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First Appeal from Order No. 213 of 1964, decided on 9th May 1974.

Court Fees Act (VII of 1870)

-- Sched. 1, Art. 1-Interest, pendente lite---Court-fee-Appeal (civil Appeal against decree awarding sum of money and future interest No court-fee payable on interest pendente lite unless specific ground of appeal taken against such award-Appellant attacking grant of interest pendente lite-Obliged to pay court-fee on interest accruing to decree holder up to date of decree-Appellant claiming reduction of amount of interest awarded-Must pay court-fee on amount by which decree sought to be reduced-Pendente lite interest allowed or disallowed-A fact ascertained-Ad valorem court-fee on suit amount payable if appellant attacks grant, or seeks reduction, of interest.

According to law in an appeal against a decree awarding a sum of money and future interest, no court-fee is payable on the interest pendente lite unless a specific ground of appeal is taken in respect of such an award. Article 1, Schedule I, Court Fees Act lays down that court-fee should be paid ad valorem on the value of the subject-matter in dispute. In case of appeal, subject-matter means the dispute in appeal. If the appellant attacks the grant of interest pendente lite then he is obliged under the law to pay the court-fee on the interest accrued to the decree -holder up to the date of the decree. Even if be claims that the interest awarded by the Court be reduced, he must pay the court-fee on the amount by which he seeks the decree to be reduced as the same would be the subject-matter of the appeal. Since the pendente lite interest allowed or disallowed can be ascertained, therefore, under Article 1, Schedule I ad valorem court-fee is to be paid on the suit amount. This is, however, subject to the condition if the appellant attacks the grant of interest or other wise seeks reduction in the rate of interest.

The latest trend in the cases, of the present kind, is that in an appeal against a decree awarding a sum of money and future interest no court-fee is payable on pendente lite interest unless a specific ground of appeal is taken in respect of such an award.

A. M. Burq v. Central Exchange Bank Ltd. P L D 1966 Lah. 1 ; Bhag Shah v. Labha Mal A I R 1933 Lah. 941; Damodar Parshad v. Hardo Parashad A I R 1931 All. 351 ; Kala Ram v. Punjab National Bank A I R 1937 Pesh. 3 ; Mithoo Lal v. Mst. Chameli and another A I R 1934 All. 805 ; Sheikh Rehman v. Balchand and another A I R 1937 Nag. 6 ; Jaswant Ram and others v. Moti Ram and others A I R 1926 Lah. 376 ; Hari Chand v. Madan Lal and others A I R 1930 Lab. 832 ; Kalu Ram v. Hanwant Ram and others A I R 1934 Lah. 488 ; Chuni Lal and others v. Bell Ram and others 20 I C 473 ; Farman Ali Dewan and others v. Mansoor Ali and others P L D 1962 Dacca 214 and Pakistan Boy scouts Association v. Qazi Muhammad Sharif P L D 1969 Pesh. 175 ref.

Sh. Maqbool Ahmad I for Appellant.

Pervaiz Akhtar for Respondent No. 1.

Kh. Tufail and Asghar Ali Bhatti, A. A.-G. for Respondent No. 2.

Date of hearing : 15th May 1973.

Ch. Rehmat Ullah, respondent No. 1, filed a suit for the recovery of Rs. 21,759-5-8 with further interest at the rate of 6 % p. a. from the date of the institution of the suit i.e. 2nd of May 1951, against the appellant and respondent No. 2. This suit was decreed by the learned Senior Civil Judge, Lahore, by his judgment and decree dated 28th of February 1962. The decree was for Rs. 21,759-5-8 in favour of respondent No. 1 against the appellant and respondent No. 2 with interest at the rate of Rs. 6 % p. a. from the date of the institution of the suit till Ist of January 1958 to 13th of April 1960 disallowing the interest for the period when the suit remained dismissed on account of plaintiff's default and thereafter allowing interest from 13th of January 1961 to the date of the decree with no future interest. It is admitted that the amount of interest calculated as granted by the Court, comes to about Rs. 12,000.00.

