Modi, J. - (1.) THIS is an appeal by the plaintiff's Bastimal and Javarimal against the judgement and decree of the Civil Judge, Jodhpur, dated 23rd April, 1952.
(2.) THE plaintiff's case was that they had given some gold and silver to the defendant Lehriram from time to time for making certain ornaments for the plaintiff as evidenced by their Khatas Ex. P. 1 and P. 2. THE defendant, however, failed to return 3/4 Mohar and 2 Rattis of gold and 109 Tolas of silver to the plaintiffs and put them off from time to time and eventually they filed the present suit for a sum of Rs. 83/- being the price of the outstanding gold and Rs. 204/- of silver. THE defendant admitted to have received gold from the plaintiffs for making certain ornaments but contended that he had accounted for the entire gold received from the plaintiffs wheres the latter had given short credit to him after deducting "ravatri" (a sort of allowance for alloy) which they were not justified in doing according to custom. As regards silver, the defendant entirely repudiated having received it but alternatively pleaded that in case the plaintiffs were successful in establishing their claim against him, he had made certain silver ornament out of it and that some silver along with making charges was due to the defendant from the plaintiffs'. The trial court decreed the plaintiffs suit for a sum of Rs. 287/ -. Both parties challenged that decree and the result was that the lower appellate court accepted the defendant's appeal and dismissed the plaintiff's suit as barred by time, and dismissed their cross-objection. This appeal has been filed by the plaintiff's from the above decree. A preliminary objection was raised by learned counsel on behalf of the defendant that this second appeal was not entertainable by virtue of the provisions of sec. 102 of the Code of Civil Procedure, as the suit out of which this appeal has arisen was of a nature cognigable by the cort of small causes and the amount of the original suit did not exceed Rs. 500/ -. It may be mentioned at the very otset that when the suit was brought on 25th October, 1949, in the court of the Munsiff, Jodhpur, the Marwar Small Cause shall take cognizance of certain suits which were specified in the seven clauses of that section, and ther valuation whereof did not exceed Rs. 500/ -. These seven categories were specified as below : - (1) for money or goods lent. (2) for the price of goods sold and delivered. (3) for the price of food or drink or lodging. (4) for the hire of animals, vehicles or household furniture. (5) for the wages of household servant, artizan or labours. (6) for arrears of house rent. (7) by a surety against the principal debtor. Sec. 16 of the Act provides that a suit cognizable by a court of Small Cause shall not be tried by any other court having jurisdiction within the local limits of the jurisdiction of the Court of Small Cause by which the suit is triable. It is quite clear, therefore, that the suit at the time it was instituted was not of the nature of a small cause. It was contended before me, however, that although the suit was not of a small cause nature at the time it was filed, it subsequently assumed that character by virtue of the fact that the Rajas-than Small Cause Courts Ordinance, 1950, (Ordinance No. VIII of 1950) had come into force, and according to the scheme of that Ordinance, the suit in question became one of a small cause nature. Sec. 13 of the Rajas-than Small Cause Courts Ordinance provides in effect that all suits of a civil nature of which the value does not exceed Rs 500/- and which are not specified in the Schedule annexed thereto shall be tried by a Court of Small Causes, and by sec. 14 of the same Ordinance the jurisdiction of other Civil Courts to try such suits is barred. It is admitted that the present suit falls outside the category of the suits specified in the Schedule. That being so, it is contended that when the present appeal was filed on 23rd July, 1952, in this Court, sec. 102 of the Code of Civil Procedure would make the present appeal incompetent. This argument, in my judgment is fallacious. The right of appeal is a cardinal right, and there is abundant authority for the proposition that it is to be regulated by the state of law when the suit out of which it arises was commenced, and nothing that happens later can take such a right away except by express enactment or necessary intendment. Reference may be made in support of this view to Colonial Sugar Refining Company vs. Irving (/), Delhi Cloth Mills vs. I. T. Commissioner (2) and H. K. Dada (India) Ltd. vs. State of M. P. (3 ). Their Lordships of the Supreme Court (3) have said that "a right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in and before a decision is given by, the inferior court. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication'. It is clear, therefore, that the right of appeal in the present case accrued to the plaintiffs when they filed their suit in 1949 when the Marwar Small Cause Court Act was in force, and according to that Act, the present suit was not a suit of a small cause nature. The plaintiffs were entitled under the law, as it then existed, to have a right of second appeal and 1 cannot possibly accede to the contention that that right was intended to be taken away by anything that was done subsequent thereto. The amendment in the law relating to small cause suits brought into operation by the introduction of the Rajas-than Small Cause Courts Ordinance, 1950, could not be given a retrospective effect so as to take away the right of appeal in the present case, which had vested in the plaintiffs when they instituted their suit. The conclusion is, to my mind, irresistible that that being the true position in law, this second appeal cannot be held to be incompetent. Having disposed of the preliminary objection, I may now state the findings of fact as found by the courts below; as such findings cannot be challenged in this second appeal. Both courts have come to the conclusion that Ex. P-l upon which the present suit is founded was executed by the defendant, and this finding is binding upon me in second appeal. So also the question of the deduction of Ravatri is of no materiality for the purposes of the present appeal, as the finding of the lower courts is against the defendant on that point. This appeal was, therefore, rightly assumed on the question of limitation mainly. Learned counsel for the plaintiffs strenuously contended that the court below had gone completely wrong in dismissing their suit as barred by time; while learned counsel for the defendant vehemently supported the dismissal. On the question, of limitation, it has been held by both the courts below that Art. 49 of the Limitation Act applies. That Article is in these terms : - "49. For other specific movable pro-party, or for compensation for wrongfully taking or injuring or wrongfully detaining the same. Three years. When the property is wrongfully taken or injured or when the detainer's possession becomes unlawful. " The question to consider in this connection is, when the defendant's possession became unlawful. Now, the possession of the defendant would become unlawful only when he refuses to return the property in question on a demand having been made for its return. When I asked learned counsel for the respondent when the defendant refused to re-deliver the gold and silver entrusted to him for the making of ornaments, he was unable to give any cogent reply to that question. His only contention was that the defendant never refused to do so and thereafter he argued that the plaintiffs had no cause of action against the defendant and their suit was premature. A perusal of the plaint shows that all that the plaintiffs stated there was that they had many a time asked the defendant to return their gold and silver but the latter put them off. The plaintiffs never said that the defendant had refused their demand. When the plaintiffs came into the witness box, then also they said nothing to indicate that their demand had been refused by the defendant any time. No cross-examination was directed against the plaintiffs on behalf of the defendant on that ground. So far as the defendant himself is concerned, he totally obtained from entering the box in support of his case. I have no doubt that "putting off, or postponement to comply with a demand" cannot by itself amount to "refusal" ; and if there was no refusal, it must follow as a necessary consequence that the possession of the defendant never became anything like wrongful detention. It continued to permissive as before The operation of Art. 49 can be attracted only where the property in a case like the present is unlawfully detained, and when that cannot be shown, I have no doubt that the only reasonable conclusion to which it is possible to come is that the possession of the defendant never become unlawful up to the date the plaintiffs brought their suit, and in that view of the matter; the operation of Art. 49 never commenced. It was argued on behalf of the defendant that it was the duty of the plaintiffs to have stated in their plaint how they got over the bar of limitation, and a fairly elaborate argument was addressed to me on that aspect of the case. I do not propose to refer to is in detail for the simple reason that so far as the plaintiffs were concerned, their case never was and cannot of taken to be that their claim was barred by lime and that therefore, it was not necessary for them to state in their plaint how they proposed to get over that bar. It was the defendant who raised the plea of limitation in this case and I may further state that it was a very vague and general plea. An issue was framed on the point in the trial court, and the burden thereof was placed on the defendant himself. He did nothing to discharge that burden, as he led no evidence whatsoever nor did he take the trouble of examining himself in support of his plea. In these circumstances, it was for the defendant to establish that the suit was barred by time I am not prepared to accept the argument that the true rule is that in every case the burden of proving that the suit is within time is on the plaintiff. It depends upon the circumstances of each case. It would undoubtedly lie on the plaintiff in a case where his plaint Prima facie shows that the suit was barred by time, and in such a case, he must state the facts which should enable him to get over the bar of limitation, and if he does not do so his claim must fail. But there are other cases, like the present one, where there is nothing to show that the plaintiff's case was Prima facie barred by time, and in such cases, it is for the defendant to raise the plea of limitation if he relies on it. This is exactly what has happened in the present case. I am, therefore, of opinion that the lower appellate court was wrong When it came to the conclusion that the onus of proving the issue of limitation was wrongly placed on the