P.L Bhargava, J.:— On the 5th September, 1938, L. Mangu Lal and L. Raja Ram, who are the respondents in this appeal, instituted a suit against Sheikh Ghalib Rasool and Mst. Zahoor Jahan Begam, the appellants, in the court of the Civil Judge of Saharanpur, for rendition of accounts of a partnership, which had been dissolved in the year 1335, and for recovery of such amount as might be found due to them. The plaintiffs valued the suit at Rs. 130 and stated in their plaint that, if any sum in excess of Rs. 130 would be found due, they would pay additional court-fee on that sum at the time of the execution of the decree. In their written statement, filed on the 15th February, 1939, the defendants urged that, on accounts being taken, the plaintiffs would be found liable to pay a sum of money to them. On the 27th May, 19-12, a preliminary decree was passed and a commissioner was appointed to examine the accounts. The commissioner examined the accounts and reported that no amount was due to the plaintiffs from the defendants; but the defendants were entitled to recover Rs. 12,224-5-9 from the plaintiffs. The plaintiffs filed objections to the commissioner's report; and the trial court found that nothing was due to either party from the other. Accordingly, a final decree dismissing the suit was passed on the 19th August, 1943.

The plaintiffs submitted to the decree; but, on the 28th September, 1943, the defendants preferred an appeal against the final decree to the District Judge of Saharanpur. Their prayer was that the decree of the trial court be set aside and “a correct decree in view of the report of the commissioner be passed.” They valued the appeal at Rs. 130. The valuation was impugned by the plaintiffs, who averred that the appeal ought to have been valued at Rs. 12,224-5-9 and an ad valorem court-fee paid thereon. The learned District Judge upheld the plaintiffs' objection and ordered the defendants to pay court-fee on Rs. 12,224-5-9.

The defendants have filed this appeal, under section 6-A of the Court Fees Act (VII of 1870), as amended by the United Provinces Court Fees (Amendment) Act (XIX of 1938), against the order of the District Judge calling upon them to make good the deficiency in court-fee.

The appeal came up for hearing before a division Bench of this Court; and, on behalf of the appellants, it was conceded that, on the memorandum of appeal filed in the court of the District Judge, the court-fee was payable in accordance with the provisions of section 7(IV)(b) of the Court Fees Act, as amended by the Local Act XIX of 1938; but it was contended that the proviso contained therein had no application as the appeal was against the final decree; and that the relief claimed in the appeal had been property valued and the court-fee paid thereon was sufficient. It was further contended that the point must be taken to be concluded by the decision of their Lordships of the Privy Council in Faizullah Khan v. Maula-dad Khan; and strong reliance was placed upon the interpretation put upon that decision by the Madras High Court In re. Nukala Venkatanandam, upon the observations of the learned Chief Justice of the Rangoon High Court in C.K Ummar v. C.K Ali Ummar, and lastly upon a ruling of this Court in Chunni Lal v. Sheo Charan Lal, Lalman. The division Bench referred the case for decision to a larger Bench as it was not clear how the defendants could put an arbitrary valuation on a memorandum of appeal against a final decree when they claimed an ascertained sum of money, and also in view of certain observations of Bennet, J., in Sharfuddin v. Khadim Ali Khan.

Section 7 of the Court Fees Act, 1870, is as follows:

“7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:

(iv) In suits—

(f) for accounts—

according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.

In all such suits the plaintiff shall state the amount at which he values the relief sought.”

In consequence of the Local Act XIX of 1938, clause (iv) of section 7 reads thus:

(iv) In suits—

(a) ***

(b) for accounts:

according to the amount at which the relief sought is valued in the plaint or memorandum of appeal:

Provided further, that in suits falling under clause (b), such amount shall be the approximate sum due to the plaintiff and the said sum shall form the basis for calculating (or determining) the valuation of an appeal from a preliminary decree passed in the suit.”

The learned counsel for the appellants has argued that the proviso has no bearing on the facts of the present case and the appellants were at liberty to put their own valuation on the relief claimed in the appeal. On the other hand, the learned Standing Counsel has contended that the proviso is applicable because, in view of the definition of ‘suit’ in section 2 of the Local Act, the word ‘suits’ mentioned in the proviso must be deemed to include appeals; and, in any case, the appellants were not entitled to put an arbitrary value on the; relief claimed by them.

The first question for consideration, therefore, is whether the proviso applies to the present case. In section 2 of the Local Acts no doubt ‘suit’ has been defined to include “a first or second appeal from a decree in a suit and also a Letters Patent Appeal”; but we find that in the proviso both the words ‘suits’ and “appeal” have been used.

The proviso consists of a single sentence and it has to be read and interpreted as a whole. If we take the proviso as a whole it is evident that the word ‘suits’ has been used therein meaning suits only. If it had been used so as to include suits as well as appeals the first part of the proviso would read like this.

“Provided further, that in suits falling under clause (b) such amount shall mean the approximate sum due to the plaintiff”;

“Provided further that in appeals falling under clause (b) such amount shall be the approximate sum clue to the appellant.”