2. The appellant challenged the judgment and decree before the learned District Judge, Lahore, as the value of the original suit was of Rs. 21,759-5-8. A preliminary objection was however, raised by respon dent No. 1 that since the subject-matter of the appeal was more than Rs. 25,000.00 after having included the amount of interest in the principal amount, therefore, the appeal lay to the High Court and not to the Co art of the District Judge. This objection was granted by Capt. Muhammad Daood Khan, then Additional District Judge, Lahore and the appeal was returned under order VII, rule 10, C. P. C. for presentation to the proper Court. The reason ing adopted by the learned Additional District Judge is that the amount of interest could not be determined on account of uncertainty with regard to rate of interest at the time of the institution of the suit. According to him, it was by way of mesne profits and being unsettled amount between the parties, valuation of the appeal could only be determined in view of the final determination of the mesne profits and accounts, liable to be recovered by the plaintiff. The appellant challenged the validity of the impugned order in the present F. A. O. and has also as a precautionary measure challenged the judgment and decree passed by the learned Senior Civil Judge, Lahore in R. F. A. No. 55 of 1964. Both the appeals are being disposed of by this judgment. Since the fate of R. F. A. depends upon the decision of F. A. O., therefore, I will first decide the same.

3. The plaintiff-respondent No. I sued the appellant as well as respon dent No. I for the recovery of specific amount of Rs. 21,759-5-8 and prayed for grant of decree of the suit amount with further interest at the rate of Rs. 6 % p. a. meaning thereby from the date of the institution of the suit. It is clear from the averments as made in the plaint that whatever amount was due to the plaintiff respondent No. 1 at the time when he filed the suit, he claimed the same in his prayer. The question to be determined is as to whether in the present case which is for recovery of the specific amount forum of appeal will be determined according to the value of the original suit as fixed by the plaintiff or on total amount including the amount of interest as founded by the learned trial Court. According to section 18 of West Pakistan Civil Courts Ordinance, 1962, promulgated on 8th of January 1962, an appeal from a decree or an order of a Civil Judge shall lie to the High Court if the value of the original suit in which decree or an order was made, exceeds 25,000.00 rupees. According to Article 1, Schedule I of the Court Fees Act, the court-fee will be paid in appeal on the amount or value of the subject-matter in dispute. It has been argued that since the amount of interest granted by the learned trial Court in favour of the plaintiff and against the appellant has to be included in the principal amount, the subject-matter in dispute of the appeal would be the total amount of both the sums, which decidedly exceeds Rs. 25,000.00 and as such the forum of the appeal, would be the High Court and not the Court of the District Judge.