defendant. If was for the defendant in the circumstances of this case to establish the plea of limitation. But even if it be accepted for the sake of argument that the burden of proof was wrongly placed, the defendant had accepted that burden without demur. It is too late for him now to complain that the burden should have been placed on the plaintiffs. In these circumstances, I am entirely unable to concur in the conclusion of the court below that the plaintiff's suit was Prima facie barred by time or that it should be dismissed on that ground. As a matter of fact, the lower appellate court itself stated that limitation under Art. 49 commenced from the date when the goods were wrongfully detained by the defendant and that the plaintiffs did not mention any such date in their plaint or in their evidence, nor did the defendant mention it in his wri-tten statement, and, therefore, that court correctly found that it could not come to any specific date from which the possession of the defendant over the gold and silver ornaments was wrongful. Having stated all that the court then swerved to the conclusion that the present suit was Prima facie time barred, a conclusion which cannot in my opinion be sustained on the reasoning of the learned Judge himself or in law. I am of opinion, therefore, that the operation of Art. 49 of the Limitation Act was not attracted at all until the plaintiffs brought this suit and, therefore, there was no question of its being thrown out on that ground, nor has the defendant brought any material on this record to show otherwise that the suit was barred by limitation. In these circumstances, I hold that the decree of the court below cannot be sustained and must be set aside. Learned counsel for the respondent argued, however, that as there was no refusal on the part of the defendant, the plaintiffs had no cause of action at all and, therefore, the suit was pre-mature. This ground was urged or the first time before this court and would, therefore, be inadmissible at this stage. Apart from that, however, I am of opinion that it is entirely without substance. The simple reason that if the view of the learned counsel is accepted, a defendant in a case like this may never refuse and yet never return the goods or the value thereof to the person to whom the goods belong and still claim when the suit for the recovery thereof or for compensation is brought, that such a suit is pre-mature. This contention is, therefore, in my opinion, only to be stated to be rejected. It was next argued on behalf of the plaintiffs appellants that they should be allowed Pendente lite and future interest on the amount of the decree awarded to them. It was contended, however, by learned counsel for the defendant that no such interest can be allowed in the present case as the plaintiffs have not paid any court-fee on the amount of interest claimed. The question, therefore, is whether in the absence of any court-fee having been paid on this branch of relief, the plaintiffs are entitled to get Pendente lite and future interest. This question is not free from difficulty, and it appears that there is a considerable divergence of judicial opinion on it. I may notice a few cases in this connection. In Damodar vs. Hardeo (1), it was held by a learned single Judge of the Allahabad High Court that: - "where the appellant claims among other sums of money a definitely ascertainable sum by way of pendente lite interest which is disallowed by the trial court, the sum must be held to be part of "amount or value of the subject-matter in dispute"and ad valorem court-fee is payable under Sch. 1, Art. 1, on the sum claimed as Pendent lite interest. " In Bhagshah vs. Labha Mal (2), it was held by a Division Bench of the Lahore High Court that: - "court-fee is necessary on the claim for interest from that of suit to date of realization made in appeal, either ad valorem the sum up to the date of the appeal or at least a court-fee of Rs. 10/-as provided by Art. 17 (6) of the court-Act. " In Sheikh Rahman vs. Balchand (3), learned single Judge of the Nagpur High Court held that; - "court-fees are leviable on sum which can be ascertained with certainty, but not on those with cannot, Consequently, as a general rule, court-fees on a plaint are payable on interest claimed up to date of suit, but not beyond. If, however, the suit is dismissed and the plaintiff still wants future interest in appeal, he must pay court-fees on the amount he claims up to the date on which files the appeal but again, not beyond. " In Jagannath Prasad vs. Bhala Prasad Singh (4), a suit was decree but Pendente lite interest was not allowed, and an appeal was filed relating to Pendente lite interest alone. It was held that ad valorem court-fee was payable on the amount of Pendente lite interest. It may be pointed out that in this case the appeal was directed only to Pendente lite and future interest and although it was held that an ad valorem court-fee was payable on the amount claimed as Pendente lite interest as it was an ascertained sum, the view was apparently taken that in respect of future interest no such fee was payable. Then as regards the view on the other side of the line, I may first refer to Vidhal Hari Athavle vs. Govind Vasudeo Thosar (5 ). It was held in a somewhat short judgment by a Division Bench of the Bombay High Court that: - "no additional stamp is required on account of the claim for interest form the date of the institution of the suit until payment. " The same view was taken in Madras in Srinivasa Row vs. Ramaswami Chetti (6 ).