And, in that case the second part, viz.

“the said sum shall form the basis for calculating (or determining) the valuation of an appeal from a preliminary decree passed in the suit”

which has been joined with the first part with ‘and” would become superfluous.

The plain meaning of the proviso seems to be that in suits falling under clause (b) such amount (the amount, at which the relief sought is valued in the plaint) shall be the approximate sum due to the plaintiff and in an appeal from a preliminary decree passed in the suit the said sum (the approximate sum due to the plaintiff) shall form the basis for calculating (or determining) the valuation of the appeal. In other words, in suits for accounts the court-fee payable shall be computed according to the amount at which the relief sought is valued in the plaint and the amount at which the relief sought is to be valued shall be the approximate sum due to the plaintiff; and in appeals from a preliminary decree passed in the suit the approximate sum due to the plaintiff shall form the basis for calculating or determining the valuation of the appeal. Obviously, therefore, the proviso does not apply to an appeal from a final decree passed in a suit for accounts. The appeal in the court below was against a final decree in such a suit. The proviso has, therefore, no bearing on the case before us.

The next point for consideration is whether the appeal being governed by the main provisions contained in sub-clause (b) of clause (iv) of section 7 of the Act, the appellants were at liberty to put their own valuation on the relief claimed in the appeal and pay court-fee thereon; in other words, could the appellants value the relief claimed arbitrarily irrespective of the nature of the relief claimed by them. The learned Standing Counsel has argued that the word ‘valued’ in the sub-clause refers only to the relief sought in the plaint and not to the relief sought in the memorandum of appeal. He attempted to read the sub-clause like this:

“according to the amount at which the relief sought is valued in the plaint”

“according to the amount at which the relief sought in the memorandum of appeal.”

He, however, could not complete the second part and realised that, even after doing violence to the language of the sub-clause, it could not be read in the manner suggested by him. Then he invited our attention to the following observations of Bennet, J., in Sharfuddin v. Khadim Ali Khan:

“The first thing to be noticed in regard to this sub-section (f) is that a distinction is drawn between a plaint and an appeal, it is provided in regard to the plaint that the plaintiff shall state the amount at which he values the relief sought. I understand by that the plaintiff is given power to value at whatever amount he considers correct the relief for which he asks in his plaint. There is not a corresponding provision that in all such appeals the appellant shall state the amount at which he values the relief sought, and I consider that this omission is not unintentional. For an appeal the appellant is not given a free hand to value at whatever figure he likes the relief in his memorandum of appeal. It is laid down that the court-fee is to be paid on the relief sought in the memorandum of appeal but it is not provided that the appellant may value that relief at whatever figure he desires. In the case of a plaintiff who is an appellant and whose relief has not been allowed by the court below the plaintiff no doubt may in his memorandum of appeal repeat the figure for valuation which he has already stated in his plaint under the proviso in this sub-section. But in the case of an appellant who is a defendant there is not a similar provision.”

With due deference to the learned Judge, I find it difficult to accept the narrow construction placed by him upon the wordings of the sub-clause. The sub-clause clearly lays down that the court-fee payable in the suits for accounts—and here the word ‘suits’ has been used to include appeals—shall be computed according to the amount at which the relief sought is valued in the plaint or the memorandum of appeal. In the suit and the appeal the plaintiff and the appellant are respectively given the right to put their own valuation on the relief sought. No distinction is made between an appeal filed by a plaintiff and an appeal filed by the defendant; and I see no reason why any such distinction should be drawn. In suits for accounts the amount due to one party from the other is to be determined. An appeal from a decree is provided irrespective of the fact whether the decree is passed in favour of the plaintiff or the defendant. Whether the appeal is filed by the plaintiff or the defendant the basis of calculation will be challenged in the appeal; and the amount actually due to either party will have to be determined.

In Faizullah Khan v. Maula-dad Khan the case between the parties had reference to the rendering of accounts and the settlement of the sums due thereon in connection with a partnership which had been dissolved. The plaintiffs, Faizullah Khan and Sherdad Khan, valued their suit at Rs. 3,000 for the purpose of court-fees, and asked for a rendering of accounts and a decree for Rs. 3,000 with the statement “if more than Rs. 3,000 be found due to the plaintiffs they will pay an additional court-fee.” In his pleas Mauladad Khan, the first defendant, asked for a decree in his own favour for Rs. 29,000 and ask for the dismissal of the plaintiffs' suit. Under the final decree passed in the suit Rs. 19,991 were declared to be due to Mauladad Khan and nothing was found due to the plaintiffs. Both the parties appealed against the final decree. The plaintiffs challenged the decree against them for over Rs. 19,000 and maintained that sum in whole or part should be disallowed and that their own claim of Rs. 3,000 or less or more should be granted in their favour. They valued the appeal for the purpose of court-fee at Rs. 19,991 and paid a court-fee of Rs. 975. Their Lordships of the Privy Council held that the appeal had been properly valued and the court-fee paid was sufficient; and we find the following observations at page 741 of the report:’

“Their Lordships find no reason for treating that payment either as upon an undervalue or a split value. Their Lordships think, with much respect to the Judicial Commissioner, that it was a mistake to treat the payment of Rs. 975 as a fee made only on the amount of the decree passed against the appellants. That amount, as already stated, may be not only in full but largely in excess of the true sum of relief at which a sound valuation could in the present circumstances be said to reach and it covered the appeal as a whole, including that sum on the one hand and a much smaller figure of Rs. 3,000 on the other.

