# October 24 Appeal dismissed. STATE OF MAHARASHTRA v. MISHRI LAL TARACHAND LODHA AND OTHERS

- **Citation:** [1964] 5 S.C.R. 230
- **Court:** Supreme Court of India
- **Decided:** 1961-04-12
- **Case number:** Civil Appeal No. 587 of 1962
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/october-24-appeal-dismissed-state-of-maharashtra-v-mishri-lal-tarachand-lodha-2973
- **Pages:** 10

## Headnote

230
SUPREME COURT REPORTS
[1964]
1963
relating to tax on profits of business" in paragraph
2 of the Removal of Difficulties Order. We hold
The Mahalaxmi that the High Court has rightly decided that the deMills Ltd.
preciation availed of by the assessee under the Bhavv.
nagar War Profits Act was a deductible amount in
The Commission- computing the written down value of the assets.
er of Income-Tax
All h
1
h
C'.
d"
·
d · h
B
b
t e appea s are t ere1ore 1sm1sse wit costs.
om ay
There will be one set of hearing fee in all the appeals.
Das Gupta J.
1963
October 24
Appeal dismissed.
STATE OF MAHARASHTRA
v.
MISHRI LAL TARACHAND LODHA AND
OTHERS
(P. B. GAJENDRAGADKAR,
K. SUBBA RAO,
K. N.
WANCHOO, J.C. SHAH AND RAGHUBAR DAYAL JJ.)
Bombay Court Fees Act, 1959 (36 of 1959), Art. I, Sch. I-
" Value of the subject-matter in dispute in appeal-Construction of
-A.ward of interest pendente lite noi specifically challenged-Court
fees, if payable.
The plaintiff-respondent No. I instituted a suit for recovery
of the amount lent to the defendant with interest upto the date of
the suit. His claim was decreed in a sum of Rs. 13,033-6-6 with
future interest from the date of suit till realisation at 4 % per annum
on a sum of Rs. 10,120.
Against this decree the defendant appealed
to the High Court and valued the appeal at Rs. 13,033-6-6 and
paid the requisite court fee on that amount.
All his grounds
of appeal related to the merits of the plaintiff's claims and did
not deal with the correctness of the trial court awarding future
pendente lite interest on the rate at which it was to be calculated.
The Taxing Officer directed the defendant to pay the deficit court
fee of Rs. 70 on the memorandum of appeal as he was of the opinion
that the appeal was against the whole decree and that the amount
of value of the subject-matter in dispute for purpose of court fee
was Rs. 14,036.SOnP. as the amount of interest from the date of the
suit till the date of the decree on Rs.10,120 came to Rs. l,033.40nP.
5 S.C.R.
SUPREME COURT REPORTS
231
The defendant challenged this order in revision before the High
1963
Court under s. 5(2) of the Bombay Court-fees Act, 1959. The
High Court set aside the order of the Taxing Officer and the learned State of MaharaJudge expressed the view:
shtra
"The subject matter in appeal is the real matter in dispute
between the parties and not something which must stand or
. v ..
fall with the decision on it. In other words, it must mean the
Mishri Lal
right which is in dispute between the parties".
Tarachand Lodha
In this Court the appellant State challenged the correctness
of the said view of the High Court and relied mainly on the construction put by courts on expression "value or subject-matter in dispute"
in the relevant provisions relating to the High Court's giving leave to
appeal to the Privy Council.
Held: (i) That the expression 'amount or value of the subjectmatter in dispute' in art. l of Schedule 1 of the Bombay Courtfees Act, cannot be construed in the light of the construction placed on a similar expression for the purposes of considering whether
the case had come within the rule allowing the High Courts to
, <
give leave for appeal to the Privy Council. The Act is a taxing
statute and its provisions have to be construed strictly, in favour
of the subject-litigant.
Gooroopersad Khoond v. Juggutchunder, 8 M.I.A. 166 and
Doorga Doss Chowdry v. Rarnanauth Chowdry, 8 M.I.A. 262,
held in applicable.
(ii) Claims not based on any asserted right but dependent on
the decision of the disputed right and reliefs in regard to which
are in the discretion of the court do not come within the purview
of the expression 'subject-matter in dispute in plaint or memo
of appeal' .
•
,-.1
(iii) The amount of pendente lite interest decreed is not to
be included in the 'amount or value of the subject-matter in dispute
in appeal' for the purposes of art. l of Sch. I of the Act unless
the appellant specifically challenges the correctness of the decree
for