4. According to law in an appeal against a decree awarding a sum of money and future interest, no court-fee is payable on the interest pendente, lite unless a specific ground of appeal is taken in respect of such an award.' As discussed above, Article 1, Schedule 1, Court Fees Act lays down that court-fee should be paid ad valorem on the value of the subject-matter in dispute. In case of appeal, subject-matter means the dispute in appeal. If. the appellant attacks the grant of interest pendente lite then he is obliged under the law to pay the court-fee on the interest accrued to the decree holder up to the date of the decree. Even if be claims that the interest awarded by the Court be reduced, he must pay the court-fee on the amount by which he seeks the decree to be reduced as the same would be the subject-matter of the appeal: Since the pendente lite interest allowed or disallowed can be ascertained, therefore, under Article 1, Schedule I as referred to above ad valarem court-fee is to be paid on the suit amount. This is, however, subject to the condition if the appellant attacks the grant of interest or otherwise seeks reduction in the rate of interest. Reliance in this respect can be placed upon A. M. Barq v. Central Exchange Bank Ltd. P L D 1966 Lah. 1, Bhag Shah v. Labha Mal A I R 1933 Lah, 941, Demodar Parshad v. Hardo Parashad A I R 1931 All. 351, Kala Ram v. Punjab National Bank A I R 1937 Pesh. 3, Mithoo Lal v. Mt. Chameli and another A I R 1931 All, 805 and Sheikh Rehman v. Balchand and another A I R 1937 Nag, 6. The facts of the case as reported in A. M. Burq v. Central Exchange Bank Ltd. are that the appellant in that case had three cash credit accounts with the respondent Bank. In the first account the appellant had pledged his shares as security for the repayment of the amount. In the other account the amount was advanced to him against the pledge of paper. The third account was in the name of Messrs Burq & Company, of which the appellant was the sole proprietor. The respondent-Bank, instituted a suit against the appellant for the recovery of Rs. 35,807-8-10, as the amount due to it under the three accounts inclusive of interest at the rate of 7 % per annum on the first account, 8 % per annum on the second account and 9 % per annum on the third account. It also claimed future interest from the date of the suit till the date of the realization of amount. The suit was decreed for Rs. 20,207-10-1 on the basis of the share amount and for Rs. 4.029-12-3 on the paper account alone. The plaintiff was also awarded future interest at the rate of Rs. 7 % in the share account and 8 % in the paper account from the date of the suit till the date of the decree and then to the date of the realization.

5. The appellant, before the High Court, challenged this judgment and decree in appeal but not in entirety. He also challenged the rate of interest allowed to the decree-holder and had claimed that the amount of interest should have been calculated at the rate of 4 % per annum. He had not, however, paid any court-fee on the amount which he wished to be reduced in calculation of the interest. It was held that the appellant was liable to pay court-fee on the amount of interest by which he wished the same to be reduced. Since he bad not paid court-fee nor did he make any offer to pay the same before the Court his appeal so far as it related to the interest for the period prior to the filing of the suit was rejected. It was further held that since the appellant had challenged the rate of interest, therefore, he was liable to pay court-fee on the amount by which he wished decretal amount to be reduced. It may be noticed here that the suit filed in the present case by the plaintiff was for a specific amount, as mentioned above and the same was not a suit for accounts. The facts of the case as reported in Mithoo Lal v. Mt. Chameli and another are that the suit in that case filed by the plaintiff, was one for profits. It was decreed by the trial Court for certain sum of money with interest at the rate of 12 % per annum up to the date of the suit and interest pendente lite was awarded at the same rate till the date of decree and thereafter at 6 %. The defendant appealed to the Court of the District Judge against the decree passed against him. In his memorandum of appeal no ground was specifically directed against the award of interest before the institution of the suit or pendente lite. The appeal, however, sought the reversal of the decree in its entirety and the dismissal of the suit. The subject-matter of the appeal, therefore, was held by the High Court to be the principal amount of the suit and the interest up to the date of the filing of the suit. It was held that ad valorem court-fee was payable under Article i Schedule 1, Court Fees Act on the value of the subject-matter of the appeal. It was further observed that it was well settled rule that no court-fee was payable on the amount of costs awarded by a decree appealed from if no ground was specifically directed against the award of costs.

