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PETITIONER: NEMI CHAND AND ANOTHER

       Vs.

RESPONDENT: THE EDWARD MILLS CO.  LTD.AND ANOTHER

DATE OF JUDGMENT: 10/11/1952

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN BOSE, VIVIAN HASAN, GHULAM

CITATION:  1953 AIR   28            1953 SCR  197

ACT: Court-Fees  Act (VII of 1870), s. 12-Civil  Procedure  Code, 1908,  s.  2(ii), 0. VII, r. 11-Decision  as  to  court-fee- Finality-Scope of s. 12-Dismi ssal for non-payment of court- fee-Power  of appellate Court to consider  whether  decision about court-fee was right-- Declaratory suit with prayer for consequential    relief-Appeal   giving   up   prayer    for Consequential relief-Maintainability-Courtfee.

HEADNOTE:   In  a plaint the following reliefs were asked  for,  viz., (i)  that it be declared that the  appointment  of’defendant No. 2 as chairman of the board of directors of a company  is illegal,  invalid and ultra vires and that he has no,  right to act as chairman, managing director etc., and (ii) that  a receiver  be appointed to take charge of the  management  of the  company.  The ’plaint bore a court-fee stamp of Rs.  10 only but,   the objection of the defendants, ad valorem  fee was  paid   Rs. 51,000 which was the valuation of the  suit. The suit was dismissed and the plaintiff preferred an appeal giving up the second relief and paying a court-fee of Rs. 10 only.   The  appellate Court ordered payment of  ad  valorem court-fee  and   non-compliance rejected the  memorandum  of appeal, 0n further appeal:’ 198 Held, (i) that it was o pen to the appellant to give up  the second  relief in appeal and, as the subject-matter  of  the appeal was of & purely declaratory nature, the memorandum of appeal was properly stamped; (ii)that the first relief was of a purely declaratory nature and did not involve any consequential relief ; (iii)that  s. 12 of the Court-Fees Act did not preclude  the Court  from considering the correctness of the order of  the low  er  appellate court rejecting the appeal    the  ground that the memorandum of appeal was not properly stamped. The finality imposed by s. 12 of the Court-Fees Act    deci- sions  relating  to  court-fee attaches  only  to  decisions concerning  valuation  simpliciter; it does  not  attach  to decisions  relating  to the category under which a  suit  or appeal falls for purposed of court-fees.

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Section  12 of the Court-Fees Act when it says that  such  a decision  shall be final between the parties only makes  the decision  of  the  court    a  question  of  court-fee  non- appealable  and  places  it    the  same  footing  as  other interlocutory non-appealable orders under the Code and  does no more than that.  If a decision under s. 12 is reached  by assuming  jurisdiction which the court does not  possess  or without  observing the formalities which are prescribed  for reaching  such  a  decision, the order  obviously  would  be revisable  by the High Court in the exercise  of  revisional powers.   Similarly, when a party thinking that  a  decision under  s. 12 is palpably wrong takes the risk of his  plaint being  rejected or suit dismissed and then appeals from  the order rejecting the plaint or from the decree dismissing the suit but not from the decision   the question of  court-fee, then it is open to him to challenge the interlocutory  order even   the question of court-fee in the suit or appeal.  The word " finality " construed in the limited sense in which it is often used in statutes means that no appeal lies from  an order  of this character as such and it means no  more  than that.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 105 of  1950. Appeal from the Judgment and Order dated March 22, 1945,  of the Court of the Judicial Commissioner, Ajmer-Merwara, Ajmer (Davies J. C.) in Civil First Appeal No. 16 of 1944, arising out of the Judgment and Decree dated March 13, 1944, of  the Court  of  the Judge, Small Causes,  Ajmer,  and  Additional District Judge, Ajmer, in Civil Suit No. 28 of 1942. S.   S. Deedwania for the appellant. M.   C. Setalvad, Attorney-General for India, (J.  N, Sharma, with him) for the respondents,                            199 1952.  November 10.  The Judgment of the Court was delivered by MAHAJAN’J.-This is an appeal by special leave granted by the Privy  Council  and limited to the  question  of  court-fee, viz.,  whether   the memorandum of appeal presented  to  the High Court court-fee was payable under section 7 (iv) (e) or article 17 of Schedule II of the Court-Fees Act. The  question whether the memorandum of appeal was  properly stamped  arose in the following circumstances:  Edward-Mills Co. Ltd. is a joint stock company situate in Beawar,  Ajmer- Merwara.  In accordance with the provisions of the  articles of  the company one Seth Gadh Mal Lodha and Rai  Sahib  Moti Lal  (respondent  No.  2) were  its  chairman  and  managing director  respectively  since  1916.  Seth  Gadh  Mal  Lodha represented  his  family ’firm of Kanwal Nain  Hamir  Singh, while  Rai Sahib Moti Lal represented the joint family  firm of Champa Lal Ram Swaroop,   1st July, 1938, Rai Sahib  Moti Lal and his firm were adjudged insolvents by the Bombay High Court.   The result was that respondent No. 2 had to  vacate the office of managing director and -the members of his firm also  became ineligibleforit.  By a resolution of the  board of  direetors passed   18th July, 1938, Gadh Mal  Lodha  was appointed  to  take  the  place of Rai  Sahib  Moti  Lal  as managing  director.   Gadh Mal Lodha  died    llth  January, 1942,  and  the  board  of  directors  then  appointed  Seth -Sobhagmal  Lodha  to act as chairman as  well  as  managing director till the, appointment was made by the company.   An extraordinary meeting of the company was called for the  8th February,  1945, for the election of the chairman.  At  this

