Dina Nath v. Munshi Ram, Etc.

Kapur, J.:— This is an appeal against a judgment and decree of Mr. Pitam Singh Jain, Subordinate Judge 1st Class, Tarn Taran, dated the 2nd of May 1950 decreeing the plaintiffs' sub to the extent of 131/216th share on the plaintiff's paying a sum of Rs. 5,535/5/8 to defendant No. 1.

2. The facts of the case are that on the death of one Hazara Singh, his mother Mst. Chandi succeeded to the estate. She sold the land in dispute to defendant No. 1 and defendants Nos. 2 to 20 filed a suit for declaration challenging this sale and a declaratory decree was obtained against defendant No. 1 on the 10th April, 1941 to the effect that the sale shall not bind the reversionary rights of the plaintiffs after the death of Mst. Chandi. This decree was affirmed right up to the High Court. When Mst. Chandi died defendants Nos. 2 to 4 and 6 to 20 sold the land in suit measuring 5 kanala 14 marlas out of khasra No. 469 to the plaintiffs for Rs. 18,000 on the 13th March, 1915. The plaintiffs brought this suit for possession of the land measuring 5 kanals 14 marlas with a prayer that the defendant should remove the material on it. The suit was decreed to the extent of 131/216th share on the payment of Rs. 5,535/6/8. Against this decree Dina Nath plaintiff went up in appeal to the Senior Subordinate Judge and an objection was taken that the appeal lay to the High Court and not to the Senior Subordinate Judge's Court. Appellant's counsel however conceded in the Court of the Senior Sub Judge that the appeal was beyond the power of the Senior Subordinate Judge's Court and the memorandum of appeal was returned to be filed in a Court of proper jurisdiction. This was on the 27th June, 1951. The appeal was tiled in that Court on the 10th July, 1950.

3. On the 7th July, 1951 the memorandum of appeal was presented to this Court. The appeal was admitted by my learned brother Harnam Singh J. on the 1st August, 1951 and he ordered that before the printing was done the case should be put before a Bench to decide the question of limitation.

4. Mr. Shambu Lal Puri for the appellant subuits that there was a bona fide mistake on the part of the Advocate for the plaintiff in filing the appeal in the Court of the Sunior Subordinate Judge. The jurisdictional value as put on the memorandum of appeal was Rs. 28/2/- and his prayer was for getting the whole of the land in suit without the payment of any money and by removal of the superstructures. This appeal be submits lay to the Senior Subordinate Judge, but I am unable to agree with this submission. In the present case the decree was a conditional one, the condition being the payment of Rs. 6,535/5/8 and the appellant wanted to get rid of this condition. Ha had therefore to value the appeal according to this sum because the court-fee was payable on this amount. This has been stated in Chitaley's book on the Court-fee Act at page 431 under Schedule I, Article 1, Note 7. In support of the statement of the law there is the judgment of the Midras High Court in Abdul Kudus v. Abdul Gani . A.I.R 1940 Mad. 955., where it was held that the appellant who seeks only to get rid of an order for payment of a ??? of money should value his appeal at the amount of that sum of money. In a Lahore case Tilckan Ram v. Bosa Ram . A.I.R 1922 Lah. 440., a Division Bench of the Lahore sigh Court held that it is quite immaterial in what form the suit was originally brought, provided the decree against which the appeal is prfsentedattaches a definite condition as to the payment of a specified sum and if the decree is in such a form, the relief sought being the removal of this condition precedent, court-fee must be paid on the amount so fixed. In this case the extension of time was refused to be granted even though the mistake was due to the mistake of ??? of the status of Dr. Nand Lal and reliance was there placed on a judgment of the same Court in Lekh Bam v. Bamji Das . I.L.R 1 Lah. 234., where the Court refused to extend the time even though the opinion bad been given by a gentleman of the status of Dr. Gokal Chard. The Patna High Court in Kishun Dutt Mrsir v. Kasi Pandey . A.I.R 1920 Pat 222., was of the same opinion where a decree for possession was given on payment of a sum of money and in appeal the amount of money to be paid was attacked. In an earlier Madras case. In Re. Seethayamma5, which was a suit by a Hindu to recover his share of the family lands alienated by his father and the decree had been made conditional on his payment of a portion of the consideration to the alienated, it was held though obiter that if the dispute in the appeal is confined to the amount payable by the plaintiffs such amount will determine the value of appeal.

5. section 8 of the Suits Valuation Act provides—

“8. Where in suits other than those referred to in the Court-fees Act, 1870, section 7, paragraphs (v), (vi) and (ix), and paragraph (x), clause (d) court-fees are payable ad valorem under the Court fees Act, 1870, the value as determinable for the computation of court-fees and the value for the purposes of jurisdiction shall be the same.”

6. Under this section it has been held that the value for court-foes and that for jurisdiction are to be the same, and the proper interpretation of the section is that the value of the suit for court-fees is to be applied for jurisdiction and not vice versa. This was held in Bura Mal v. Tulsi Ram . I.L.R 9 Lah. 366., at page 368, Birja Char an Nanda v. Sailaja Charan Nanda . I.L.R 1938 2 Cal. 411., where it was said that the proper method of valuation is to value a suit for the purpose of court-fee first and to take that value for the propose of jurisdiction, so also. In re Kalipada Mukherji8, where it was decided that the meaning of section 8 of the Suits Valuation Act is that the value for purposes of jurisdiction shall follow the value to be given for purposes of court-fee and not vice versa. The same rule was laid down in Maung Vyi Maung v. The Mandalay Municipal Committee . I.L.R 12 Rang. 335.. All these authorities show that in a conditional decree such as the one which was in this case the court-fee payable would be the amount of the condition which the plaintiffs sought to get removed, i.e a sum of Rs. 5,535/5/8 and therefore the jurisdictional value would follow that amount. The appeal would lie to this Court. No question of bona fide mistake arises nor does it show any good faith because it the legal advisers of the appellant had only taken the trouble of looking up any elementary book on Court fees and Suits Valuation Act, they would have discovered this. Good faith has been defined in the law of limitation in section 2(7) as follows:—

“(7) “good faith”: nothing shall be deemed to be done in good faith which is not done with due care and attention:”

7. In my opinion no good faith has been shown and there is no reason for the extention of time under section 5 of the Limitation Act. I would therefore dismiss this appeal but as there is no appearance for the respondents there will be no order as to costs in this Court.

8. Falshaw, J.:— I agree.

9. Appeal dismissed.