Their Lordships are clearly of opinion that the memorandum of appeal in the present case did state in terms of the Act the amount at which the relief was sought. This determines the appeal. A reference may be added to the results which would have followed from the course adopted below.”

In the case before their Lordships of the Privy Council the plaintiffs were appealing against a final decree under which their own claim had been negatived and a definite sum of money had been found due from them to the defendant Still the valuation put on the memorandum of appeal was held to include the ascertained sum disputed by the plaintiffs and the unascertained sum claimed by them. In other words, the valuation put on the memorandum of appeal was accepted as the valuation of the entire relief claimed by them. It follows, therefore, that under section 7(IV)(b) the appellant can put his own valuation on the memorandum of appeal from a decree passed in a suit for accounts.

In the Madras case reported In re. Nuhala Venkaianandam, the decision in Faizullah Khan's case was held to be applicable to a case of an appellant whether he was plaintiff or defendant. It has been pointed out by the learned Standing Counsel that there are no observations in the judgment of the Privy Council which would justify the view taken by the Madras High Court, and that it was overruled in a subsequent Full Bench decision of the same Court reported In re. Dhanukodi Nayakkar.

The learned Chief Justice of the Madras High Court, who delivered the judgment in the Full Bench case, referred to above, with reference to section 7(IV)(f), observed:

“The section gives great freedom to plaintiff-appellants, but we do not consider that it gives the same freedom to defendant-appellants. When a defendant-appellant appeals against a final decree he knows exactly the value of his relief.”

If I may say so with respect, even defendant-appellant in some cases might not know the exact value of his relief. In the case before us the plaintiffs' claim was dismissed in its entirety and the defendants' claim that, on accounts being taken, a certain sum of money would be found due to him was also not substantiated. The commissioner had no doubt, reported that a sum of Rs. 12,224-5-19, was due to the defendants; but the trial court did not accept the report. The item of Rs. 12,224-5-9 must have been made up of several items. The defendants might succeed in satisfying the appellate court that some of those items were due to them and they might not succeed as far as other items are concerned. The position, therefore, remains that the amount which might be found due to the defendants is uncertain. The defendants in the appeal filed by them really want a fresh scrutiny of the accounts. It was in similar circumstances that their Lordships of the Privy Council in Faizullah Khan's case held the value put by the appellants sufficient to cover the entire claim which included the ascertained as well as unascertained sum of money. Consequently, there appears to be no reason to think that section 7(IV)(f) gives certain freedom to the plaintiff-appellant, while it does not give similar freedom to the defendant-appellant.

While interpreting the decision in Faizullah Khan's case in Sharfuddin v. Khadim Ali Khan Bennet, J., observed:

“The language used by their Lordships appears to me to be directed to the question of whether a plaintiff can be allowed to value his claim which has been disallowed at whatever figure he pleases. As I have already pointed out, in my view section 7(IV)(f) does allow a plaintiff to do so either in his plaint or in his memorandum of appeal when the relief which he claimed has been disallowed. It had been disallowed in the case before their Lordships and they held that the language of section 7(IV)(f) did allow the plaintiff to value his relief as he pleased….

The ruling of their Lordships proceeded further to point out that under section 149, Civil Procedure Code, the amount which the plaintiff should have paid, if any, should have been recovered as laid down in that section. … Under these circumstances I do not consider that the ruling of their Lordships can be changed to apply to the entirely different set of facts….”

Section 149 of the Code of Civil Procedure lays down:

“Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force, and effect as if such fee had been paid in the first instance.”

The section does not draw any distinction between a plaintiff on a defendant who files the document in question. It allows the person by whom any fee prescribed for any document is payable to pay the whole or part, as the case may be, of such court-fee. The language used by their Lordships of the Privy Council also does not draw any distinction between the memorandum of appeal filed by a plaintiff or by a defendant. The amount of the value of the relief sought put by the appellant in terms of section 7(IV)(f) of the Court Fees Act was held by their Lordships to be sufficient. In my opinion, therefore, the. Privy Council decision was not correctly interpreted in Sharfuddin's case.

