then submitted that s. 6 of the Goa. Daman and Diu Civil Courts Act lays down the general and basic rule that the District Court will be the court of appeal from all the decrees and orders from which an appeal lies save as other wise provided. The exception to this rule is, according to the learned counsel, s.22 which provides that the appeal lies directly to the High Court in all suits decided by a Civil Judge where the value of the subject matter exceeds Rs. 10,000/-. Hence there is no manner of doubt that the appellant having valued his suit at Rs. 12,000/- for the purpose of jurisdiction of the appellate court also, with the result that this appeal is incompetent as filed in the wrong forum.
7. Disagreeing with Mr. Shinkre, Mr. Kakodkar, Mr. Usbaoncar and Mr. Rebello submitted that the view taken by the learned counsel for the appellant is not correct and fully supported Mr. Nadkarni. Mr. Rebello however added that the provision of S.6 in conjunction with s.22 of the Goa, Daman and Diu Civil Courts act makes it clear that it is the value of the subject matter of the suit that fixes the pecuniary jurisdiction of the courts, whether trial or appellate, and Mr. Usgaoncar brought to our notice the decision of the Court in First Appeal No. 49/B/1980 which is contrary to Mr. Sinkre's view as well as the decision of the Division Bench of this Court is G.L. Thokal, v. R.J. Deshmukh, (1975) 77 Bom LR 580 and of the Madhya Predesh High Court inShivaji v. Deoji, .
8. there is great merit in the submission of the learned Government Advocate. Unquestionably, the pecuniary jurisdiction of a Court is determined by the value of the subject matter of the suit i.e. by the relief claimed. Section 6, C.P.C certainly gives a clear indication that this is so, for it provides that nothing contained in the Code shall operate to give any court jurisdiction over suits where the value of the subject matter exceeds the pecuniary limits of its ordinary jurisdiction S. 15 corroborates this view by postulating that every suit shall be instituted in a court of the lowest grade to try it. There is thus no manner of doubt that it is the value of the suit, that is, the value of the subject matter thereof that determines the court in which the suit is to be filed and also determines the forum of the appeal meaning by that the Court to which the appeal lies. Now, theSuits Valuation Act , which otherwise as observed in Ahmedbhai Kadubhai v. Badruddin, AIR 1946 Bom 356, applies only to suits and not to appeals, prescribes the mode of making the valuation of the suits for the purpose of jurisdiction and In some cases, the valuation is left entirely to the discretion of the plaintiff. In such cases, it is the plaintiff's valuation in the plaint that fixes the pecuniary jurisdiction of the Court and not the amount which may be found and decreed. This valuation is clearly distinct from the valuation for the purposes of court-fees, aim of which is, as rightly pointed out by Mr. Nadkarai, purely fiscal.
9. This otherwise seems to be a settled position of law and appears to view the consensus of several High Courts, including our own, Indeed, in Putta Kannayya Chetti v. Venkata NarasayyaAIR 1981 Mad 988 (2) (FB), it has been held that where a suit for accounts is instituted in a District Munsif's Court, the plaintiff valuing the subject-matter of the suit at an amount within the pecuniary jurisdiction of the District Munsif, and a decree is passed for more than that pecuniary jurisdiction, the appeal from than that pecuniary jurisdiction, the appeal from that decree lies to the District Court and not to the High Court. it has been further observed that in suits for accounts or mesne profits, the Court can award such sum as if finds due to the plaintiff, although such sums are above the pecuniary limits of its jurisdiction. It has also been held that value of the subject matter of a suit must be its valuation at the time of its institution, and the amount or value of the subject-matter as fixed in the plaint should determine the Court to which the appeal lies, since the theory of an appeal is that the suit is continued in the Court of appeal and reheard there.
In Ishwarappa Mallashappa v. Dhanji Bhanji 34 Bom LR 44 : (AIR 1932 Bom 111), the Court observed that if the plaintif's valuation in the plaint which fixes the jurisdiction of the Court and not the amount which may be found and decreed by the Court.
In Gopal Trimbakrao v. Chimabai Prabhakar, AIR 1938 Bom. 464, it has been held that in a suit for accounts valued at Rs. 200/- and tried by a Sub-Judge of the Second Class, although a decree is passed for over Rs. 5000/-, the appeal will be lie to the District Court and not to the High Court, as the jurisdiction has been fixed by the valuation in the suit.