6. It was held in Sheikh Rahman v. Balchand and another that court-fee was leviable on sums which can be ascertained with certainty but not on those which cannot. Article 1, Schedule I, Court Fees Act provides that court-fee is to be paid ad valorem on the value of the subject-matter in dispute. In case of appeal that can only mean the dispute in appeal. If the suit is dismissed and the plaintiff wants future interest in appeal, he must pay court-fee on the amount he claims up to the date on which he files appeal. The facts of the case as reported in Bhag Shah v. Labha Mal are that the appellant Bhag Shah brought a suit against Labha Mal and his vendees for the recovery of Rs. 21,506 inclusive interest. He prayed for decree with costs and claimed interest at the rate of 1 % per annum from the date of the suit up to the date of realization of the decretal amount. The learned trial Court passed a preliminary decree in favour of the plaintiff for the principal amount against the mortgage property but held that the said property was not responsible for the amount of interest and for that he made Labha Mal respondent personally responsible. The plaintiff preferred appeal in the High Court against this decree and urged that whole of the decree including costs should have been made a charge on the mortgage property and interest ought to have been allowed to him from the date of the suit up to the realization of the decree. It was also urged before the High Court that the Courts below had erred in not allowing interest to be a charge on the mortgaged property and in not making costs also a charge on the same. It was contended that this mistake should he rectified. The appellant further claimed that -interest from the date of the suit to the date of the realization of- the decree should be allowed. With regard to the last prayer, an objection was raised by the respondent that no claim for interest for the period, above-mentioned, could be entertained in appeal as no court fee had been paid on account of that relief. It was argued that even if the nature of the relief was uncertain, the appellant at least should have paid ad valorem court-fee on the amount of interest due up to the date of the appeal as the same could be easily .calculated. ' The contention raised on behalf of the respondent was accepted by the High Court and it was held that so far as the appeal with regard to question of interest after the date of suit was concerned, it was liable to be dismissed as no court-fee for the said relief had been paid. It was further observed by the learned Judges of the High Court that the trend in the various Courts on this point was in favour of court-fee being necessary either on the sum due up to the date of the appeal or at least court-fee of Rs. 10 as provided by Article 17(6) of Schedule II, of the Court Fees Act. ,

7. The learned counsel for the respondents have relied upon cases such as Jaswant Ram and others v. Moti Ram and others A I R 1926 Lah. 376, Hari Chand v. Madan Lal and others A I R 1930 Lah. 832, Kalu Ram v. Hanwant Ram and others A I R 1934 Lah. 488, Chuni Lal and others v. Beli Ram and others 20 I C 473, Farman Ali Dewan and others v. Mansoor Ali and others P L D 1962 Dacca 214 and Pakistan Boyscouts Association v. Qazi Muhammad Sharif P L D 1969 Pesh. 175, in order to show that if higher amount than claimed in the plaint is found to be due then the said amount becomes value of subject-matter of the appeal. It may be noticed that all the cases referred to about pertained to accounts or redemption matter. However, it is interesting to note that in 20 I C the plaintiff's suit was for redemption of mortgaged property on payment of Rs.3,404. The Court, however, directed the redemption on payment of Rs. 6,987. It was held that the course of appeal was determined by the value of the appeal as brought and not by decision on the claim and, as such, the appeal from the decree lay to the Divisional Court and not to the Chief Court. Similarly in 1930 Lahore the appeal was .filed against the preliminary decree in a suit for accounts. It was held that in a suit for accounts the determination of the forum of app.-al from the preliminary decree depends upon the valuation of the suit for purpose of jurisdiction and the fact that the amount ultimately to be found may or may not exceed the valuation cannot disturb the course of appeal. The above discussion would show that the latest trend in the case, of the present kind is that in an appeal against a decree awarding a sum of money and future interest no court-fee is payable on pendente lite interest unless al specific ground of appeal is taken in respect of such an award.

8. The learned counsel for the appellant has made a statement at the bar that the appellant does not want to contest the award of interest pendente life in favour of respondent No. 1. In this view of the matter the amount in dispute would be Rs. 21,759-5-8 and the same would be the amount or value of the subject-matter in dispute in the appeal. This being the position the learned District Judge would be competent to decide the appeal against the impugned judgment and decree passed by the learned trial Court.

Since the appeal is liable to be disposed of by the learned District Judge, therefore, the file of the R. F. A. preferred by the appellant, will be sent to the learned District Judge, Lahore, for decision in accordance with law.

9. The result is that the order dated 27-6-1961 passed by the learned District Judge, Lahore, cannot be maintained and the same is hereby set aside. The F. A. O. against the said order is accepted.

S. A. H. Appeal accepted.

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