In Chunni Lal v. Sheo Charan Lal, Lalman, in a suit for dissolution of partnership and accounts the appeal was filed by the defendants, and it was held that it was not necessary for the defendants to accept the valuation adopted in the plaint and they were at liberty to value the appeal for the purpose of paying court-fee at whatever amount they considered to be approximately correct. The appeal by the defendants was held to be covered by section 7(IV)(f), and it was pointed out that the amount of fee payable was to be computed “according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.” Taking the words literally, the defendants had put their own valuation on the relief which they sought in the memorandum of appeal. In delivering judgment Sulaiman, J., (as he then was) observed at page 762:

“It is sufficient to say that the defendant cannot be called upon to pay court-fees on the amount of valuation given by the plaintiff when the language of the section does not clearly so demand. The Statute must be construed in favour of the defendant who has to pay the court-fees. If the legislature considers that the language is defective, it is for the legislature and not the court to cure the defect. The words must be interpreted as they stand.

It follows that in cases where the valuation has of necessity to be arbitrary and tentative, the person who has to present a petition of plaint or appeal and who is called upon to pay the necessary court-fees will have to fix the valuation, and unless the court is of opinion that the valuation has been put down fraudulently, it will be difficult not to accept the valuation so made.”

It is clear, therefore, that the language of section 7(IV)(f) which is the same as of section 7(IV)(b), does not require the defendants who file an appeal, to value the relief sought at an amount said to be due on accounts and claimed by them. If a plaintiff or appellant can fix the valuation arbitrarily, there is no question of its having been put down fraudulently. In order to prevent a plaintiff or appellant from acting in an arbitrary manner in the proviso to sub-clause (b) it has now been provided that the amount at which the relief sought is valued should be the approximate sum due to the plaintiff; but, as already pointed out, that proviso only refers to an appeal from a preliminary decree in the suit for accounts.

I, therefore, see no reason to limit the applicability of the provisions of section 7(IV)(b) or of the decision of their Lordships of the Privy Council in Faizullah Khan's case to an appeal filed by a plaintiff. Consequently, the defendants-appellants were entitled to value the relief sought in the memorandum of appeal at Rs. 130 and to pay court-fee thereon. In this view of the case the memorandum of appeal filed by the defendants in the court of the District Judge was duly stamped and the order calling upon them to make good the deficiency in court-fee cannot be upheld.

I would, therefore, allow this appeal with costs, set aside the order, dated the 22nd August, 1944, passed by the learned District Judge and direct that the appeal filed by the defendants in the court of the District Judge, on the 28th September, 1943, be disposed of according to law.

Seth, J.:— The relevant facts have been set out in detail in the judgment of my learned brother, Bhargava, J., and also in the referring order. Only a very brief resume will, therefore, suffice for this judgment.

There was a suit for accounts of a dissolved partnership. The Commissioner appointed under the preliminary decree examined the accounts and reported to the court that nothing was found due to the plaintiff from the defendants but that, on the contrary, a sum of Rs. 12,224-5-9 was found payable by the plaintiffs to the defendants. As could be expected, this report was objected to by the plaintiffs and the court, after hearing both the parties, recorded a finding to the effect that nothing was due from either party to the oilier. Accordingly, a final decree, dismissing the suit, was passed. The plaintiffs submitted to the decree but the defendants appealed against it to the court of the District Judge of Saharanpur, praying for the following relief:

“It is prayed that the judgment and decree be set aside and a correct decree in view of the report of the Commissioner be passed.”

The defendants-appellants valued the appeal at the same amount at which the plaintiffs had valued their suit, namely Rs. 130, and paid court-fee accordingly. The learned District Judge held that under section 7(IV)(b) of the Court Fees Act, which applied to the case, an appeal against the final decree in a suit for accounts was required to be valued according to the relief sought and therefore at the amount, which the appellants claimed from the appellate court. He therefore, called upon the defendant-appellants to pay ad valorem court-fee calculated on a valuation of Rs. 12,224-5-9.

This appeal, by the defendants, is directed against the aforesaid order of the learned District Judge and has been filed under section 6-A, Court Fees Act, as amended by the U.P Government. It came up for hearing before a Bench of two Judges where it was contended, on behalf of the appellants, that the question to be decided by the Bench was concluded in their favour by a decision of the Judicial Committee of the Privy Council in Faizullah Khan v. Maula-dad Khan and that, according to the said decision of the Judicial Committee, the appellants were at liberty to value the relief claimed in the appeal arbitrarily at any amount and to pay court-fee according to such valuation. Three other decisions, namely In re. Nukala Venkatanandam, C.K Ummar v. C.K Ali Ummar Chunni Lal v. Sheo Charan Lal, Lalman were cited in support of the same view. The Bench, being of the opinion that the judgment of their Lordships of the Judicial Committee and certain other considerations, to be borne in mind when considering the applicability of that judgment to the facts and circumstances of the present case, were matter of considerable importance, not free from difficulty, recommended that the appeal be referred for decision to a larger Bench. This is how the case has come up for decision before this Full Bench.