In Kashiram Sonu v. Ranglal Motilalshet Marwadi, AIR 1941 Bom 242, it has been observed that an appellant in suit originally instituted for an account seeking to set aside a final decree for a specific sum found to be due from him is bound to value his appeal at the amount of that decree at the least. It was further observed that it is not open to such appellant to value the appeal at a notional amount.
In Ahmedbhai Kadubhai v. Badruddin (supra), after observing that the Suits Valuation Act does not apply to appeals but only to suits, the learned single Judge of this Court observed that an administration suit is a suit for accounts governed by S. 7(iv)(f) of the Court-fees Act and where an administration suit is valued for the purpose of court-fees at Rs. 130/- but has been, by mistake, valued at Rs. 5500 for the purpose of jurisdiction, and a decree has been passed for Rs. 25, 000/- odd, the value of the subject-matter of the suit is the value which the plaintiff himself has put when filling the suit and is not affected by the fact that the decree for an amount exceeding Rs. 5000/- is passed by the trial Judge and although the suit is valued for the purpose of jurisdiction at Rs. 5500/-. It has been further observed that under S. 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. 130/- and that being the value of the subject-matter S. 26 of the Bombay Civil Courts Act does not apply and under S. 8, the appeal must lie to the District Court.
In Simla Municipal Committee v. Gurdial Singh, , it has been held that it is the valuation as fixed by the plaintiff in the plaint at the time of the institution of the suit which determines the forum of appeal.
In Shivaji v. Deoji, , it has been held that once the subject-matter of a suit has been properly valued for the purposes of court-fees, then such valuation continues to be the proper valuation for the purposes of subsequent appeal also and that the value of a particular relief in appeal remains constant whether the appeal be against its grant or its refusal by the lower Court. It was also observed that any other view would result in great confusion in assessing court-fees on appeals and would result in quite different court-fees being payable in exactly similar disputes according as the plaintiff or the defendant was the appellant. Further, that the nature of the dispute is not changed in appeal but remains the same. The Division Bench of the Madhya Pradesh High Court relied in the observations made in Gopalakrishna Pillai v. Meenakshi Ayal, , to the effect that with regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit and that in view of O.7, R.7, C. P.C and S. 7(I) of the Court-fees Act , the plaintiff must plead this cause of action, specifically claim a decree for the approximately and pay court-fees thereon and also to effect that with regard to future mesne profits, the plaintiff has no cause of action on the date of the institution of the suit, and It is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit. Therefore, in the light of these observations, the Division bench of the Mahdya Pradesh High Court held the view that is the valuation given in the plaint that governs the pecuniary jurisdiction of the Court.
In G.L. Thokal v. R. J. Deshmukh, (175) 77 Bom LR 580, while dealing with the question of the jurisdiction of a single Judge of the High Court and in light of the Appellate Side Rules of the Bombay High Court, the Division Bench observed that it is obvious that each suit has a subject matter and in respect of this subject matter not only it is necessary to pay the court fees but it is obligatory for a litigant to institute his suit in the court of lowest jurisdiction. Since the jurisdiction of the courts have been defined in terms of monetary value of the subject matter of the suits and appeal, the subject matter of each suit has got to translated in terms of money value for the purpose of pecuniary jurisdiction of the suit as ell as the Court. The Division Bench proceeded in observing that so rendered, that becomes the value of the subject-matter in the suit and that it is the value of the subject matter which determines the jurisdiction of the court whether trial court or the appellate court.
The same view was taken by my learned brother, Justice Kamat in First Civil Appeal No. 49/B/1980.
In Anad Mr. V. Mahda Bhat AIR 1960 J and K 89, it has been held that the true effect and purport of S. 8 of the Suits Valuation Act is to fix the same value for purpose of jurisdiction in respect of the suit as well as the appeal and that it does not therefore, avail the appellant in that case to say that as he had to pay court-fees in the appeal on the amount of the final decree the valuation made in the plaint for the purpose of jurisdiction determines the value of the appeal for the purpose of jurisdiction also. So the Court further observed that the correct position is that the jurisdictional value of the suit is the jurisdictional value of the appeal as well and as such the forum of appeal has to determined on the basis of the jurisdictional value stated in the plaint and in accordance with the provisions of the Civil Courts Acts.
