PACHAYAKKAL Vs. SHANMUGHAVELAYUDHASAMI GOPANNA MANNADIAR

JUDGEMENT

(1.) The petitioners in this group of civil revision petitions, which all relate to the same question of court-fee, were the legal representatives of the first defendant in three suits for redemption brought by the respondents in the Court of the District Munsiff of Coimbatore. The contentions of the respondents as plaintiffs in these suits were substantially that Act IV of 1938 applied and that they were entitled to possession without paying anything more. The contentions were accepted and a decree was passed directing the defendants to deliver possession of the properties to the respondents. Against this decree the petitioners filed appeals- in the Court of the District Judge of Coimbatore. In their memoranda of grounds of appeal the contention was raised in one form or another that the respondents were not entitled to redemption; but it was also pleaded that Act IV of 1938 did not apply, that the principal amount had not been fully discharged, and that in any case there were improvements, the value of which had to be paid to the appellants before delivery of possession could be given. The learned District Judge was of opinion that in spite of the form of the memorandum of appeal, the only substantial ground of appeal was the allegation that there were improvements the value of which had to be paid before possession could be delivered. The petitioners have paid court-fee in respect of the appeals according to the principal money secured by the instrument of mortgage.

(2.) Under the provisions of Section 7, Clause (ix) of the Court-Fees Act, court-fee is payable according to the principal money secured by the instrument of mortgage in suits against a mortgagee for the recovery of the property mortgaged. Section 7, Clause (ix) refers to suits, but it is established by a long line of decisions that in appeals also whether by the plaintiff or by the defendant, from decrees in suits for redemption provided that both the right to redeem and the amount payable are disputed, court-fee has to be paid only on the principal amount secured by the instrument of mortgage. There is no doubt, however, that where the only ground in an appeal from a decree in a suit for redemption is with regard to the amount payable, court-fee must be paid ad valorem on that amount under Art. 1 of Schedule I of the Act. In effect, therefore, the court-fee payable in these appeals depends on whether it is the substance or the form of the appeal which has to be considered in assessing the court-fee payable. The petitioners, in form at least there can be no doubt, do dispute in their memoranda of grounds of appeal both the right to redeem and the amount payable; but, as already stated, the learned District Judge was of opinion that the only substantial ground of appeal was the ground that the appellants were entitled to the value of improvements. In this view there can be no doubt that the learned District Judge was right. There is an omnibus paragraph towards the end of the grounds of appeal to the effect that the lower Court was wrong in failing to note that the suit is barred by estoppel, waiver and laches of plaintiffs- respondents; but it is plain from what has transpired in this Court that there is no arguable point taken in the grounds of appeal except that Act IV of 1938 did not apply and that there were improvements which had to be paid for. It is argued, indeed that the contention with regard to Act IV of 1938 is a contention which in effect amounts to a denial of the right to redemption. There is, however, no substance in this argument since the only result of a finding that Act IV of 1938 did not apply would be that something would have to be paid by the respondents before delivery to them could be effected; their right to redemption would remain. Again, it is argued that the petitioners did in effect contest the right to redemption because if their contentions were accepted, the suits would have to be dismissed. This is not correct. The respondents as plaintiffs claimed that by virtue of Act IV of 1938 nothing more remained to be paid but they asked that if this submission was not accepted, the amount to be paid should be fixed by the Court. Even, therefore, if the appeals were to be allowed, the result would not be the dismissal of the suits. The result would be that an account would be taken, a preliminary decree passed and time given to the respondents to pay the amount found to be due,

(3.) What then is the position if in spite of certain recitals in the memorandum of appeal the substantial ground of appeal is with regard to the amount paid? It was pressed on the learned District Judge that the question was concluded by the decision in Pathumma Umma v. Aliyamakkanakath Mohideen . In that case the substantial question in an appeal against a decree in a suit for possession was with regard to the payment of value of improvements but the question of title was raised. It was held that court-fee had only to be paid as on a suit for recovery of possession. In the course of his judgment, Srinivasa Aiyangar, J., observed that, though there was considerable force in the contention of the respondents that the subject- matter in dispute had reference only to the amount of compensation and that the question of title raised was a mere "camouflage" for escaping liability for court-fees, he was not prepared to say that it was not open to the parties to avail themselves of any "camouflage" that the law allows or does not forbid; and he expressed the opinion that it was not open to the Court to neglect the actual form of the appeal and determine the question of court-fees having regard to what might be said to be the substance of the claim. The learned District Judge, after referring to Pathumma Umma V/s. Aliyamakkanakath Mohideen and to the decision in Reference under Court-Fees Act, Section 5 (1899) I.L.R. 23 Mad. 84, referred to in it, observed that in the face of these authorities it was difficult not to accept the appellants contention. He did not however accept the contention because in his view a recent decision of a Full Bench of this Court in Ramaswami Aiyangar V/s. Rangachariar stood in his way. He says in effect that Srinivasa Aiyangar, J., had stated that it was the form and not the substance of the appeal that must be looked at in order to determine the question of court-fee whereas in Ramaswami Aiyangar V/s. Rangachariar , the Full Bench held that it was the substance and not the form that determined the court-fee to be paid. As the learned Chief Justice observed in that case; the plaintiff must pay court-fee in accordance with the relief which he is actually seeking. He cannot be allowed to evade payment by omitting to ask for relief when the success of his suit depends on relief being granted to him. The Court must look at the real nature of the suit and decide what the plaintiff is asking for. In my opinion the decision of the learned District Judge is right and, since the substance of the appeal is the amount to be paid before redemption can be claimed, I can have no doubt that the fee payable is an ad valorem fee under Art. 1 of Schedule I and not a fee based on the principal amount secured by the original mortgage.