The Court Fees Act, VII of 1870 (hereinafter referred to as “the Imperial Act”) is an Act of the Central Legislature applicable to the whole of India. In its application to these provinces it has been amended by the Local Act (XIX of 1938), entitled to U.P Court Fees (Amendment) Act, and the Imperial Act so amended shall hereinafter be referred to as “the Local Act.” section 7(IV)(f) of the Imperial Act, which relates to suits for accounts and appeals arising out of such suits, after amendments by the Local Act (XIX of 1938), has become section 7(IV)(b) of the Local Act. This sub-section of section 7 of the Local Act consists of two parts, the second part being a proviso to the first. It will be convenient to refer, hereinafter, to the first part as “the sub-section” and to the second part as “the proviso.”

The contention of the learned counsel for the appellants is that the proviso does not apply to appeals against final decrees and that the sub-section does not impose any obligation upon an appellant in such an appeal to value the relief sought for in the appeal at any particular, amount. The contention of the learned Standing Counsel, appearing for the Chief Inspector of Stamps, is that the proviso applies to such appeals and that, even if the proviso does not apply, the sub-section does not permit an arbitrary valuation to be placed upon the relief sought. It seems desirable to consider the application of the proviso before dealing with the sub-section itself, for, if it be held that the proviso applies, it will not be necessary to consider how the sub-section should be interpreted and the proviso itself will suffice for the disposal of this appeal. section 7(IV)(b) of the Local Act runs as follows:

“7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:

(iv) In suits—

(b) for accounts;

according to the amount at which the relief sought is valued in the plaint or memorandum of appeal:

Provided further, that in suits falling under clause (b), such amount shall be the approximate sum due to the plaintiff and the said sum shall form the basis for calculating (or determining) the valuation of an appeal from a preliminary decree passed in the suit.”

A mere perusal of the proviso will show that it specifically mentions suits and appeals from preliminary decrees but does not make any mention of appeals from final decrees and so does not prima facie apply to appeals from final decrees. The learned Standing Counsel has urged that it should be read along with section 2(IV) of the Local Act where “suit” has been defined to include an appeal and that, wherever the word “suit” occurs in section 7(IV)(b), the word “appeal” should be read for it and the word “appellant” should be read for the word “plaintiff” wherever it occurs in this section. The relevant portion of section 2 of the Local Act runs thus:

“2. In this Act unless there is anything repugnant in the subject or context—

(iv) ‘suit’ includes a first or second appeal from a decree in a suit and also a Letters Patent Appeal.”

On a careful consideration of the matter, I have come to the conclusion that to read in the proviso the word “suit” so as to include an appeal would be repugnant to its subject matter. I have reached this conclusion for the following reasons:

(1) If the word “suit” has to be read so as to include an “appeal”, it necessarily follows that the word “plaintiff” should be read to include an “appellant”, otherwise the proviso will become meaningless. The Legislature has not defined the word “plaintiff” to include an appellant or in any other manner. To do so would be to add one more definition to the Act and this will not be a mere interpretation but will amount to legislation. I have not been able to discover any rule of interpretation which would justify me in interpreting the word “plaintiff” to include an appellant, simply because the Legislature has defined “suit” to include an appeal also.

(2) If it was intended that the word “suit” occurring in the proviso should be interpreted in the manner defined in section 2(IV), there was no necessity to make a specific provision for appeals from preliminary decrees. I find it impossible to interpret the word “suit” to include appeals from final decrees only and not appeals from preliminary decrees for appeals from final decrees having been specifically provided for the word “suit” can not be read to include them also. To do so would be to give that word a meaning which is assigned to it neither by the definition nor by its ordinary connotation.

(3) Even if I were to accept the contention of the learned Standing Counsel that “suit” should be interpreted to include an appeal and “plaintiff” should be interpreted to include an appellant, the only way to give effect to this contention would be to substitute the word “appeal” for the word “suit” and the word “appellant” for the word “plaintiff” wherever they occur in the proviso and then to find out what the proviso means when it is read with the substituted words. In such an event the proviso would read as follows:

“Provided, further, that in appeals falling under clause (b), such amount shall be the approximate sum due to the appellant and the said sum shall form the basis for calculating (or determining) the valuation of an appeal from a preliminary decree passed in the appeal.”

It would appear at a glance that the outcome of the desired substitutions will lead to absurd results. According to this reading of the proviso, the amount at which the relief in a memorandum of appeal from a final decree will be required to be valued will be “the approximate sum due to the appellant”. There are numerous appeals against final decrees in which the appellant is the defendant and he does not claim any amount as due to him but only challenges the amount found due to the plaintiff. How are such appeals to be valued, when in all such cases there will be no sum due to the appellant?

I am, therefore, of opinion that the proviso does not apply to appeals from final decrees.

The sub-section itself may now be considered. It has already been reproduced above. There is no dispute on the point that court-fee is payable according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. The learned counsel for the appellants contends that the sub-section does not require the relief to be valued in any particular manner and that therefore an appellant may value it arbitrarily. The learned Standing Counsel disputes this proposition and contends that an appellant is required to value the relief at a particular amount, namely, the amount by which he desires the decree appealed against to be varied. It appears to me that there is considerable force in the contention of the learned counsel for the appellants.

