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SUPREME COURT OF INDIA
M.Hidayatullah, CJI., A.N.Grover, J.
Mata Din
Versus
A.Narayanan
Case No. : 2410 , 2411 of 1966
Date of Decision : 8/25/69
Advocates Appeared: Nambiar K.R. : Nambiyar A.S. : Narain Bishan : Raizada K.K. : Ratnaparkhi A.G. : Thomas Lily
Limitation Act – Section 5 – Punjab Courts Act – Section 39 – Ejectment – Arrears of Rent – This is an appeal against judgment, of a division bench of Punjab High court dismissing an appeal and a Revision filed by present appellant. – A suit was filed by appellant in court of Senior Sub-Judge, for three reliefs in respect of a business in which respondent was stated to be manager and also for ejectment of respondent from premises in which business was being carried on – Same valuation was adopted for purposes of court-fee and jurisdiction – Suit was decreed in part – Appellant obtained a decree for Rs. 600.00 as arrears of rent for 3/4 portion of the shop and Rs. 463.33 P. as damages for 1/4 portion of the shop ejectment from which portion was also decreed in his favour – But suit .was dismissed as to the remaining arrears of rent or for accounts and ejectment from 3/4 of the premises – Held, Rule is applicable in a case in which amount decreed is larger than amount for which original suit was brought. – Now, it is well known that in a suit for accounts, plaintiff is not obliged to state exact amount which would result after taking of accounts – He may do so if he is able to; but if he is not, he can put a tentative valuation upon his suit for accounts taking care that valuation is adequate and reasonable in all circumstances of case. – But rule also obtains that if amount which is found is larger than amount at which he stated his tentative valuation, he must file the appeal against larger amount and in forum before which an appeal of that valuation can go. – This rule does not apply where amount decreed is below valuation in the original court. – Here original valuation holds good both to find forum and to put a valuation. – After amendment of valuation on account of ejectment total claim was Rs. 5,930.00 and that determined the court of lowest denomination before which appeal from suit had to go – That according to other rule which court have cited was High court – Second rule, which court have later cited, does not cut across first rule – This appears to be error which was committed by Mr. Raizada and court do not find anything in case to show that this error was tainted by any mala fide motive on the part of the counsel for the litigant – In the circumstances Court think that the High court would have been justified in extending time under S. 5 of the Limitation Act and the reasoning of the High court unfortunately started from a wrong angle – Court accordingly set aside order of High court – Order Accordingly
Key Points: - The appeal from a decree for arrears of rent and ejectment was initially filed in the District court, but the valuation determined that it should have been filed in the High court (!) (!) (!) . - In suits for accounts, the tentative valuation may be used for court-fee and jurisdiction, but if the amount found is larger than the valuation, the appeal must be filed against the larger amount in the appropriate forum (!) (!) . - Mistake of counsel may be considered in condoning delay under the Limitation Act if it was bona fide and not tainted by mala fide motive (!) (!) .
M.HIDAYATULLAH, C.J.I.
(1) THIS is an appeal against the judgment, 20/03/1963, of a division bench of the Punjab High court dismissing an appeal and a Revision filed by the present appellant. The appeal arises under the following circumstances. A suit was filed by the appellant in the court of the Senior Sub-Judge, Delhi for three reliefs in respect of a business in which the respondent was stated to be the manager and also for ejectment of the respondent from the premises in which the business was being carried on. The same valuation was adopted for purposes of court-fee and jurisdiction. The valuation was divided into three parts: Rs. 4,000.00 were taken as the valuation for rendition of accounts or arrears of rent, Rs. 130.00 for injunction and Rs. 710.00 for ejectment-Total Rs. 4,840.00. During the hearing of the suit and on objection by the defendant, the valuation for ejectment was raised to Rs. 1,800.00. It appears that the appellant paid the additional court-fee but-did not amend the plaint. The suit was decreed in part on May 11, 1961. The appellant obtained a decree for Rs. 600.00 as arrears of rent for 3/4 portion of the shop and Rs. 463.33 P. as damages for 1/4 portion of the shop ejectment from which portion was also decreed in his favour. But the suit .was dismissed as to the remaining arrears of rent or for accounts and ejectment from 3/4 of the premises.
(2) THE plaintiff (appellant) thereupon filed an appeal in the District court of Delhi. In stating the valuation for the appeal, he correctly described the three-fold valuation in the suit as Rs. 4,000.00, Rs. 130.00 and Rs. 1,800.00 (total Rs. 5,930.00). He however valued the appeal as follows:
RS. 3,400 as the valuation for arrears of rent or for rendition of accounts, Rs. 130.00 for injunction and Rs. 1,350.00 for ejectment-(Total Rs. 4,880.00).
(3) NOW it is obvious that if the valuation was Rs. 4,880.00 the appeal would have lain in the District court, but if the appeal had to be valued at Rs. 5,930.00, it had to go before the High court. When the notice of the appeal was served on the defendant (respondent) he filed a cross-objection in the same court but did not take any exception to the valuation of the appeal in the District court on its presentation in that court. On 26/07/1962, the District Judge made an order upholding a preliminary objection taken before him at the hearing that the memorandum of appeal was liable to be returned for presentation to the proper court, and he ordered the memorandum of appeal to be so returned. It appears that it was filed in the High court the same day and, therefore, there was no loss of time after the return of the memorandum. The appeal was delayed by nearly one year.
(4) IT may, however, be mentioned that the plaintiff (appellant) did not submit to the decision of the District court but took the matter in revision before the High court. The appeal as re-presented and the application for revision were disposed of by the common judgment under appeal before us. The High court held that there was no ground for extending time under S. 5 of the Limitation Act for which purpose an application had been subjoined to the appeal filed in the High court.
(5) THE question In this case Is whether the High court was right in dealing with this problem as it did. The High court seemed to be of the opinion that an Advocate (Mr. K. K. Raizada) of 34 years standing could not possibly make the mistake in view of the clear provisions on the subject of appeals existing in S. 39 (1) of the Punjab courts Act. That Ss. at that time clearly showed that appeals of the value of Rs. 5,000.00 must be filed before the District court but appeals above Rs. 5,000.00 must be filed before the High court. The High court also felt that the learned counsel persisted in pursuing his own theory by filing a revision. It is on this account that time was denied to the present appellant in the appeal. The only question
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