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Regular First Appeal No. 67 of 1956, decided on 3rd October 1956, from the decree of Akhtar Hassan, Additional Civil Judge, IV Class, Jhelum, dated the 2nd April 1956.
Forum‑Preliminary decree directing taking of accounts in suit for dissolution of Partnership and rendition of accounts‑‑Forum determined by value of suit fixed in plaint‑- Court Fees Act (VII of 1870), S.7 (iv) (f).
In an appeal by a defendant in a suit for dissolution of partnership and rendition of accounts against a preliminary decree, the forum of appeal is determined by the value of the suit fixed by the plaintiff in his plaint. That value cannot be altered simply because the trial Court, in its judgment, deals with an item which exceeds such value.
Megh Rai v. Rupchand Uttamchand I L R 1947 Lah. 47 rel.
Kalu Ram v. Hanwant Ram I L R 15 Lah. 151 ref.
Malik Muhammad Hussain and Muhammad Bashir for Appellant.
Mian Muhammad Shafi and Ghias Muhammad for Respondent.
In a suit for dissolution of partner ship and rendition of accounts instituted by Abdul Haq Sethi against Muhammad Zarif, Mr. Akhtar Hussain, Additional Civil Judge Fourth Class. Jhelum, passed a preliminary decree, the operative part of which was as follows:--
" It is ordered that the plaintiff is granted preliminary decree to the effect that he is entitled to get and liable to pay fifty per cent of the profits and losses of the firm, as the case may be, for period falling between 23rd of May 1953 till the 26th of April 1954, when the partnership stood dissolved. I further order that the accounts be taken as directed above."
Against this preliminary decree the defendant presented two appeals, one in the Court of the Senior Civil Judge, Jhelum, and the other in this Court. The appeal in this Court, which was marked as Regular First Appeal, was ordered on the 1st of May 1956, to be heard by a Division Bench. On the 18th of June 1956, an application (Civil Miscellaneous No. 348/C of 1956) was presented to this Court wherein it was said that as the plaintiff had valued his suit in the trial Court at Rs. 140 for the purposes of jurisdiction, the appeal against the preliminary decree passed by the trial judge could not be brought in this Court. It was prayed in this application that the question whether or not the appeal lay to this Court should be determined before the parties underwent expenses with regard to printing and other matters connected with the appeal in this Court. It is as a result of this petition that this appeal has come up for hearing for determination of the question whether or not the appeal lay to this Court.
The reason why Malik Muhammad Hussain, learned counsel for the appellant, instituted an appeal in this Court was that while discussing one of the issues the learned trial judge found that the plaintiff had contributed a sum of Rs. 38,250 towards the funds of the firm. The learned counsel urged that notwithstanding the fact that the jurisdiction‑value of the suit as fixed by the plaintiff was Rs. 140, one of the points that will require determination in the appeal against the preliminary decree would be whether or not the finding of the learned trial judge with regard to the plaintiff having contributed Rs. 38,250 towards the funds of the firm was correct and, therefore, the appeal lay in this Court and not in the Court of the Senior Civil Judge. To this contention the learned counsel for the respondent replied that the mere fact that the learned trial judge had remarked in his judgment that the plaintiff had contributed over Rs. 38,000 towards the funds of the firm, did not alter the jurisdiction‑value of the suit which for the purposes of appeal against the preliminary decree continued to be Rs. 140.