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meeting conflict &rose between the two groups represented by Sobhagmal  Lodha  and  Moti  Lal.   The  chairman  therefore dissolved  the  meeting  but  the  supporters  of  Moti  Lal continued to hold it and passed a resolution appointing  him as the sole agent and chairman for a period of twenty  years a  remuneration equal to ten per cent of the profits of  the company It-is this 200 resolution  of the 8th February, 1942, which has led to  the present dispute. Seth  Sobhagmal in the situation that arose  approached  the District  Judge  of  Ajmer with the prayer  that  a  general meeting of the company may be held under the supervision  of the court.  This request was allowed   11th February,  1942, and  the  court  ordered that the  meeting  be  held    12th February,  1942, under the chairmanship of  Seth  Sobhagmal. Respondent No. 2 being aggrieved by this order, filed an ap- plication  in  revision  in  the  Court  of  the   ’judicial Commissioner  impugning  the order.   The  learned  Judicial Commissioner  allowed  the revision and  directed  that  the resolution of the 8th February, 1942, should be acted upon. Having failed to get redress in the summary proceedings, the appellant  then  filed  the suit out of  which  this  appeal arises  for  quashing the resolution of  the  8th  February, 1942.  In the plaint he asked for the following relies:-      1.  That  it  be  declared  that  the  appointment  of defendant No. 2 is illegal, invalid and ultra vires and that he  has no right to act as chairman, managing director  etc. of defendant No. 1;        2.     That  a receiver be appointed to take  charge of the management of the company, until a properly qualified chairman  managing  director  etc.  are  duly  appointed  as required by the memorandum and articles of the company. The plaint bore a court-fee stamp of Rs. 10 only, but    the objection  of  the respondents that  court-fee  was  payable relief No. 2 the appellants paid ad valorem fee   Rs. 51,000 which  was  the  valuation  of  the  suit  for  purposes  of jurisdiction. The  Additional  District  Judge dismissed  the  suit    the preliminary  ground  that  it was  not  maintainable  as  it related  to the internal management of the company and  that the, appellants had no right to bring it without  impleading the directors who were necessary parties to it. 201 Aggrieved  by  this  decision  of  the  trials  Judge,   the appellants preferred an appeal to the Court of the  Judicial Commissioner,  Ajmer-Merwara, at Ajmer.  The  memorandum  of appeal  was Stamped with a courtfee stamp of Rs. 1 0 and  it was expressly stated therein that relief No. 2 of the plaint was given up.  An objection was raised regarding the  amount of  courtfee paid   the memorandum of appeal.  The  Judicial Commissioner ordered that proper court-fees be paid  thereon in  a month.  In this order no reasons were given  for  this decision.  The additional fee demanded was not paid, and the Judicial Commissioner dismissed the appeal with costs   22nd March, 1945.  An application was made for leave to appeal to the  Privy Council against this order but, it  was  refused. In the order refusing leave it was said as follows:- "   appeal to this court, the memorandum was  again  stamped with  a ten rupee stamp only and the  respondents  therefore objected.   It  having been conceded by  plaintiffs  earlier that  the relief for the receivership was  consequential  to the relief for the declaration, the appellants were directed to pay the same stamp as had been -paid in the trial  Court. They  objected  stating that they had  expunged  from  their