In the first place, the sub-clause does not expressly provide that the relief sought in the plaint or memorandum of appeal should be valued in any particular manner. It does not place any obligation upon a plaintiff or an appellant by express words to value the relief sought in the manner suggested by the learned Standing Counsel.

In the second place, the language of the sub-section “at which the relief sought in the plaint or memcrandum of appeal is valued” indicates that the Legislature was concerning itself only with the valuation to be found in the plaint or the memorandum of appeal and not with the manner in which the relief sought was to be valued. The language of Article I of the First Schedule of the Court Fees Act may usefully be compared with the language of the sub-section in this connection. According to that Article, court-fee has to be computed according to the amount or value of the subject matter in dispute. If it was intended that court-fee in an appeal from a final decree in a suit for accounts should be computed in accordance with the value of the subject matter in dispute, there seems to be no reason why the Legislature should not have employed the same language in the sub-section also and why it should have contented itself by a mere reference to the fact at which the relief is valued. It may be noted that the contention, of the learned Standing Counsel in substance amounts to this that the memorandum of appeal from a final decree in a suit for accounts should be valued according to the subject matter in dispute which in every appeal of this description would be that amount by which the decree appealed against is sought to be varied. The very fact that the Legislature has made a specific provision for such appeals in the sub-section and has not left them without a specific provision so as to allow them to come under Article I of the First Schedule is a clear indication of the intention of the Legislature that the court-fee payable in respect of them is to be computed on a principle different from the one recognised in Article I of the First Schedule.

In the third place, a reference to the proviso shows that the Legislature was alive to the fact that the sub-section standing by itself gave an unfettered discretion to a plaintiff or an appellant to value the relief sought for arbitrarily and accordingly made specific provisions for those cases where it was intended that the relief sought for may not be arbitrarily valued. It, thus, provided for the valuation of reliefs sought for in a plaint or a memorandum of appeal from a preliminary decree. The well recognised rule of interpretation expressed in the maxim Inclusio unius est exclusio alterius fully applies to the case under consideration. If it was intended to legislate by the sub-section itself that the amount at which court-fee was to be calculated could not be fixed by a plaintiff or an appellant according to his own choice, there was no need to enact the proviso. To accept the contention of the learned Standing Counsel would be to render the proviso superfluous. An intention to enact something superfluous may not be imputed to the Legislature. If the argument be that the proviso was enacted to provide that the relief sought for in a plaint in a suit for accounts or in a memorandum of appeal against a preliminary decree in such a suit should be valued in a particular manner, the answer is that if the Legislature intended that the relief sought in a memorandum of appeal from a final decree in such a suit should be valued in another particular manner that is, in accordance with the amount by which it was sought to be varied, it would have said so. I am, therefore, of the opinion that on a proper interpretation section 7(IV)(b) of the Local Act permits an appellant in an appeal from a final decree in a suit for accounts to put his own valuation upon the relief sought for in the appeal and to pay court-fee accordingly.

I have so far considered the question, without reference to any authority cited at the Bar, as if it were res integra. In a sense, the point for decision in this case is res integra inasmuch as no authority has been cited which has interpreted section 7(IV)(b) of the Local Act. All the authorities cited relate to section 7(IV)(f) of the Imperial Act. No doubt the two provisions are in pari materia, but there are substantial-differences also. The language of the first part of section 7(IV)(b) of the Local Act is, identical with the language of the first part of section 7(IV)(f) of the Imperial Act. It has been contended by the learned counsel for the appellants that the first part of section 7(IV)(b) of the Local Act should therefore be interpreted in the same way in which section 7(IV)(f) of the Imperial Act has been interpreted by the Judicial Committee of the Privy Council in Faizullan Khan v. Maula-dad Khan, and that if it be to interpreted there is no answer to his contention. The facts of that case were that a suit was brought by Faizullah Khan and another against Mauladad Khan and others for rendition of account wherein it was prayed that a decree for Rs. 3,000 or such other amount as may be found due be passed in favour of the plaintiffs. The trial court declared that Rs. 19,991 were due to defendant Mauladad Khan from the plaintiffs and that nothing was due to the plaintiffs from the defendants. The plaintiffs appealed against the decree praying for a reversal of the decree granted against them and for granting a decree in their favour for such amount as may be found due. They valued their appeal at Rs. 19,991, the amount which was declared to be due to Mauladad Khan, and paid court-fee on that amount. The Judicial Commissioner of the North West Frontier Province held that the court-fee was payable at a sum of Rs. 19,991 plus Rs. 3,000. This decision was set aside by the Judicial Committee, and their Lordships' decision was tersely put in the following language:

“Their Lordships are clearly of opinion that the memorandum of appeal in the present case did state in terms of the Act the amount at which the relief was sought. This determines, the appeal.”