The provision of law which determines the forum of appeal is section 39 of the Punjab Courts Act, the relevant part of which reads as follows :‑
" 39 (1) Save as aforesaid an appeal from a decree or order of a Civil judge shall lie‑
(a) to the District judge where the value of the original suit in which the decree or order was made did not exceed Rs. 5,000 ; and
(b) to the High Court in any other case,"
Subsection (4) of section 3 of the Punjab Courts Act lays down that the expression "value" used with reference to a suit means the amount or value of the subject‑matter of the suit. Under section 8 of the Suits Valuation Act, read with section 7 (iv) (f) of the Court‑Fees Act, the value of a suit of the present kind can be fixed by the plaintiff who has to pay Court fee on such value. If the final decree grants the plaintiff an amount higher than that which he fixed as the value of the suit for the purposes of jurisdiction and Court fee, he will be entitled to the benefits' of the decree only if he pays Court‑fee on the amount decreed. The law is well settled that the jurisdiction‑value of a suit of the present kind will be deemed to have been enhanced if the final decree grants an amount higher than that mentioned in the suit and one need only refer in this connection to a Full Bench decision of five judges of the Lahore High Court in Kalu Ram v. Hanwant Ram (I L R 15:Lah. 151) The Full Bench held that where a plaintiff: instituted a suit for dissolution of partnership and rendition of accounts and under section 7 (iv) (f) of the Court‑Fees Act and section 8 of the Suits Valuation Act fixed the value of the suit for the purposes of jurisdiction and Court‑fee tentatively at Rs. 8,000 and a final decree for Rs. 3,375 was passed in favour of the plaintiff, the defendant cannot institute an appeal before the District judge, valuing his appeal at Rs. 3 375 and the appeal whether preferred by the defendant or the plaintiff lies to the High Court. because the value of the original suit was fixed at Rs. 8,000. In the course of the judgment it was remarked as follows :
" From what has been stated above it follows clearly that in suits for recovery of money on unsettled accounts the value as determinable for computation of Court‑fee is the value as given in the plaint unless it is enhanced by an adjudication of the Court that a higher sum is due, in which case it is this latter sum which becomes the value on which Court‑fee is computed and which, therefore, is also the proper value for purposes of jurisdiction. But there is no variation of the value as originally fixed in the plaint if the amount found due is less than that claimed or if the suit is dismissed, the plaintiff being held entitled to nothing. In the last mentioned classes of cases the value as originally fixed continues to be the value for computation of Court‑fee and consequently is also the value for purposes of jurisdiction, Applying this rule to the present case, it must be held that the value of the subject‑matter of the original suit is Rs. 8,000 as stated in the plaint, and not Rs. 3,375/4/6 for which the trial judge had passed a decree and, therefore, under section 39 (1) of the Punjab Courts Act appeals against that decree, whether instituted by the plaintiff for enhancement of the decretal amount or by the defendant for the total dismissal of the suit, lie to this Court."
The case that the Full Bench was dealing with was one of appeal from the final decree in a suit for dissolution of partnership and rendition of accounts and the decision thereon cannot be held to apply, except in so far as the general remarks are concerned, to a case of an appeal against the, preliminary decree.
In Megh Raj v. Rupchand Uttamchand (I L R 1947 Lah. 47) the question of law referred to the Full Bench was as follows :‑.
" Where in a suit for dissolution of partnership, rendition of accounts and recovery of such amounts as may be found due, the plaintiff under section 7 (iv) (f) of the Court‑Fees Act values the relief sought in the plaint at a certain figure and a preliminary decree is passed dissolving the partnership, fixing the shares of the parties and directing accounts to be taken and the defendant appeals from the decree, is it open to the defendant to fix the value of the appeal at a different figure for purposes of Court‑fee under section 7 f Iv) ( f ) or any other provision of the Court Fees Act "
The Full Bench answered this question in the negative and held that in an appeal by a defendant in a suit for dissolution of partnership and rendition of accounts against a preliminary decree, the value of the appeal of the defendant for the purpose of Court‑fee must be the same as the value of the suit fixed by the defendant. As in a suit of the present kind A the value of the suit for the purpose of jurisdiction has to be the same as the value for the purposes of Court‑fee, it follows that the value of the suit in the original Court for the purpose of section 39 of the Punjab Courts Act is the same as was fixed by the plaintiff and it cannot be altered by the defendant.
The argument of the learned counsel for the appellant that because the trial Judge had dealt with an item of Rs. 38,000 odd and that finding was to be questioned in the appeal, the appeal must lie to the High Court, as the amount involved exceeds Rs. 5,000, has, in my opinion, no force. It is the amount decreed by, the final decree which, if it were in excess of the value of the suit as originally fixed, could alter the value of they suit for the purpose of section 39 of the Punjab Courts Act and that value cannot be altered simply because of the fact that the Court deals with an item which exceeds the sum mentioned as the value of the suit in the plaint. The fear of the learned counsel for the appellant that because the trial Judge had dealt with an amount of Rs. 38,000 odd in the judgment, the Senior Civil judge, before whom one of the two appeals had been filed, would feel himself incompetent to deal with the appeal is, in my view, entirely baseless, because if the Court from whose decree an appeal is filed could deal with that item, I do not see why the appellate Court should feel that it cannot. All the questions that can be agitated in an appeal against a preliminary decree can be agitated before the Senior Civil judge who will no doubt give his own findings on all the questions that are properly raised before him.
In view of what I have said above, I hold that the appeal did not lie to this Court and dismiss the appeal presented to this Court with costs, but direct that counsel's fee shall not exceed Rs. 200.
A.H Appeal dismissed.
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