In Mohinder Singh v. Jagjit Singh, , it was observed that the jurisdictional value of a suit does not change with the form of the decree and the forum of appeal is to be determined by the forum of appeal is to be determined by the value of the suit and not by the value of the decree. The pecuniary jurisdiction of the court depends on the amount or value of the subject matter of the suit in the trial Court. this value has nothing to do with the amount decreed and ordinarily, the value of the suit remains constant and does not change whether the plaintiff's suit is dismissed or is accepted party or wholly.
10. It is thus clear, the view of the above position of law the provisions of Ss. 20 and 22 of the Goa, Daman and Diu Civil Courts Act read together with the valuation of the suit at Rs. 12,000/- made by the plaintiff/appellant, that the appeal against the impugned judgment and decree dt. 18th Nov. 1985 is lying to the District Court, the appeal filed in this Court being as such incompetent.
11. We may however make, at this stage, a reference to the authorities relied upon by Mr. Shinkre in support of his submissions. At the outset we may point out that the aforesaid authorities are merely dealing with the question of the payment of court fees, and therefore, they are not of any help to decide the question before us. In fact, In re Kudappa subbamma, AIR 1957 Andh Pra 6, the Court observed that in a suit for mesne profits, whether past or future, if the meane profits are ascertained and decreed, the party preferring an appeal should pay court-fees on the amount or value of the subject-matter in the appeal and if the defendant files an appeal seeking to get rid of the decree in whole or in part, he will have to pay court-fe in whole or in part on the amount decreed which he seeks to vacate. Similarly, if a plaintiff seeks to file an appeal questioning the correctness of the amount ascertained and decreed in his favour, the subject-matter of the appeal will be the excess amount he claims to have over that already awarded to him, and therefore, he will have to pay ad valorem court-fee on the additional amount he claims. The Court observed that in either case, the meane profits are ascertained and the party, be he a plaintiff or a defendant, knows the exact amount, which is the subject-matter of appeal.
In Ulahannan Kuriyan v. Uthuppu Varkey, AIR 1954 Tra-Co., 174, cross-objections seeking to set aside lower Court's decree negativing claim for mesne profits subsequent to the suit has been filed. The Division Bench of the Travancore-Cochin High Court, dealing with the said cross-objections held that the court-fee has to be paid on the quantum of the claim for the period between the date of institution of the period between the date of institution of the suit and the date of the decree appealed against.
In Nemi Chand v. Edward Mills co. Ltd., , dealing with the question of court-fees payable in appeal for additional relief, it was observed that a menmorandum of appeal, as provided in ART. 1 OF Schedule 1, of Court-fees Act , has to be stamped according to the value of the subject-matter in dispute in appeal; in other words, the relief claimed in the memorandum of appeal their Lordships observed, determines the value of the appeal for purposes of court-fees.
In State of Maharashtra v. Mishrilal Tarachand Lodha, , the Court observed that the expression 'amount or value of th subject matter in dispute' in the Bombay Court-fees Act should not be construed in the light of the construction placed on a similar expression for the purposes of considering whether the case had come within the rule allowing the High courts to give leave for appeal to the Supreme Court. in fact the Bombay Court-fees Act in a taxing statute and its provisions have to be construed strictly, in favour of the appellant. The Court further observed that the memorandum of appeal has to be properly stamped considering the reliefs claimed in that appeal.
Finally, in Krishnan Padanayar v. Parameswaran Nair, AIR 1952 Trav Co. 43, the Court held that when in a suit for accounts the plaintiff complains that the trial Court has not made the defendant liable for all the amounts he is truly liable for, it is open to the plaintiff to have the whole case re-opened in appeal from the final decree on court-fee paid on a notional valuation.
It is seen that the above authorities relied upon by Mr. Shinkre merely laid down that if a particular claim above the decree is made corresponding prescribed court-fees are to be paid. The said authorities do not deal with the question of the forum to which the appeal lies.
12. In view of the above discussion, it necessarily follows that this appeal is incompetent inasmuch as it was not filed in the proper forum which is by virtue of s. 22 of the Goa. Daman and Diu Civil Courts Act the District Court. We therefore while so holding direct that the memo of appeal be returned to the appellant to be presented in the proper Court. there will be no order as to costs in the circumstances of the case. Order accordingly.