(3.) IN Sadhu Saran Rai vs. Barhamdeo Lall (7), the Patna High Court held that: - "there is no provision of law authorising the assessment of additional court-fee by reason of the accrual of interest Pendente lite, and that the plaintiff was rightly called upon to pay only the amount claimed in the plaint. " In Mithoo Lal vs. Mr. Chameli (8) a Division Bench of the Allahabad High Court laid down that: - "where a suit for profits is decreed by the trial court for a certain sum of money with interest at the rate of 12 per cent per annum up to the date of the suit and interest is award at the same rate till the date of the decree, and thereafter at 6 percent and the defendant appeals impugning the correctness of the decree passed by the court of first instance and no ground is specifically directed against the award of interest before suit or Pendente lite, the, subject-matter of the appeal should be considered to be the principal amount of the suit and the interest up to the date of the suit. " It was further observed that: - "the appellant need not pay court-fee on the amount of interest accruing at the rate awarded by the Court between the date of, the suit and the date of the decree. It is obvious from a review of the case law set out above that there is not only an acute divergence of opinion among the various High Courts but a good deal of confusion appears to me to exist as regards the precise state of law on the point involved in the present case. In this state of authorities, let us look at sec 34 of the Code of Civil Procedure under which such interest is permissible. It is well established that the grant of interest and the rate at which it may be granted from the date of suit up to the date of decree and further from the date of decree untill realization, are matters which rest wholly in the discretion of the court. It is clear that when a plaint is filed, these sums are not ascertainable and, therefore, no court-fee thereon appears necessary to be paid in the suit. The position as regards appeal is undoubtedly far more complicated. Even as regards appeals. I think that so far as future interest is concerned, it is not possible to value the claim for such interest and, therefore, no court-fee need be paid thereon as a general rule. An exceptional case may arise where an appeal has been filed specifically in the matter of future interest and in , such a case I am of opinion that a fixed court-fee under clause (6) of Art. 17 of the Second Schedule of the Court-fees Act may well be paid. As regards Pendente lite interest. I am further of opinion that no court fee thereon need be paid in a case like the present where the plaintiff appeals from the entire dismissal of the suit. The award of Pendente lite interest is, as stated above, a matter which is entirely in the discretion of the court and cannot be claimed as of right and I am disposed to think that such relief need not necessarily be claimed specifically as a general rule except in cases where an appeal is filed only with respect to the claim for Pendente lite interest, or where such interest is awarded by the terms of a decree, and it is sought to be attacked in appeal. The principle, therefore, which appears to emerge from the above discussion seems to be that Pendente lite or future interest is, generally speaking, neither a matter of contract nor of a definite rule of law, and as the granting thereof or the rate at which it may be awarded is entirely a matter within the discretion of the court, it is not ascertainable, and in any case, where the plaintiff appeals from the entire dismissal of his suit, it is not at all necessary for him to claim pending or future interest specifically, as such relief is more or less consequential or incidental. This principle is subject to certain exceptions viz. , where an appeal is solely directed to the obtaining of Pendente lite or future interest or where the decree of the lower court definitely contains a direction as to such interest and it is endeavoured to get rid of it in appeal, in which cases court-fee may have to be paid on the amount of such interest where it can be ascertained Ad valorem and where it cannot be ascertained, under Art. 17 (6) of the Court-fees Act. Applying the above principles to the facts and circumstances of the present case, I hold that as the plaintiffs have appealed from a decree which wholly dismissed their suit, it was not necessary for them to pay court-fee on the Pendente lite and future interest claimed by them. The next question to decide is whether such interest should be allowed in the circumstances of the present case. It is clear that the defendant raised false defences at the trial and his object obviously was to protract litigation and, therefore, I am unable to see any valid reason why the plaintiffs should not be allowed interest from the date of suit until realization. I accordingly allow such interest on the decretal amount at 6 percent per annum, and consider that this would be sufficient in the circumstances of the present case. The result is that I allow this appeal, set aside the judgment and decree of the court below and decree the plaintiff's suit for a sum of Rs. 287/ -. The plaintiffs will be entitled to interest at the rate of 6 per cent per annum on the aforesaid amount from the date of the suit until realization. The plaintiffs will further be entitled to their costs in all the courts. . ;