Imamsab Peeroop and Another vs Shreeshailappa and Another

The second appeal is by the defendants. They were defendants 2 and 3 respectively in OS No. 77 of 1968 on the file of the Munsiff and JMFC, Navalgund. Devalabai Kom Peersab Adig (Devalabai), respondent 2 herein, was the 1st defendant. That suit had been filed by the 1st respondent herein, Shreesailappa Basalingappa Hebbali (Hebbali). He had claimed a decree for recovery of money. The suit came to be decreed in part and against only the 1st defendant. Challenging that part of the decree disallowing the claim, Hebbali preferred an appeal in RA No. 37 of 1975 before the Civil Judge, Dharwar. By his judgment and decree dt. 18-10-1974 the Civil Judge has allowed the appeal, modified the decree of the Munsiff, and has granted a decree in a sum of Rs. 1,648-25 p. with costs and current interest at 6% against defendants 1 and 3. By that decree he had also created a charge on plaint sch. 1 (a) item guaranteeing the payment of the decreed sum It is this judgment of the Civil Judge that is under challenge in this appeal.

Plaint item 1 (a) land belonged to the 3rd defendant at the time when the suit was filed. The 1st defendant was cultivating the same as a tenant. She obtained Takkavi loan of Rs. 1,000 from the Government during 1959-60. The plaintiff and another Channabasappa were sureties to ber re: the said sum. It appears that the 1st defendant, having failed to pay the instalments due in time and the entire sum becoming due, was called upon to pay the same and since she had not paid, coercive steps appear to have been taken against sureties and, therefore, the plaintiff, being one of the sureties, paid that sum to the Government. There is no dispute re: this fact. The contention of the defendants in the trial Court was that the plaintiff had paid that amount, not out of his funds but out of the monies of the defendants he had with him in connection with some separate transaction. Both the Courts below, have not accepted this contention.

No doubt the learned counsel for the appellants, taking me through the records, argued that the Courts below had erred in not properly appreciating the facts on record and therefore that finding, though concurrent, was unsustainable. I am not persuaded to accept this say of the learned counsel. That concurrent finding is not liable to be dislodged. Counsel for the appellants made a further submission stating that, if at all, the real beneficiary was the 1st defendant and therefore there was no reason to saddle the 3rd defendant with the liability to pay the loan amount. True, the 3rd defendant should not be made personally liable to pay the said sum. It may be noted that, at the relevant time, it was the 3rd defendant who had title to the property though it was the 1st defendant who was in actual possession and cultivation of the same as a lessee. Benefits accrued to the land and improvements, if any, made therein by the loan amount will have, naturally, in the circumstances, gone to the benefit of the cultivator. Perhaps, it is likely that by filing Form No. 7 of the Karnataka Land Reforms Act, 1961, before the concerned Land Tribunal, the 1st defendant had obtained occupancy rights re: item No. 1 (a) of the plaint schedule land. If at all, the liability of the 3rd defendant will have to be confined to the interest he may still have in that land. To that extent the decree granted by the first appellate Court requires to be modified.

Counsel for the appellants raised another contention. It is his case that in the appeal, he had preferred in the first appellate Court, the plaintiff had challenged the decree of the trial Court in so far as it related to the disallowing of his claim for interest from the date of suit to the date of decree. According to the counsel for the appellant the plaintiff in the first appellate Court should have paid Court-fee on this portion of the disallowed interest (from the date of suit till the date of decree). He submitted that that forms part of the subject matter of the appeal and ad valorem Court fee paid ought to have been paid on this sum also. In this connection he places reliance on a decision of this Court in Venkatrathnamma v. K.R. Nanjappa, (1965) 1 Kar.L.J. 96. While construing the scope of Expln. 3 to S. 49 of the Mysore Court Fees and Suits Valuation Act, 1958 (the Act), this Court has observed that by virtue of that Explanation the meaning of the words ''subject matter'' has been enlarged including therein the interest payable subsequent to the institution of the suit. The learned Judge has further stated therein that that Explanation applies to the defendant''s appeal as much as to the plaintiff''s appeal. In this connection the following observations of the Nagpur High Court in Sheikh Rahman v. Balchand, AIR 1937 Nag. 6, also may be noted:

"Court fees are leviable on sums which can be ascertained with certainty, but not on those which 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, be must pay Court fees on the amount he claims up to the date on which he files the appeal but again, not beyond". (Head Noted)

If viewed, in the light of the ratio of the two decisions referred to above, it has to be stated that, if the plaintiff in the 1st appellate Court had claimed interest from the date of suit till he preferred the appeal, he had to pay Court fee thereon.

The contention of the counsel for the appellants is that on that sum Court-fee had not been paid in the 1st appellate Court, and, therefore, the plaintiff should be deemed to have relinquished his claim to that extent as provided under S. 18 of the Act.

Counsel for the respondents, on the other hand, submitted that no such objection had been taken in the first appellate Court and also in this Court, and, therefore, they should not be heard on this aspect of the matter. It is his further cast that if, in case, this Court finds that in the matter of payment of Court-fee there is any deficiency, this Court may direct the 1st appellate Court to draw a decree, as may be modified by this Court, on payment of Court-fee.

I am not inclined to accept the argument of the counsel for the appellants that the plaintiff should be deemed to have relinquished his drum to future interest from the date of suit, till the date of realisation. It is true that the plaintiff had paid the same Court fee as he had paid in the trial Court on the appeal memo presented to the 1st appellate Court. He should have paid Court fee on the interest calculating it from the date of suit on Rs. 1,285 25 p. till be presented the appeal memo in the 1st appellate Court to that extent the Court fee paid is deficient. But, S. 11(4)(b) of the Act provides that in such a case the Court shall direct the party liable to pay the deficit Court fee within such time as may be fixed by it. Under this provision appropriate orders are required to be made in the Instant case. For the foresaid reasons the decree granted by the 1st appellate Court is required to be modified and that would be indicated presently.

On merits, as already stated, this appeal is liable to be dismissed.

Therefore, this appeal is dismissed with this modification in the decree drawn by the 1st appellate Court. The suit is decreed in a sum of Rs. 1,648-25 p. with 6% current interest on the principal amount of Rs. 1,285-25 p. from the date of suit till the date of realisation. The 1st defendant is liable for this decree personality There shall be a charge for the decretal debt on the plaint item (a) and the charge shall cover the interest the 1st and the 3rd defendants may have in this item. The decree, as per the above terms, be drawn by this Court on the plaintiff (1st respondent herein) paying deficit Court, fee as indicated at para 6 above. Six weeks time is granted to him to pay the deficit Court fee.

In the circumstances of the case, parties are directed to bear their own costs in this appeal.