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1982 DIGILAW 150 (KER)

DAMODARAN UNNI v. STATE OF KERALA

1982-06-21

G.BALAGANGADHARAN NAIR, V.KHALID

body1982
Judgment :- 1. The order covers only the maintainability of the Appeal in this Court, as objection that was raised by the learned Government Pleader in the course of the hearing. The plaintiff who is the appellant purchased a power tiller under hire purchase on a loan of Rs. 9,822.47 granted by the State Government to be repaid in ten half yearly instalments. To secure the loan the plaintiff executed a simple mortgage. The instalments fell into arrears and when coercive steps were started for realising the money the plaintiff brought the suit (A) to declare as void the hire purchase agreement being vitiated by mistake of fact or alternatively to cancel it being vitiated by misrepresentation (B) to rescind the hire purchase agreement as the Government had committed breach thereof (C) to allow the plaintiff, as a consequence, to realise Rs. 5,038.77 as consideration that bad failed or as compensation with future interest (D) to declare as a consequence that the mortgage is extinguished (E) to restrain the Government by a permanent injunction from recovering the hire amount under the Revenue Recovery Act and (F) to grant other incidental and consequential reliefs. As for valuation, the plaintiff stated that A and B reliefs were valued at Rs 9,822.50 being the market value of the tiller and that the other reliefs being ancillary do not require separate court fees. He thus put the total valuation for all the reliefs at Rs. 9,822.50 and paid a court fee of Rs. 963 advalorem. Consistent with this valuation the suit was instituted in the Subordinate Judge's Court. After trial the suit was dismissed and the plaintiff has brought this appeal. In the memorandum of appeal he put the valuation at Rs. 9,822 as in the court below and paid a court fee of Rs. 963, though he added at the feet of the memorandum: "The subject matter of the suit is over Rs, 10,000", without indicating its basis. 2. In the memorandum of appeal he put the valuation at Rs. 9,822 as in the court below and paid a court fee of Rs. 963, though he added at the feet of the memorandum: "The subject matter of the suit is over Rs, 10,000", without indicating its basis. 2. Under S.13(1), Civil Courts Act "Appeals from the decrees and orders of a Munsiff's Court and where the amount or value of the subject matter of the suit does not exceed ten thousand rupees from the original decrees and orders of a Subordinate Judge's Court shall, when such appeal are allowed by law, lie to the District Court." Inorder to sustain the appeal in this Court, counsel for the appellant contended that irrespective of the valuation in the plaint, the "amount or value of the subject matter of the suit" exceeds Rs 10,000 and that the appeal is therefore competent. In aid of this contention he cited a number of decisions where the question of valuation of the subject matter for leave to the Privy Council, Federal Court and Supreme Court arose. We shall presently note these decisions but before doing so and considering their impact, we must point out that the plaint no where states that the amount or value of the subject matter is above Rs. 10,000 and all that the memorandum of appeal contains is the bald statement about the subject matter noticed above The subject matter of the suit was avoidance or cancellation of the hire purchase agreement of which the consideration was Rs. 9,822 which the plaintiff received as loan from the Government for purchasing the tiller. About this value there is no doubt or dispute. If on the other hand it is less than the real or market value, then on the authority of Kunju Kesavan v. M. M. Philip, AIR. 1964 SC. 164: "A plaintiff, who sets a lower value on a claim which he is required to value according to the real or market value, cannot be permitted to change it subsequently, because this would amount to approbation and reprobation." This means that the appellant is disentitled to overvalue the subject now. 3. Turning to the cases, the earliest of them Lagandoo Prasad v. Roid, AIR. 1919 Calcutta 118, was concerned with applications for leave to appeal to the Privy Council. 3. Turning to the cases, the earliest of them Lagandoo Prasad v. Roid, AIR. 1919 Calcutta 118, was concerned with applications for leave to appeal to the Privy Council. One of the conditions for the leave was that the subject matter of the suit in the court of first instance was Rs. 10,000 or upwards and the amount or value of the subject matter in dispute on appeal to the Privy Council was of the same value or upwards. So far as relevant, the value of the subject matter which was in dispute on appeal was whether the plaintiff was entitled to Rs. 5,000 as damages and also whether he was entitled to a declaration of certain rights as a riparian owner. When both the matters were taken into consideration, the value of the subject matter of the suit and of the appeal was upwards of Rs. 10,000. As the test was satisfied leave was granted. The decision is hardly of any assistance to the appellant. 4. Haramani Devi v. Balaram Panda, A.I.R. 1957 Orissa 109 and Brindaban v. Kalipada, A.I.R. 1966 Cal. 205 (F.B ), arose on applications for certificate to the Supreme Court under Art.133(1) (a) or S.110, C P.C. or both together, as they then stood. The suits were for specific performance and one of the questions was whether the value for the purpose of the certificate was the consideration fixed in the agreement of sale or the real or market value of the property. It was held the Orissa decision was one of the cases followed by the Calcutta High Court that while court fee need be paid only on the consideration the real or market value would govern the question of certificate. 5. Mitrabhanu v. Kamal, A.I R.1968 Orissa 60, also arose on an application for certificate to the Supreme Court under Art.133(1) (a) and (c) in a suit for declaration of title and possession over a property valued at Rs. 5.100. Although certificate was refused on the ground that the valuation fell below the mark, the court observed that what is meant by "value of the subject matter" as contemplated under Art.133(1) is the real or market value and not any value which may have been stated in the plaint for the requirements of the Court Fees Act or the Suits Valuation Act. This does not imply that the valuation in the plaint can in all cases be reprobated by the plaintiff. 