State of Maharashtra v. Mishri Lal Tarachand Lodha and Others

Judgment

The Judgment of the Court was delivered by TarachandLodha RAGHUBAR DAYAL J.--This appeal, by special leave, raises the question whether the amount of Raghubar Dayal interest decreed for the period subsequent to the institution of a suit comes within the expreosion 'amount or value of the subject-matter in dispute' in art. I of Schedule I of the Bombay Court-fees Act, 1959, hereinafter called the Act, for purposes of court-fee payable on the memorandum of appeal. The plaintiff-respondent No. I instituted Special Suit No. 5 of 1957 in the Court of the Civil Judge (Senior Division) at Ahmednagar to recover Rs.13,205 on account of the principal lent to defendant No. 7 and interest up to the date of the suit at the rate of 9% per annum. On Ju!ly 18, 1960, his claim was decreed in a sum of Rs. 13,033-6-6 with future interest from the date of suit till reali~ation at 4 % per annum on a sum of Rs. 10,120. Defendant No. 7 appealed to the High Court against the decree.

In the memorandum of appeal, defendant No. 7 valued the claim for purposes of jurisdiction and court-fee at Rs. 13,033-6-6 and his grounds Nos. I and 48 of appeal were as follows: "I. That the lower Court erred in decreeing the plaintiff's suit. 48. That the decree is otherwise erroneous, unjust and illegal and therefore deserves to be set aside." The remaining 46 grounds related to the merits of the plaintiff'~ claim and did not deal with the correctness of the trial Court awarding future pendenie lite interest on the rate at which it was to be calculated. The Taxing Officer was of opinion that the appeal was against the whole decree and that the amount of value of the subject-matter in dispute for purposes i ss.c.R. of court-fee was Rs. 14,036. 80nP. as the amount of interest from the date of the suit till the date of the decree on Rs. 10,120 came to Rs. 1,033.40 nP.

State of Maha· and it had been conceded by the counsel for the derashtra fendant-appellant that the subject-matter of the appeal . v'. was the decree passed by the trial Court. He there- Mzshri Lal fore directed the defendant-appellant to pay the de-Tarachand Lodha ficit court-fee of Rs. 70 on the memorandum of appeal R h -b D 1 l ag u ar aya an to amen t e c aim accor mg y. The defendant-appellant then filed a revision to the High Court under s. 5(2i of the Act. His objection was upheld by the learned Judge who expressed the view: "The subject-matter in appeal is the real matter in dispute between the parties and not something which mu&t stand or fall with the decision on it. In other words, it must mean the right which is in dispute between the parties." He accordingly set aside the order of the Taxing Officer and held that the amount of court-fee paid on the memorandum of appeal wa3 the proper court-fee.

The State of Maharashtra has filed this appeal by special leave against this order. Mr. Gupte, for the appellant State, contends that the view expressed by the learned Judge is not correct and mainly relies on the construction put by Courts on the expression 'value or subject-matter in dispute' in the relevant provisions relating to the High Court's giving leave to appeal to the Privy Council. In Gooroopersad Khoond v. Juggutchunder cu the Judicial Committee said, in connection with the requirements of the directions in the Order-in-Council of April 10, 1838, with respect to the conditions for granting leave to appeal to the Privy Council, that leave to appeal was to be given in cases where the value of the matter in dispute in the appeal amounted to the specified >um of Rs. 10,000 and that in (I) 8 M.l.A. 166.

[1964] determining such value, the amount of interest decreed up to the date of the decree be included to the State of Maharaamount of the principal. shtra v Doorga Doss Chowdry v. Ramanauth Chowdr} <1 ) Mish;; Lal is an authority for the proposition that the costs Tarachand Lodha of a suit ~re no p~rt of the ~ubject-m~tter. in dispute. Their Lordships of the Pnvy CouncI! said: Rughubar Dayal " ........... .if they were allowed to be added to the principal sum claimed, it would be in the power of every litigant, by swelling the costs, to bring any suit up to the appealable value." It may also be said that a litigant's conduct may lead to a protracted trial and consequently to the increase in the amount of pendente lite interest which may raise the value of the subject-matter in dispute in appeal to the appealable value.

We do not consider it correct that the expression in the Act be construed in the light of the construction placed on a similar expression for the purposes of considering whether the case had come within the rule allowing the High Courts to give leave for appeal to the Privy Council. The Act is a taxing statute and its provisions therefore have to be construed strictly, in favour of the subject-litigant. The other provisions are for the purpose of allowing the par !y feeling aggrieved against the decision of the High Court to take up his case to the next higher Court, the Privy Council and therefore the relevant provisions in that regard had to be given a liberal construction . . In the present case we have to construe the expression 'value of the subject-matter in dispute in appeal' for the purposes of determining the amount of Court fee due on a memorandum of appeal and not for determining such valuation for prefetring an appeal to this Court.