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memorandum  of  appeal  the request that  the  court  should appoint a receiver and that they were not, therefore, liable to  pay  the  same amount    this a notice  was  issued  and counsel were beard. It  being  clearly  set out in section 42  of  the  Specific Relief  Act that no court shall grarant a  declaration  only where the plaintiff being able to seek further relief than a mere  declaration  of title omits to do so,  the  appellants were  directed to pay as earlier ordered the same amount  as bad  ultimately  been paid   the plaint.  They  had  earlier sought a consequential relief and the court ’was, therefore, entirelv  unable to hold that the plaintiffs were unable  to seek a further relief, they having sought the relief in  the lower court and it having been refused to them.  The  amount of-the stamp was not paid and the appeal was therefore  dis- missed with costs." 202 The  reasons for demanding additional court-fee, though  not mentioned in the original order, are stated in this order. The question for determination in this appeal is whether the order  of  the Judicial  Commissioner  demanding  additional court-fee can be sustained in law.  A memorandum of  appeal, as  provided  in article 1 of Schedule I of  the  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  determines  the value  of  the appeal for purposes of court-fee.   The  only relief claimed in the memorandum of appeal was the first one mentioned  in  the plaint.  This relief being  purely  of  a declaratory character, the memorandum of appeal was properly stamped under article 17 of Schedule II It  is always open to the appellant in appeal to give  up  a portion of his claim and to restrict it.  It is further open to him; unless the relief is of such a nature that it cannot be split up, to relinquish a part of the claim and to  bring it within the amount of court-fee already paid: Brahnmnandam v. Secretary of State for India(1); Ram Prasad v. Bhiman(2); Karam  Chand v. Jullundur Bank Ltd(1); Neelachalam v.  Nara- singha  Das(4);  Sah Bamehand v. Pannalal(5); Chuni  Lal  v. Sheo  Charanlat Lalman(1).  The plaintiffs in express  terms relinquished  the  second  relief,they had  claimed  in  the plaint,  in their memorandum of appeal.  For the purpose  of deciding  whether  the  memorandum of  appeal  was  properly stamped according to the subjectmatter of the appeal, it was not  open  to  the  Judicial  Commissioner  to  canvass  the question whether the suit with the second prayer  eliminated from  it fell within the mischief of the proviso to  section 42  of the Specific Relief Act.  That was a  question  which related to the merits of the appeal and did not concern  its proper institution     this ground, therefore, the  Judicial Commissioner had no jurisdiction to demand (I) (1930) I.L.R. 53 Mad. 48 (2) (1905) I.L.R. 27 All. 151. (3)  A.I.R. 1927 Leh. 543. (4)  A.R. 1931 Mad 716. (5)  A.I.R. 1929 All. 308. (6)  (1925) I.L.R. 47 All. 756. 203 additional fee from the plaintiffs and the appeal could  not be  dismissed  for failure to meet it.  We are thus  of  the opinion that the order demanding additional court-fee    the memorandum of appeal as it stood,’ that is, minus the second prayer,  was  erroneous and we hold that the  memorandum  of appeal  was properly stamped, as the subject-matter  of  the appeal was purely of a declaratory character.

