Umayal Achi vs Lakshmi Achi and Ors.

Varadachariar, J.—The petitioner was the appellant in an appeal which was before this Court (Suraj Narain Anand v. The North-West

Frontier Province). On 4th December 1941 this Court disposed of that appeal holding that the plaintiff was entitled to a declaration that he had not

been effectively dismissed from office, and that he was entitled to his costs in this Court. As the suit had not been tried on the merits, the Court had

to remit the case to the Judicial Commissioner''s Court for such ""further directions as the circumstances of the case may require""; it was also left to

the Judicial Commissioner''s Court to deal with the costs of the proceedings in the Courts below. On receipt of this Court''s judgment, the Judicial

Commissioner''s Court remanded the case to the trial Court to hear and determine the plaintiff''s claim to arrears of pay. The trial Court passed a

decree for Rs. 1648 for arrears of pay and gave certain directions as to payment of costs, court-fee etc. The plaintiff carried the matter again on

appeal to the Judicial Commissioner''s Court and that Court increased by a few hundreds the amount awarded to the plaintiff. It has made clearer

and more specific the directions in the decree as to costs and payment of court-fee. The petitioner has now filed in this Court what purports to be

an application under O. 43 of the Federal Court Rules and he therein asks this Court to vary the decree of the Judicial Commissioner''s Court in

certain particulars. This, he prays, should be done in exercise of the inherent powers of this Court. We are unable to hold that this Court has any

jurisdiction to entertain this application. It is true that when this Court is properly seized of an appeal on a certificate granted under S. 205 of the

Constitution Act, it will also have jurisdiction to deal with other questions arising in the case; and in dealing with an appeal properly before it, it may

have certain inherent powers. But before these powers can be exercised there must be an appeal validity instituted in this Court. In the present

case, there was no doubt at one time an appeal before us properly preferred under S. 205; but that appeal has been finally disposed of so far as

this Court was concerned. The petitioners suggested that the Judicial Commissioner''s Court has not properly understood or given effect to the

directions contained in the judgment of this Court. We see no basis for this suggestion. Any complaint against the decree passed by the Judicial

Commissioner''s Court after the remand can, in our opinion, be entertained by this Court only on an independent appeal under S. 205 of the

Constitution Act; and such an appeal must satisfy the requirements of that section. In this case no certificate under that section has been given or

obtained. We may also add that it has not been shown to us that any constitutional question arises at this stage at all.

The petitioner''s principal objections to the decree of the Judicial Commissioner''s Court relate-

(1) to the amount awarded to him for arrears of pay; and

(2) to the directions as to costs and payment of court-fee.

There appears to be some force in his complaint that arrears of pay should have been awarded to him not merely up to the date of the institution

of the suit, but to the date of a valid order of dismissal. We are however not in a position to say whether this point was urged before the Judicial

Commissioner or why the award has been so limited. As the claim relates to a period subsequent to the institution of the suit the petitioner may

have a separate remedy in respect of the same. But this involves no constitutional question and we do not see how this Court is entitled to deal with

it at this stage. The direction as to costs is within the discretion of the Court and the direction as to the payment of the court fee has not even been

shown to be improper except as to the method of calculating the amount payable. Though it is not open to this Court to give the plaintiff any relief

on the question of court-fee, we think it right to point out that the calculation of the court-fee, so far as we are able to gather from the papers

before us, is open to exception. The plaint claimed a declaration and a decree for damages for Rs. 75,000; alternatively, a claim for arrears of pay

was made. In the Courts below court fee seems to have been calculated on the footing that the case fell under S. 17 of the Court Fees Act as one

embracing two distinct causes of action. On a correct reading of the plaint, it seems to us that the case was one in which alternative relief''s were

claimed on the same cause of action, either for Rs. 75,000 by way of damages on the ground of wrongful dismissal or for Rs. 2,500 for arrears of

pay, on the footing that there has been no affective dismissal. On this interpretation of the plaint, the court-fee payable would only be a fixed fee for

the declaratory relief and ad valorem fee on the higher of the alternative relief''s, namely the claim for Rs.75,000. We have no doubt that the

plaintiff''s grievance in respect of the arrears of pay for the period between the date of the institution of the suit and the date of his valid dismissal as

well as the excess court-fee charged against him will be remedied by the Government now that we have drawn their attention to it. With these

observations the petition is dismissed.