Patna High Court
Nand Kumar Singh And Ors. vs Bilas Ram Marwari And Ors. on 22 February, 1916
Equivalent citations: 40IND. CAS.579
JUDGMENT Chapman, J.
Case Note:
Civil Procedure Code (Act V of 1908), Section 2, Clause (2) - Decree--Determination of right of party to account for certain years, whether decree--Appeal, whether lies--Court Fees Act (VII of 1870), Section 7, Clause (IV)--Mesne profits, valuation of, claim for--Court-fee, amount of.
1. This is an appeal against an order by the learned Subordinate Judge determining the period within which mesne profits shall be payable. Two preliminary objections have been made. The first is that no appeal lies and the second is that the Court-fee which has been paid is insufficient. The question whether an appeal lies or not has to be determined with reference to the definition of the word decree in the Code of Civil Procedure. If the order by the learned Subordinate Judge amounts to a decree within the terms of that definition then an appeal lies, otherwise there is no appeal. In that definition it is said that a decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. This order by the learned Subordinate Judge certainly appears to be a conclusive determination of the right of one party to an account for certain years in the suit and the dismissal of the claim of that party for certain, other years in suit. It is, therefore, in my opinion a decree within the meaning of that definition, and this view of the matter has the support of the judgment of the Privy Council in the case of Bhup Indar Bahadur Singh v. Bijai Bahadur Singh 23 A. 152 : 2 Bom. L.R. 978 : 27 I.A. 209 : 5 C.W.N. 52 (P.C.). The change in the wording of the definition of the decree with reference to the terms of the former Section 244 does not appear to me to be relevant in the present instance, for the passage in their Lordships' judgment on which I rely occurs in the portion of the judgment which precedes the discussion of the meaning of the definition of the decree as it formerly stood. I would, therefore, hold that an appeal lies.
2. In regard to the amount of Court-fee-payable, it cannot be said to be a case in which the value of the appeal cannot be ascertained. The appellant hopes, if he succeeds in this appeal, to obtain a large sum which he has stated in his plaint. The Court-fee payable is, therefore, in my opinion an ad valorem fee. In expressing this view we are conscious that we are departing from what was considered to be the practice and it would, in our opinion, be fair to allow the appellant time until Monday the 26th February 1917 to amend the valuation in his plaint. Now that he is aware that he will have to pay an ad valorem. Court-fee he may, if he thinks it desirable, amend the valuation in his plaint. If he does so, he will be limited to the amount stated in his plaint and will not be permitted to recover any amount in excess of that. On that date an order will be given giving the appellant time to pay the Court-fee.
3. The appellant has been treated with some indulgence. The respondent Rai Bahadur Baijnath Goenka is entitled to his costs for this day's hearing. I assess the fee at five gold mohurs. The other respondent is not entitled to any costs.
Roe, J.
4. I agree.
5. A suit for mesne profits is a suit for money demanded as damages or compensation and in that sense it is to be assessed with an ad valoram, fee, Even if it be regarded as a suit for an account, the Court Fees Act, Section 7(iv), in its last clause is peremptory that any such" suit shall be approximately valued. The same provision has now been introduced into the Civil Procedure Code. The old practice of allowing plaintiffs to include in a suit for land a suit for money as mesne profits without paying any Court-fee upon the mesne profits was undoubtedly wrong and in my view a circular should be issued to the lower Courts drawing attention to this error in practice.