The plaintiff-appellants in that case sought to have the decree passed in favour of the defendant to be set aside and a decree to be passed in their favour. If they were required to value the appeal according to the subject matter in dispute or according to the amount by which they sought the decree of the court below to be varied, it is obvious that they were required to value their appeal at Rs. 22,991 and to pay court-fee accordingly. Their Lordships, however, decided that the valuation given by the plaintiffs-appellants was not improper. In their Lordships' opinion, the terms of the Act were satisfied merely by a mention of the amount at which the relief sought was valued. I understand that what their Lordships meant was that if an appellant values the relief sought in the memorandum of appeal and pays a fee thereon, then, in the terms of the section, that is the fee properly payable. The language employed by their Lordships, as stated above, is extremely terse. There is, therefore, no unanimity of judicial opinion on the point as to what was actually decided in this case. The decision of the Judicial Committee has been interpreted in the same way in which I have interpreted it by a Bench of the Madras High Court in In re. Nukala Venkatanandam wherein it has been observed:

“According to the view of the Privy Council the appellant, whether plaintiff or defendant, can give some valuation and one cannot complain that the amount in the memorandum is not the proper amount.”

It has been similarly interpreted by a Full Bench of the Rangoon High Court in C.K Ummar v. C.K Ali Ummar wherein it was observed:

“In my opinion Faizullah Khan's case is conclusive upon the question that has been referred. In that case the estimated value of the relief sought out in the plaint differed from the value in the memorandum of appeal filed by the plaintiff but their Lordships held ‘that the memorandum of appeal did state in terms of the Act, the amount at which the relief was sought.’ This determines the appeal.”

section 7(IV)(f) was interpreted in the same manner by this Court in Chunni Lal v. Sheo Charan Lal Lalman where at was held that in an appeal from a preliminary decree in a suit for accounts the appellant is entitled to fix his own value for the relief claimed and is not bound by the valuation put by the plaintiffs on the suit. It is true that this case related to an appeal from a preliminary decree, but section 7(IV)(f) of the Imperial Act does not recognize any distinction between an appeal from a preliminary decree and an appeal from a final decree.

The learned Standing Counsel has, relied upon three cases in which the decision in Faizullah Khan's case has been differently interpreted and in which it has been held that an appellant in an appeal from a final decree in a suit for accounts is not permitted to put an arbitrary valuation on the relief sought in the memorandum of appeal. One of these cases is a decision of a single Judge of this Court in Sharjuddin v. Khadim Ali Khan. This was an appeal to this Court by a defendant against a final decree for a definite sum passed against him in a suit for dissolution of partnership and accounts. The learned Judge held that the appeal should be valued at the amount decreed by the court below and ad valorem, court-fee should be paid thereon. He further held that it was not open to the appellant to value his appeal arbitrarily for an amount less than the amount decreed against him. The view of the learned Judge, who decided Sharfuddin's case, appears to be that, whereas section 7(IV)(f) allows a plaintiff to value his claim at whatever figure he pleases either in his plaint or in his memorandum of appeal, it does not allow a defendant-appellant to do so. The learned Judge has distinguished the decision of the Judicial Committee in Faizullah Khan's case as follows:

“I do not see on what principle it can be argued that the ruling is any authority for the claim made in the present case. The language used by their Lordships appears to me to be directed to the question of whether a plaintiff can be allowed to value has claim which has been disallowed at whatever figure he pleases. As I have already pointed out, in my view section 7(IV)(f) does allow a plaintiff to do so either in his plaint or in His memorandum of appeal when the relief which he claimed, has been disallowed. It had been disallowed in the case before their Lordships and they held that the language of section 7(IV)(f) did allow a plaintiff to value his relief as he pleased.”

I find myself unable to concur with the view of the learned Judge either about the interpretation of section 7(1V)(f) or about the interpretation of the decision of their Lordships of the Judicial Committee. It is true that section 7(IV)(f) of the Imperial Act provides that in all suits coming under that Article the plaintiff shall state the amount at which he values the relief sought and may for this reason be said to accord a special privilege to the plaintiff so far as the suit is concerned, but so far as appeals are concerned the section makes no distinction between a plaintiff-appellant and a defendant-appellant and I have failed to discover any reason making any distinction between a plaintiff-appellant and a defendant-appellant as the learned Judge has made in Sharfuddin's case. I fail to see why a plaintiff-appellant should be allowed to put his own arbitrary valuation on a memorandum of appeal from a final decree and why a defendant-appellant should be treated differently. There seems to be no foundation for the suggestion made by the learned Judge that the Privy Council decision makes a distinction between the case of a plaintiff-appellant and the case of a defendant-appellant. The case that went up before the Privy Council was no doubt a case in which the valuation made and court-fee paid by the plaintiffs-appellants were in dispute, but the decision of their Lordships was not based upon any such consideration, and the rule laid down in that case is in general language which is wide enough to include the case of a plaintiff-appellant as well as the case of a defendant-appellant. I am, therefore, unable to follow this decision.