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Mr.  Setalvad for the respondents contended that  the  first relief  claimed  in the plaint, and which was  the  subject- matter of the appeal included within it consequential relief and  was not purely declaratory in nature and therefore  the Judicial  Commissioner  was right  in  demanding  additional court-fee    the value of the consequential relief.  It  was said  that the words that respondent No. 2 "had no right  to act  as chairman and managing director" amounted to a  claim for  consequential  relief.  We are unable  to  agree.   The claim contained in the first relief of the plaint is to  the effect that it be declared that defendant No. 2 has no right to  act  as  chairman an managing director  because  of  his appointment  being illegal, invalid, and ultra  vires.   The declaration claimed is in negative form that defendant No. 2 has  no right to act as chairman and managing director.   No claim  for  a consequential relief can be read  within  this prayer.  The words "that defendant 2 has no right to act  as chairman.......’’  are  mere repetition and  reiteration  of what is contained in the opening sentence of the  paragraph. This  contention  of  Mr.  Setalvad,  therefore,  cannot  be sustained. It  was  next contended that in view of  the  provisions  of section 12 of the Court-Fees Act it should be held that  the decision of the Judicial Commissioner’ was final, and  could not  be challenged in appeal.  Section 12 of the  Court-Fees Act enacts as follows: "Every  question  relating to Situation for the  purpose  of determining  the  amount of any fee  chargeable  under  this chapter   a plaint or memorandumu 204 of appeal shall be decided by the court in which such plaint or  memorandum,  as  the case may be,  is  filed,  and  such decision  shall  be  final as between the  parties  ’to  the suit." The provisions of this section have to be read and construed keeping  in  view  the  provisions  of  the  Code  of  Civil Procedure.   Order  VII,  Rule  11,  Civil  Procedure  Code, provides as follows:- "The plaint shall be rejected- (b)  where  the  relief  claimed  is  undervalued  and   the plaintiff,    being  required by the court  to  correct  the valuation within a time- to be fixed by the court, fails  to do so;...... (d)  where  the relief claimed is properly valued,  but  the plaint is written upon paper insufficiently stamped, and the plaintiff,    being  required  by the court  to  supply  the requisite  stamp  paper  within a time to be  fixed  by  the court, fails to do so." An  order  rejecting  a plaint is a  decree  as  defined  in section  2;  sub-section (ii), and is  appealable  as  such. There is an apparent conflict between the provisions of  the Code  of  Civil Procedure and the provisions of  section  12 which make the order relating to valuation final and efforts to  reconcile the provisions of the Court-Fees Act  and  the Code  have resulted in some divergence of  judicial  opinion the  construction of the section.  In a number of  decisions the  Calcutta  High Court took the view  that  the  finality declared by section 12 of the Court-Fees Act had been  taken away  by the relevant provisions of the Code, as  the  order rejecting  a  plaint was appealable as a decree,  no  matter whether the dispute related to the category under which  the same  falls for purposes of court-fee or only  to  valuation pure  and  simple under a particular category:  Vide  In  re Omrao  Mirza v. Mary Jones(,) and Tara Prasanna Chongdar  v. Nrisingha  Moorari Pal(1).  This extreme view has  not  been

