T.V. Sundaram Ayyangar and Sons, Ltd. and Others vs The Province of Madras and Another

Viswanatha Sastri, J.—The question raised in these civil revision petitions relates to the proper court-fee payable by the plaintiff on the

plaints in three suits filed in the Court of the Subordinate Judge of Mathurai The plaintiff is a company which owns a fleet of motor vehicles, The

plaintiff''s case is that it entrusted the sums necessary for the payment of licence fees and the obtaining of licences for its vehicles to its agent,

defendant 2. with a direction that the money should be paid to defendant 1, the Government, and licences should be obtained. Receipts for the

payment of the fees as well as the licences in respect, of the vehicles purporting to be issued by the duly authorised officer of the Government were

handed over to the plaintiff by the agent The plaintiff''s further case is that the Government, defendant 1, under threat of prosecution for

nonpayment or deficient payment of the licence fees again collected considerable sums of money from the plaintiff. The suits have been laid for the

recovery of these amounts alleged to have been paid by the plaintiff twice over, once through its agent, defendant 2. and once directly by the

plaintiff in pursuance of a demand made by defendant 1. The Subordinate Judge observes that there has been some mal-practice on the part of the

plaintiff''s agent or the servants of the Government or both. No objection as regards the deficiency of the court-fee paid was taken in the written

statement filed by the Government but the learned Subordinate Judge on his own initiative, raised an issue as regards the sufficiency of the court,

fee paid and directed the plaintiff to pay ad valo-rein court-fee on the amount sought to be recovered from defendant 1 the Government, and again

another ad valorem court-fee on the same amount in so far as it was sought to be recovered alternatively from defendant 2. The plaintiff contends

that the order of the Court below is erroneous and the direction calling upon him to amend his plaint and pay ad valorem court-fee twice over on

the single sum for which a decree is sought is illegal.

The question turns on the correct inter, prostration of Section 17 of the Court-fees Act which runs thus:

Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the

fees to which the plaints or memoranda of appeal in suits embracing separately each of such subjects would be liable under this Act.

Now the words ""two or more distinct subjects"" In Section 17 do not admit of a precise definition applicable to all cases. Where reliefs are claimed

in the alternative with reference to the same facts and in respect of the same sum of money against two defendants, the suit cannot be said to

embrace two or more distinct subjects. The relief claimed is one and the same, namely, the recovery of the money of which the plaintiff had been

wrongfully deprived and the amount for which a decree is sought is one and the same though the claim is sought to be made out on alternative

grounds against one or the other of the two defendants. If defendant 1 is found liable then on that very finding, defendant a has to be exonerated.

Alternatively, if it is proved that the money alleged to have been paid to defendant 3 was in fact paid by the plaintiff but was not transmitted to

defendant 1 and defendant 1 is exonerated from liability, then on that very ground defendant 2 must be made liable to repay the money paid to him

and not duly accounted for. The causes of action against defendants 1 and 2 are different, but as observed by the Fall Bench in In re Paramewsara

Pattar, 54 Mad. 1 : A. I. R. 1930 Mad 833 , the teat u/s 17 is not whether the causes of action are distinct. Nor is it a conclusive teat to apply that

different suits could have been brought separately against each of the defendants in respect of the relief claim-ed in this suit. The decision of the

learned Chief Justice in Ramasami v. Krishnayya, 1948- 2 M. L. J. 104 : A. I. R. 1949 Mad. 125 does no more than point out that the fact that

the causes of action are different and different suits could be filed in respect of them though not conclusive, is relevant to a consideration of the

question whether a suit embraces two or more different subjects; see also Rajah of Vizianagaram Vs. Government of Kerala, . It was clearly

necessary for the plaintiff to get an adjudication as regards his right to a return of the sum claimed by it either from defendant 1 or from defendant 2

in the presence of both the defendants. It is for cases like the present that Order 1, Rule 7, Civil P. C., enacts that:

Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in order that the

question as to which of the defendants is liable, and to what extent, may be determined as between all parties.

Otherwise if a separate suit were brought against each of the defendants the finding in one suit may not conclude the issue in the other suit and there

might possibly be contradictory findings of the same Court on the same issue in two different suits. It is to avoid this anomalous result that Order 1,

Rule 7 permits the joinder of two defendants against whom relief is claimed in the alternative in order that the question as to which of the

defendants is liable and to what extent, may be determined not only as between the plaintiff on the one hand and the defendants on the other, but

as between the defendants inter se. Further under the illustration to Order 41, Rule 33, Civil P. C., whore the plaintiff sues A and B and claims

relief in the alternative against A or B and the Court passes decree against A who takes the matter in appeal impleading the plaintiff and B, it is

open to the appellate Court to exonerate A, the appellant, and pass a decree in favour of the plaintiff against) B, the co-respondent. Only one

court-fee is paid on the memorandum of appeal and the plaintiff gets a decree against A or B, whoever is ultimately found liable to him. [3] I

consider, therefore, that it cannot be said in the present case that the suits in the Court below embraced two or more distinct subjects within the

meaning of Section 17, Court-fees Act. I set aside the order of the learned Subordinate Judge in the three suits directing payment of additional

court-fee. The civil revision petitions will, therefore, be allowed but having regard to the fact that the Government did not take any objection on the

score of deficient court-fee, there will be no order as to costs.