6. Counsel also relied upon Molugu Lakshminarasimhacharyulu v. Marisetti Ratnam, A.I.R. 1949 Madras 739(F.B.), concerning applications for certificate to appeal to the Federal Court and Kuppanna v. Peruma, A.I. R.1961 Madras 511 (F.B), which was concerned with a like application for leave to appeal to the Supreme Court. These decisions held that such an applicant can show that the real value of the subject matter is higher than the value adopted in the plaint. Although the nature of the suits and the mode of valuation in the two decisions are not quite clear both of them related to immovable properties 7. The last of the cases cited was Sarju Singh v. Gurdwara. AIR 1963 Himachal Pradesh 9, a decision of the Judicial Commissioner's Court. Under the Himachal Pradesh (Courts) 0.1948 a second appeal was competent if the value of the suit was Rs. 1.000 or upwards or the decree of the District Court involved directly some claim to or question respecting property of like value. The order defined 'value' as meaning the amount or value of the subject matter of the suit. The plaintiff-appellant had valued the suit which was for a permanent injunction to restrain the respondents from interfering with bis possession at Rs. 140. Obviously in order to sustain the second appeal he stated, without any basis, that the value of the subject matter of the suit was Rs. 1,000. After holding that one arbitrary valuation cannot be substituted by another arbitrary valuation for the purpose of the appeal, the court explained that the expression 'subject matter of suit' sometimes refers to the concrete property to which the suit relates and sometimes to the title which is asserted in the suit and at others to the relief claimed. It was further added that the expression as used in the Order appears to refer (a) in a money suit to the amount claimed and (b) in a suit relating to property to the right or title of the plaintiff alleged to have been infringed 8. We might refer to Neelachikunnummal Pathu v. Katheesa,1967 KLR. It was further added that the expression as used in the Order appears to refer (a) in a money suit to the amount claimed and (b) in a suit relating to property to the right or title of the plaintiff alleged to have been infringed 8. We might refer to Neelachikunnummal Pathu v. Katheesa,1967 KLR. 556, where Raman Nayar J. held that the words "value of the subject matter of the suit" in S.13 of the Civil Courts Act and the words "a suit as to whose value" in S.53 (I) of the Court Fees and Suits Valuation Act connote the same thing so that the valuation of a suit for the purpose of jurisdiction under S.13 of the Civil Courts Act has to be done in accordance with S.53 (1) of the Court Fees and Suits Valuation Act, where specific provision is not otherwise made under the latter Act or under any other law and where S.53 (2) has no application since the court fee payable is not a fixed fee. In that case the value of the suit for purposes of court fee was only Rs. 7,912.50 and although this was shown in the plaint and memorandum of appeal, the valuation was shown as Rs 10,567.50 in excess of Rs. 10,0000 which was arrived at by adding two alternative reliefs even though only the higher should be taken into account. In order to maintain the appeal in the High Court it was attempted to show that the market value of the property which was in excess of Rs 10.000/-governs the matter and it was also pointed out that for purpose of S.110 C.P.C. the value of the subject matter of the suit is the market value. The learned judge rejected the contention holding that it was only where no special provision exists "valuation" means "market value" and that where special provision exists for valuation for pur-poses of jurisdiction, valuation has to be according to that provision. 9. The learned judge rejected the contention holding that it was only where no special provision exists "valuation" means "market value" and that where special provision exists for valuation for pur-poses of jurisdiction, valuation has to be according to that provision. 9. In Rahendranarayan v. Janakinath, AIR 1931 Calcutta 417, Rankin C.J. held (C.C. Chose J. concurring): "It is I think clear that the value referred to in S.110 of the Code is the real or market value and that where, under the Court-fees Act or otherwise, a plaint or memorandum of appeal is not required to be valued according to the real or market value, but is allowed or required to be valued upon some other basis, the doctrine of 'approbate and reprobate' does not apply." 10. We find it unable to accept counsel's contention. As prescribed by S.53(1), Court Fees and Suits Valuation Act and as explained in 1967 KLR. 656 the value for the purpose of computing court fee should be the same in this suit as it does not fall within any specific different provision. Again as 1967 KLR. 656 has, with respect, correctly explained, the words "a suit as to whose value" in S.53(1) and the words "value of the subject matter of the suit" in S.13, Civil Courts Act connote the same thing. The plaintiff had to value and did value the plaint according to the real value of the subject matter and there is no question of redetermining the real value for the purpose of the appeal as the appellant in 1967 KLR. 656 attempted to do. The doctrine of 'approbate or reprobate' as pointed out in AIR. 1931 Calcutta 417 and as settled in AIR 1964 SC. 164 applies where the real or market value has been fixed in the plaint; it ceases to apply only where the plaint is allowed or required to be valued upon some other basis. The appellant, as we observed above, cannot be allowed to overvalue the suit now as he had correctly valued the subject matter and had not merely valued it for fiscal purpose on some other basis. The decisions quoted by the appellant have, in our view, no application and as for AIR 1963 Himachal Pradesh 9, on which particular reliance was placed, the actual decision or the reasoning will not help the appellant as he had correctly valued the plaint. The decisions quoted by the appellant have, in our view, no application and as for AIR 1963 Himachal Pradesh 9, on which particular reliance was placed, the actual decision or the reasoning will not help the appellant as he had correctly valued the plaint. We upheld the objection of the learned Government Pleader and direct that the appeal memorandum be returned to the appellant for presentation to the proper court.