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maintained in later decisions and it has been held that  the finality  declared  by  section 12 is limited  only  to  the question (1883) 12 C.L.R. 148. (2) (1924) I.L..R. 51 Cal. 216. 205 of  valuation  pure and simple and does not  relate  to  the category under which a certain suit falls: Tariman Khatun v. Secretary  o State for India in Council(1).   The  Allahabad High  Court in its earlier decisions took the extreme  view: Vide Muhammad Sadik v. Muhammad Jan(2).  Later   that -court veered  round  to  the view that the  finality  declared  by section  12 only related to matters of,  appraisement.   The High  Court  of Lahore  has placed  a  similar  construction the meaning of the expression "valuation" in section 12  and has held that the finality attaches only to a decision which concerns valuation simpliciter and no finality attaches when a  court decides a question whether a case falls within  one or  other category of the cases mentioned in  the  different sections  and  schedule of the Court Fees  Act:  Vide  Mahna Singh  v. Bahadur Singh(1); Mst.  Parmeshri v.  PannaLal(1). Thisviewhasconsistentlybeenheldin  thatcourt.   The   Madras High Court took the same view in Lakshmi Amma v. Janamajayam Nambiar(5);  Annamalai Chetty V. Cloete(6); and  Narasimhalu Chetty v. Bamayya Naidu(7).  Mr. Setalvad drew our attention to  the recent Full Bench decision of that court  in  Madana Mohana  Naiko v. Krupasindhu Naiko(1).  That case,  however, concerned  the  second  part  of  section  12  and  was  not concerned directly with the construction to be placed    the first  part of the section.  It, however,  contains  certain observations  indicating that in the opinion of  the  judges there was no ground for this restricted construction of  the word  "  valuation  " in section 12 and  that  the  finality declared  bysection 12 attached not only to  valuation  pure and  simple  but  also attached  to  decisions  relating  to category under which a suit or appeal falls for purposes  of court-fee.   These obiter observations, however,  cannot  be said  to ,,overrule the earlier Full Beach decision of  that court in Lakshmi Amma v. Janamajayam Nambiar(5).  In a (1)  I.I.R.(1940) 2 Cal. 166. (2)  (1889) I.L.R. II All. 91, F.B. (3)  1919 Punjab Record 16. (4)  A I.R. 1931 Lah. 378. 27 (5)  (1894) 4 M.L.J. 183, F.B. (6)  (1882) I.L.R. 4 Mad. 204. (7)  A.I.R. 1942 Mad. 502. (8)  A.I.R. 1937 Mad. 81. 206 later  decision in Narasimhalu Chetty v.  Bamayya  Naidu(1), the  decision of the Full Bench was explained as not in  any way  overruling the decision in Lakshmi Amma v.  Janamajayam Nambiar(2).   All recent decisions of the Bombay High  Court have taken the same view: Vide Dada v. Nagesh(3);  Krishnaji Bari  Dhandhere v. Gopal Narain Dhandhere(4).  Mr.  Setalvad drew our attention to an earlier decision of the Bombay High Court in Vithal Krishna v. Balakrishna Janardan(5).  In that case  the court undoubtedly held that no appeal lay and  the finality declared by section 12 was comprehensive enough  to include  all  questions  whether  relating  to  category  or valuation  pure and simple.  It was, however, held that  the High  Court  could  correct an  erroneous  decision  in  the exercise  of  its  revisional  powers.   Thus  the  finality declared  by  section 12 was destroyed by  the  exercise  of powers  of appeal under the guise of  exercising  revisional

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jurisdiction.   In  Patna and Oudh the game  view  has  been taken as in Lahore.  Vide Chandramoni Koer v. Basdeo  Narain Singh  (6); Gumani v. Banwari(7).  It thus appears that  the consensus  of judicial opinion is against  the  construction suggested  by Mr. Setalvad.  We think that the  construction given  to the language in section 12 in these  decisions  is right, and our reasons for saying so are these: The difference in the phraseology employed in sections 5 and 12 of the Court-Fees Act indicates that the scope of section 12  is  narrower  than that of section 5.  Section  5  which declares  decisions   questions of court-fee  whenever  they arise in the chartered High Courts as final makes a decision as  to the necessity of paying a fee or the  amount  thereof final.  Whereas section 12 makes a decision   every question relating  to  valuation for the purpose of  determining  the amount  of  any fee payable under chapter 3    a  plaint  or memorandum  of  appeal final.  Had section 12  been  drafted somewhat as follows     (i) A.I.R. 1942 Mad. 502.(5) (1886) I.L.R. lo Bom. 610, F.B,     (2) (1894) 4 M.L.J. 183 F.B.(6) (1921) 4 P.L.J. 57.     (3) (1899) I.L.R. 23 Bom. 486.(7) (1920) 54 I.C. 733. (4)  A.I.R. 1936 Bom. 166. 207 "If  any  dispute  arises  as  to  the  amount  of  any  fee chargeable  under this chapter   a plaint or  memorandum  of appeal,  it  shall  be decided by the court  in  which  such plaint  or  memorandum is filed and such decision  shall  be final as between the parties$), then  the construction contended for by Mr.  Setalvad  might have  been  upheld.  When the two sections in the  same  Act relating  to the same subject  matter have been  drafted  in different  language,  it is not unreasonable to  infer  that they were enacted with a different intention and that in one case the intention was to give finality to all decisions  of the taxing officer or the taxing judge, as the case may  be, while  in  the  other  case it was  only  intended  to  give finality  to questions of fact that are decided by  a  court but not to questions of law.  Whether a case falls under one particular section of the Act or another is a pure  question of law and does not directly determine the valuation of  the suit   for   ’purposes  of  court-fee.   The   question   of determination of valuation or appraisement only arises after it is settled in what class or category it falls. It  has been argued in some decisions that it is  absolutely necessary  to  decide  the category in which  a  case  falls before  assessing its value and therefore the  determination of  the question of category is necessarily involved in  the determination  of the valuation of the suit for purposes  of courtfee.   This argument, though plausible, does  not  seem sound.   The actual assessment of the value  depends  either arithmetical  calculations or upon a valuation by an  expert and    the evidence led in the case, while the  decision  of the question of category is one of law and may well be  said to be an independent question antecedent but not relating to valuation.  The expression  " valuation" interpreted  in its ordinary  meaning  Of  "appraisement",  cannot  be  said  to necessarily  include  within  its  ambit  the  question   of category which is a matter of law.  The construction  placed this section by a long course of decisions is one which 208 reconciles the provisions of the Court-Fees Act with that of the  Code  of  Civil  Procedure  and  does  not  make  those provisions  nugatory and is therefore more  acceptable  than the  other constructions which would make the provisions  of