The relevant provision governing the question of court-fee to be paid on the memorandum of appeal filed in a Civil Court is contained in art. 1 of Sche- (1) 8 M.I.A. 262. I dule I of the Act. It is to be paid ad valorem according to the amount or value of the subject-matter in dispute. The rates applicable with respect to the various State of Mahaamounts are mentioned in the article. The maximum rashtra amount of court-fee, however, is Rs. 15,000. Mishri Lal The amount of court-fee payable, therefore, de- Tarachand Lodha pends on the amount or value of the subject-matter in dispute in appeal. The defendant-appellant valued Raghubar Daya/ his claim at Rs. 13,033-6-6 and paid the requisite J court-fee on that amount. It is obvious therefore that he disputes in appeal that part of the decree which awarded Rs. 13,033-6-6 against him on account of principal and interest due up to the date of the institution of the suit.

He did not dispute, according to the value of his claim, the amount of interest which could be found on calculation for the period between the date of the suit and the date of the decree at 4% per annum on a sum of Rs. 10,120 as had been awarded under the decree. Whether his appeal is competent or not without his including this amount in his claim in appeal, is a queo.tion different from that relating to the value of the subject-matter in dispute in appeal. He does not dispute the decree for that amount and therefore the Court has not to decide about it and so this amount cannot be included in the amount of the subject-matter in dispute in appeal covered by the relevant expression. None of his grounds of appeal refers specifically to this amount of interest between the date of the suit and the date of the decree.

This makes it further plain that he does not question the propriety of awarding of future interest or the rate at which it was awarded or even the amount on which it could be awarded. It is not possible to say, in these circumstances, that the value of the subject-matter in dispute in the appeal must include this amount of interest between the date of the suit and the date of the decree. Mr. Gupte has rightly conceded that it is wellsettled that the plaintiff has to value his appeal against the dismissal of his suit on the amount of the claim he had made in the plaint and has not to include SUPREME COURT .REPORTS (1964] the interest due on the amount claimed up to the date of instituting the appeal, that the defendant has not State ofMahara-to include that amount of future interest subsequent shtra to the date of the decree till the institution of the appeal in the valuation of the appeal for the purposes Mishri Lal of court-fee and that no court-fee is to be paic! on Tarachand Lodha the amount of costs decreed in the suit when the party aggrieved appeals against the decree.

Raghubar Dayal J On what prmc1ple are these amounts not treated as forming part of the value of the subject-matter in dispute in appeal? Such value is to be determined on the substantial allegation in the plaint or from the pleas in the memorandum of appeal with respect to the points in dispute between the parties and sought to be determined by the Court. Such are necessarily the points affecting the rights of the parties sought to be adjudicated by the Court. Claims not based on any asserted right but dependent on the decision of the disputed right and reliefs in regard to which are in the discretion of the Court do not come within the purview of the expression 'subject-matter in dispute in plaint or memo of appeal'. There appears no good reason to make a distinction between the decreed amount of costs and that of pendente lite interest for the purpose of determining the amount of the subject-matter in dispute in appeal.

It is true that costs of suit arise independently of the claim and are really those which are incurred by the plaintiff while the decree for the amount of pendente lite interest is directly related to the plaintiff's claim though its award is within the discretion of the Court, but tnis will not justify the distinction. The costs too, and particularly the costs on account of court-fee and counsel's fee, arise directly on account of the claim put forward in Court. The reason really is that it is the value of the right claimed in the suit or appeal which is covered by the expression 'amount or value of subject-matter in dispute in art. I, Schedule I, of the Act and that the plaintiff' has no right to get any of these amounts from the defendant though the Court may, in its discretion, allow future interest t-,. . r I I I and costs according to the circumstances of the suit in view of ss. 34 and 35 C.P.C. This principle equally St >JM h 1. f h d ate o a araapp 1es to t e non-mclus1on o t e ecree amount ht of pendente lite interest in evaluating the subjects ra matter in dispute in appeal as that too is awarded M' ;·.

L 1 in the exercise of its discretion by the Court and the T zhs 'a' Ladh 1 . 'ff h 1 . f t . t, arac an p amt1 as no rtg t or c aim or t at amoun agams the defendant. Raghubar Daya I It is obvious that if the defendant-appellant succeeds in establi&hing to the satisfaction of the appellate Court that the decree for the principal and interest up to the date of the suit is bad in whole or in part, that will itself lead the appellate Court to exercise its discretion with respect to the amount of costs and future interest in such a way that if the plaintiff's claim is dismissed in toto, he will not be awarded any future interest or any costs of the suit or appeal and that in case bis claim succeeds in part, the amount of future interest and costs decreed in his favour would be appropriately modified by the appellate Court.

