Decided on January 29,1952



Rai, J. - (1.) This appeal by the plaintiffs is directed against the order of the Court of appeal below returning the memorandum of appeal filed before that Court to be presented before a proper Court.
(2.) The plaintiffs had filed a suit in the Court of the Additional Subordinate Judge, 2nd Court, Patna, for partition of their one-fourth share in the properties in suit. The suit was valued for purposes of jurisdiction at Rs. 7,929/12/- as appears from paragraph 11 of the plaint which is as follows: "That the property in suit is valued at Rs. 7,929/12/- for purposes of jurisdiction; but as the claim is for partition, a fixed court-fee of Rs. 20/10/- is paid." It appears that, at the time of hearing of the partition suit, an objection was raised on behalf of the defendant No. 1 that, as the plaintiffs had failed to prove their possession over the properties in suit, it was bound to fail until the plaintiffs had paid 'ad valorem' court-fee on their one-fourth share in the properties. Arguments were concluded on the 21st of February 1950, and the suit was postponed to the 1st of March 1950, for judgment. On the 22nd of February 1950, the plaintiffs filed a petition stating that they were prepared to pay 'ad valorem' court-fee over one-fourth share of the properties in dispute, if the Court be of opinion that they were not in possession of the same. The trial Court thereupon passed the following order : "I think the plaintiff has paid insufficient court-fees in this case. He is directed to pay ad valorem court-fees on a sum of Rs. 1,982/7/- by 8-3-1950. Inform. The judgment will be delivered on that date after the above court-fee is paid." Thereafter, the plaintiffs paid the deficit court-fee. On the 10th of March 1950, judgment was delivered, and the suit was dismissed. Thereafter, the plaintiffs filed an appeal before the District Judge of Patna who was of opinion that the appeal should have been presented before the High Court, and not before him, on the ground that the valuation of Rs. 7,929/12/- given in the plaint for purposes of jurisdiction would be the basis for determining the forum of appeal.
(3.) The learned Advocate for the appellants contended that the order of the Court of Appeal below was erroneous. In support or his contention, he relied on the cases of 'DUKHI SINGH v. HARIHAR SHAH', 5 Pat L J 540 and 'SHEVANTIBAI v. JANARDHAN RAGHUNATH', 71 Ind App 142 (PC). Both these cases, in my opinion, are distinguishable. In 5 Pat L J 540, the plaintiff had valued the suit for purposes of jurisdiction at Rs. 1,915/6/2 representing the value of his own shar in the properties in suit. The trial Court had fixed the valuation of the suit for purposes of court-fee and jurisdiction at Rs. 1,700/- which was one-thirteenth of the value of the entire properties which were the subject-matter of the suit. The trial Court had in that suit issued a temporary injunction against the defendant No. 1 of that suit restraining him from proceeding with the execution of the decree challenged in that suit. Defendant No. 1 had filed a miscellaneous appeal before the High Court against that order. A preliminary objection was raised by the plaintiff-respondent that a miscellaneous appeal should have been filed before the lower Court and not before the High Court. The objection was upheld mainly on the ground that the order of the trial Court fixing the value of that suit for purposes of jurisdiction, which had not been challenged and had become final, would determine the forum of appeal.;

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