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either one or the other of these statutes nugatory.  Perhaps it  may be possible to reconcile the provisions of  the  two statutes by holding that the finality declared by section 12 of  the Court-Fees Act means that the parties cannot  impugn such a decision by preferring an appeal but that it does not confer   such decisions a complete immunity from examination in  a higher court.  In other words section 12 when it  says that such a decision shall be final between the parties only makes  the decision of the court   a question  of  court-fee nonap  pealable  and places it   the same footing  as  other interlocutory  nod-appealable orders under the Code  and  it does  no more than that.  If a decision under section 12  is reached  by assuming jurisdiction which the court  does  not possess  or  without  observing the  formalities  which  are prescribed   for  reaching  such  a)  decision,  the   order obviously  would  be  revisable by the  High  Court  in  the exercise  of  revisional powers.  Similarly,  when  a  party thinking that a decision under section 12 is palpably  wrong takes  the  risk  of  his  plaint  being  rejected  or  suit dismissed  and  then appeals from the  order  rejecting  the plaint  or from the decree dismissing the suit but not  from the decision   the question of court-fee, then it is open to him to challenge the interlocutory order even   the question of  court-fee  made  in  the  suit  or  apppal.   The   word "finality"  construed  in the limited sense in which  it  is often  used  in statutes means that no appeal lies  from  an order  of this character as such and it means no  more  than that. Conceding  for the sake of argument but  not  admitting-that Mr.  Setalvad is right in his contention that section 12  is comprehensive  enough  to  include  within  its  ambit   all questions  relating  to  court-fee whether  they  involve  a decision  as  to  question of category or  as  to  valuation simpliciter, in the present                            209 case  the  Judicial  Commissioner  decided  none  of   these questions and: his decision cannot be said to be one falling within  the  ambit  of section 12.  All  that  the  Judicial Commissioner  decided  was  that as the suit  could  not  be maintained without asking for relief No. 2, the same fee was payable    the  memorandum of appeal as    the  plaint.   In substance   the  court  decided  an  issue   regarding   the maintainability of the appeal without first deciding whether the  appeal had been properly instituted in that court.   No finality can attach to such a decision by the provisions  of section 12, as in reality it decides no question within, the ambit of section 12 of the Court-Fees Act. For  the reasons given above the second objection raised  by Mr.  Setalvad  that  no appeal lies from the  order  of  the Judicial Commissioner by special leave is without force  and is overruled. The result, is, that the appeal is allowed, the decision  of the  Judicial  ’Commissioner dismissing the  appeal  is  set aside  and  the  case  remanded  to  him  for  decision   in accordance  with  law    the basis that  the  memorandum  of appeal   presented  to  him  was  properly   stamped.    The appellants’ costs of this appeal will be costs in the appeal in the Court of the Judicial Commissioner.                      Appeal allowed. Agent for the appellant: Rajinder Narain. Agent for the respondents: S P. Varma. 210