The defendant-appellant has therefore no reason to appeal against the decree for costs or the decree for future interest unless he disputes those amounts wholly or partially for certain reasons. If he disputes expressly the propriety or ccrrectness of the decree with respect to the costs or pendente lite interest independently of the claim to the subject-matter in the Trial Court he will have to pay court-fee on the amounts challenged as in that case he does dispute those amounts in appeal and therefore those amounts do come within the expression 'value of the subjectmatter in dispute in appeal'. This has been the basis of the various decisions of the Courts in which court-fee has been demanded on the amount of costs or future interest. In Mitthu Lal v. Chameli <1 J it was held that no courtfee was to be paid on interest pendente lite granted by the lower Court unless the awarding of it was specifically challenged in appeal. It was said at p. 76: (!) 57 AIL 71. [1964]

State of Maharashtra "Interest pendente lite is awarded under section 34 of the Civil Procedure Code. The Court may award it whether the plaintiff claims it or not. In this respect the court's power Mishri Lal TarachandLodha Raghubar Dayal stands on the same footing as its power to award costs to a successful party. It is well-settled rule that no court fee is payable on the amount of costs awarded by a decree appealed from, if no ground is specifically directed against the award of costs ........................ _The same principle is applicable to interest pendente lite which the Court may award in the exercise of its power under section 34. On a .proper reading of the appellant's grounds of appeal in the lower appellate court we are satisfied that the subjectmatter of his appeal to that court was the principal amount and interest up to the date of the suit." In Keolapati, Mst. v. B.N. Varma ciJ it was held that unless the appellant expressly challenges the award of future interest, no court-fee is to be paid on the amount of interest accruing from the date of the suit till the date of the filing of the appeal.

In Ashutosh v. Satindra Kumarl 2J it was said at at p. 382: "Costs are not regarded as being any part of a subject-matter in dispute either in the suit or in the appeal. In the appeal, the appellant does not in such an event really dispute the order as to costs for it is the natural order that is ordinarily made following the decision as to the main subject-matter in dispute and if he himself succeeds in the appeal in regard to the main subject-matter, automatically he will expect to succeed with regard to the costs." We therefore hold that the amount of pendente lite interest decreed is not to be included in the 'amount or value of the subject-matter in dispute in appeal' for the purposes of art. 1 of Schedule I of the Act unless the appellant specifically challenges the cor - (I) I.L.R. 12 Luck. 460. (2) 54 C.W.N. 380. I I rectness of the decree for the amount of interest pendente lite independently of the claim to set aside that decree.

The appellant here has not specifically State of Maharachallenged the decree in that respect and therefore shtra the High Court is right in holding the memorandum . v._ of appeal to be sufficiently stamped. The appeal Mishrz 1t1d''· is therefore dismissed with costs. Tarachand 0 na Appeal dismissed. Raghubar Dayal MANG I LAL SUGANCHAND RATHI (P.B. GAJENDRAGADKAR, K. SuBBA RAo, K.N. WANCHOO, N. RAJAGOPALA AYYANGAR AND J.R. MUDHOLKAR JJ.) Madhya Pradesh Accommodation Control Act, 1955 (23 of 1955), s. 4(a)-Notice-Whether tenant should in arrears on the date of suit-Acceptance of arrears-If right under notice waived-Transfer of Property Act, 1882 (4 of 1882), s. 106. The defendant was a tenant of the plaintiffs. The defendant was in arrears of rent for one year to the extent of Rs. 1,020. On April 11, 1959 the plaintiffs served a notice on the defendant requiring him to remit to them Rs. 1,020 within one month from the date of service of notice, failing which suit for ejectment wou Id be filed.

This notice was received by the defendant on April 16, 1959. On June 25, 1959 the defendant sent a reply to the notice enclosing with it a cheque for Rs. 1,320. This amount consisted of the rental arre~rs as well as the rent due right up to June 30, 1959. The plamt1ffs accepted the cheque and cashed it and gave a fresh notice on July 9, 1959 requiring the defendant to vacate the premises by the end of the month of July. The defendant did not vacate the premises. Then the plaintiffs filed a suit to eject the defendant upon the gr~mnd that the latter was in. arrears of rent for one year and had fa!led to pay the arrears w1thm one month of the service of the notice dated April 11, 1959 upon him. From the undisputed facts 1t was clear that the defendant was in fact in arrears of rent and had failed to pay it within the time prescribed by cl. (a) of s. 4 of the Madhya Pradesh Accommodation Control Act, 1953. Held: (i)

Though the notice dated April 11, 1959 could be c.onstrued to be composite notice under s. 4(a) of the accommodation Act and s. 106 of the Transfer of Property Act it was ineffective October 24