1952 Supreme(SC) 72

SUPREME COURT OF INDIA
10th November 1952
MAHAJAN, S.R. DAS, VIVIAN BOSE AND GHULAM HASAN, JJ.
Nemi Chand and another - Appellants
Versus
The Edward Mills Co. Ltd. and another - Respondents.
Civil Appeal No. 105 of 1950.
Advocates appeared
Shri S. S.Deedwania, Advocate, instructed by Shri Rajinder Naraian, Agent for the Appellants; Shri M.C. Setalvad, Attorney-General for India (Shri J.N. Sharma, Advocate, with him),instructed by Shri S. P. Verma, Agent for the Respondents.

Headnote:Appeal-Giving up one of the reliefs and paying court fee on remaining relief.

       Held: It is open to the appellant to give up one of the reliefs in appeal, and stamp memorandum of appeal with proper court-fee on remaining relief. - Court-felt Act (VII of 1870) Sc. 5, 12-Scope of-Civil Procedure Code, (1908) S.2 (ii), O. VII. R. 11-Decision as to Court-fee Finality-Power of appellate Court to consider whether decision about court- fee was right.

       Held: Section 12 of the Court -Fees Act does not preclude the court from considering the correctness of the order of the lower appellate court objecting the appeal on the ground that the memorandum of appeal was not properly stamped. The finality imposed by S. 12 of the Court-fees Act on decisions relating to court fee attaches only to decisions concerning valuation simplifier; it does not attach to decisions relating to the category under which a suit or appeal falls for purposes of court fees.

       The provision of S. 12 have to be read and construed keeping in view the provisions of the Code of Civil Procedure O.7, r. 11. There is ail apparent objecting between the provisions of the Code of Civil Procedure and the provisions of S. 12 Court-Fees Act, 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 on the construction of the section.

       The finality declared by S. 12 is limited only to the question of valuation pure and simple and does not relate to the category under which a certain suit falls.

       The difference in the phraseology employed in Ss. 5 and 12, Court fees Act, indicates that the scope of S. 12 is narrower than that of S. 5. Section 5 which declares decisions an 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 S. 12 makes a decision an every question relating to valuation far the purpose of determining the amount of any fee payable under Chapter 3 an a plaint or memorandum of appeal final.

       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 axing 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. 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 far the purposes of court-fee. The question of determination of valuation or appraisement only arises after it is settled in what class category it falls.

       "Perhaps it maybe 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 an such decisions a complete immunity from examination in a higher court. In other wards section 12 when it says that such a decision shall be final between the parties only makes the decision of the court an a question of court fee non-appealable and places it an the same, footing as other interlocutory non appeasable orders order the Code and it does no mote than that. If a decision under S. 12 is reached by assuming jurisdiction which the court does posses 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 provisional 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 on the question of court fee, then it is open to him to challenge the interlocutory order even on the question of Court-fee made in the suit or appeal. The work 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." (per M ahajan J.) - Court-Fees Act (VII of 1870), Sch. II, Art. 17 and S. 7 (iv) (c)-Court-fees On appeal-Appellant relinquishing additional relief and asking for relief of declaration only-Appeal cannot be thrown out on ground that additional relief should have been claimed and court fee paid the renames for consequential relief could not be read in claim for declaration.

       Held; (1) A memorandum of appeal as provided in Art. 1 of Sch. l, Court Fees Act, has to be stamped according to the value of 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 memorandum of appeal being for a declaration that the appointment of defendant 2 as managing director of defendant 1 company was invalid and ultra vire8 and he has no right to act as Chairman and Managing Director of defendant the relief being purely of a declaratory character the memorandum of appeal would be properly stamped under Art. 17, Sch.2.

       (2) It is always open to the appellant in an 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. For the purpose of deciding whether the memorandum of appeal was properly stamped according to the subject-matter of appeal, it is not open to the court to canvass the question whether the suit with-the second prayer (for the appointment of a receiver) -eliminated from it, fell within the mischief of the provision to S. 42; Specific Relief Act. That is a question which relates to the merits of the~8.ppeal and does not concern its proper institution. On this ground; therefore, the court has no jurisdiction to demand additional fee from the appellants and the appeal cannot be dismissed for failure to meet it. An order demanding additional court fee on the memorandum of appeal as it stands, that, is, minus the second prayer, would be erroneous, The claim. contained in the first relief to the effect that it be declared that defendant No.2 has not right to act as chairman and managing director because of his appointment being illegal, invalid and ultra vire8 is a declaration claimed in negative form that defendant 2 has no right to act as chairman and managing director. No claim for a consequential relief can bread within this prayer.