The second case relied upon by the learned Standing Counsel is decision of a Full Bench of the Madras High Court in Dhanukodi Nayakkar. It appears that the question of court-fee payable in such cases had been settled by a previous Full Bench decision of that Court in Srinivasacharlu v. A. Perindevamma and ever since then until the decision in In re. Nukala Venkatanandam, already referred to, court-fees were charged in accordance with the Full Bench decision in Srinivasacharlu v. A. Perindevamma. The principal question considered by the Full Bench in Dhanukodi Nayakkar was whether the practice laid down in Srinivasacharlu v. A. Perindevamma should continue to be followed in view of the decision of the Privy Council in Faizullah Khan's case. The Full Bench held that their Lordships of the Judicial Committee were not called upon to consider the case of a defendant-appellant and therefore the decision of the Full Bench in Srinivasacharlu v. A. Perindevamma was not affected and that for that reason the case of In re. Nukala Venkatanandam was not correctly decided and should be overruled. Interpreting the decision of the Judicial Commitee in Faizullah Khan's case Leach, C.J made the following observation:

“In the course of the arguments which are to be found reported in Faizullah Khan v. Mauladad Khan, it was pointed out by Lord Tomlin that the scheme of the Act was that the plaintiff should be allowed to value his own relief, and the decision proceeded on this basis. Their Lordships were not called upon to consider the case of defendant-appellant and consequently their decision cannot be taken, as a guide when deciding whether Srinivasacharlu v. A. Perindevamma or Chunni Lal v. Sheo Charan Lal, Lalman should be followed.”

It is unfortunate that the attention of the learned Chief Justice was not directed to the earlier portion of the observations of Lord Tomun wherein His Lordship is reported to have observed:

“In section 7 the amount of the fee is to be computed, in suits for accounts, according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. If therefore, the appellant values the relief in the memorandum of appeal and pays a fee thereon, that is the amount of fee properly payable.”

It would appear from the above quotation that His Lordship made no distinction between a plaintiff-appellant and a defendant-appellant and that His Lordship's observations included all appellants without any distinction such as has been made by the learned Chief Justice.

The third case relied on by the learned Standing Counsel, namely the decision of a single Judge of the Nagpur High Court in Sheokisandas Agarchand Daga Maheshri v. Daudas Ramgopal does not advance his case any further, because the Nagpur decision simply follows the decision of the Full Bench of the Madras High Court in Dhanukodi Nayakkor and does not give any independent reasons in support of the view.

A careful examination of all the cases relied upon by the learned Standing Counsel shows that they all attempt to distinguish the decision of the Judicial Committee in Faizullah Khan's case on the ground that it applies to the case of a plaintiff-appellant only and does not apply to the case of a defendant-appellant. I have already stated more than once that the observations made in Faizullah Khan's case are quite general and make no such distinction. I am, therefore, of opinion that Faizullah Khan's case fully supports interpretation put on section 7(IV)(f) of the Imperial Act by the learned counsel for the appellants.

The interpretation to be placed upon section 7(IV)(f) of the Imperial Act is, however, by no means, conclusive of the interpretation to be placed upon section 7(IV)(b) of the Local Act. While the first part of section 7(IV)(b) of the Local Act is identical with the first part of section 7(IV)(f) of the Imperial Act the second part of section 7(IV)(f) of the Imperial Act has been replaced by the proviso in the Local Act. The proviso materially differs from the second part of section 7(IV)(f) of the Imperial Act. Therefore, while the first part of section 7(IV)(f) of the Imperial Act has to be construed with reference to its second part, the proviso has a material bearing over the construction of the first part of section 7(IV)(b) of the Local Act. I have already discussed in an earlier part of the judgment the bearing of the proviso on the construction of the sub-section and have set out my reasons in favour of the view that the proviso indicates that a defendant-appellant against a final decree is at liberty to value the relief sought for in the memorandum of appeal at such figure as he chooses. All that I can usefully add now is that the amendment was made after the decisions in Faizidlah Klian's case and in the other case already referred to had been pronounced. The Legislature may be assumed to be familiar with the interpretations placed upon section 7(IV)(f) of the Imperial Act at the time when it was enacting section 7(IV)(b) of the Local Act and reading section 7(IV)(b) in this context it appears to me that the section, as enacted, discloses an intention on the part of the Legislature to accept the interpretation put upon section 7(IV)(b) according to which every appellant in an appeal against a final decree was at liberty to put his own valuation on the memorandum of appeal.

I, therefore, agree with my brother Bhargava, J., in holding that the court-fee paid by the appellants on the memorandum of appeal in the lower appellate court was sufficient and that this appeal should be allowed and the order of the lower appellate court demanding further court-fee should be set aside.

Malik, C.J:— I have read the judgments of my learned brothers Seth and Bhargava and have nothing to add.

By the Court:— The appeal is allowed. The order of the lower appellate court demanding further court-fee is set aside. The lower appellate court may now proceed to decide the appeal in accordance with law. The appellants are entitled to their costs from the United Provinces Government.

Appeal allowed.