## Text

230
SUPREME COURT REPORTS
[1964]
1963
relating to tax on profits of business" in paragraph
2 of the Removal of Difficulties Order. We hold
The Mahalaxmi that the High Court has rightly decided that the deMills Ltd.
preciation availed of by the assessee under the Bhavv.
nagar War Profits Act was a deductible amount in
The Commission- computing the written down value of the assets.
er of Income-Tax
All h
1
h
C'.
d"
·
d · h
B
b
t e appea s are t ere1ore 1sm1sse wit costs.
om ay
There will be one set of hearing fee in all the appeals.
Das Gupta J.
1963
October 24
Appeal dismissed.
STATE OF MAHARASHTRA
v.
MISHRI LAL TARACHAND LODHA AND
OTHERS
(P. B. GAJENDRAGADKAR,
K. SUBBA RAO,
K. N.
WANCHOO, J.C. SHAH AND RAGHUBAR DAYAL JJ.)
Bombay Court Fees Act, 1959 (36 of 1959), Art. I, Sch. I-
" Value of the subject-matter in dispute in appeal-Construction of
-A.ward of interest pendente lite noi specifically challenged-Court
fees, if payable.
The plaintiff-respondent No. I instituted a suit for recovery
of the amount lent to the defendant with interest upto the date of
the suit. His claim was decreed in a sum of Rs. 13,033-6-6 with
future interest from the date of suit till realisation at 4 % per annum
on a sum of Rs. 10,120.
Against this decree the defendant appealed
to the High Court and valued the appeal at Rs. 13,033-6-6 and
paid the requisite court fee on that amount.
All his grounds
of appeal related to the merits of the plaintiff's claims and did
not deal with the correctness of the trial court awarding future
pendente lite interest on the rate at which it was to be calculated.
The Taxing Officer directed the defendant to pay the deficit court
fee of Rs. 70 on the memorandum of appeal as he was of the opinion
that the appeal was against the whole decree and that the amount
of value of the subject-matter in dispute for purpose of court fee
was Rs. 14,036.SOnP. as the amount of interest from the date of the
suit till the date of the decree on Rs.10,120 came to Rs. l,033.40nP.
5 S.C.R.
SUPREME COURT REPORTS
231
The defendant challenged this order in revision before the High
1963
Court under s. 5(2) of the Bombay Court-fees Act, 1959. The
High Court set aside the order of the Taxing Officer and the learned State of MaharaJudge expressed the view:
shtra
"The subject matter in appeal is the real matter in dispute
between the parties and not something which must stand or
. v ..
fall with the decision on it. In other words, it must mean the
Mishri Lal
right which is in dispute between the parties".
Tarachand Lodha
In this Court the appellant State challenged the correctness
of the said view of the High Court and relied mainly on the construction put by courts on expression "value or subject-matter in dispute"
in the relevant provisions relating to the High Court's giving leave to
appeal to the Privy Council.
Held: (i) That the expression 'amount or value of the subjectmatter in dispute' in art. l of Schedule 1 of the Bombay Courtfees Act, cannot be construed in the light of the construction placed on a similar expression for the purposes of considering whether
the case had come within the rule allowing the High Courts to
, <
give leave for appeal to the Privy Council. The Act is a taxing
statute and its provisions have to be construed strictly, in favour
of the subject-litigant.
Gooroopersad Khoond v. Juggutchunder, 8 M.I.A. 166 and
Doorga Doss Chowdry v. Rarnanauth Chowdry, 8 M.I.A. 262,
held in applicable.
(ii) Claims not based on any asserted right but dependent on
the decision of the disputed right and reliefs in regard to which
are in the discretion of the court do not come within the purview
of the expression 'subject-matter in dispute in plaint or memo
of appeal' .
•
,-.1
(iii) The amount of pendente lite interest decreed is not to
be included in the 'amount or value of the subject-matter in dispute
in appeal' for the purposes of art. l of Sch. I of the Act unless
the appellant specifically challenges the correctness of the decree
for the amount of interest pendente lite independently of the claim
to set aside that decree.
In the present case, the decree in that respect was not specifically challenged and therefore the view of the High Court must be
held to be correct.
Mitthu Lalv. Charneli, 57 All. 71, Keolapati Mst. v. B.N. Varma,
I.L.R. 12 Luck. 466 and Ashutosh v. Satindra Kumar, 54 C.W.N.
380, referred to.
CIVIL
APPELLATE JURISDICTION:
Civil Appeal
No. 587 of 1962.
Appeal by special leave from the judgment and
order dated April 12, 1961, of the Bombay High Court
in Civil Revision Application No. 441 of 1961.
232
SUPREME COURT REPORTS
[1964]
1963
S. V. Gupte, Additional Solicitor-General of India
--
and R.H. Dhebar, for the appellant.
State of Mahara-
.
rashtra
S.G. Patwardhan and A.G. Ratnaparkht, for respondent No. I.
v.
Mishri Lal
The Judgment of the Court was delivered by
TarachandLodha
RAGHUBAR DAYAL J.--This appeal, by special
-
leave, raises the question whether the amount of
Raghubar Dayal interest decreed for the period subsequent to the inJ.
stitution of a suit comes within the expreosion 'amount
or value of the subject-matter in dispute' in art. I of
Schedule I of the Bombay Court-fees Act, 1959,
hereinafter called the Act, for purposes of court-fee
payable on the memorandum of appeal.
The plaintiff-respondent No. I instituted Special
Suit No. 5 of 1957 in the Court of the Civil Judge
(Senior Division) at Ahmednagar to recover Rs.13,205
on account of the principal lent to defendant No. 7
and interest up to the date of the suit at the rate
of 9% per annum. On Ju!ly 18, 1960, his claim was
decreed in a sum of Rs. 13,033-6-6 with future interest
from the date of suit till reali~ation at 4 % per annum
on a sum of Rs. 10,120.
Defendant No. 7 appealed to the High Court
against the decree. In the memorandum of appeal,
defendant No. 7 valued the claim for purposes of
jurisdiction and court-fee at Rs. 13,033-6-6 and his
grounds Nos. I and 48 of appeal were as follows:
"I. That the lower Court erred in decreeing
the plaintiff's suit.
48. That the decree is otherwise erroneous, unjust and illegal and therefore deserves to
be set aside."
The remaining 46 grounds related to the merits
of the plaintiff'~ claim and did not deal with the
correctness of the trial Court awarding future pendenie
lite interest on the rate at which it was to be calculated.
The Taxing Officer was of opinion that the appeal
was against the whole decree and that the amount
of value of the subject-matter in dispute for purposes
•
·~
i
ss.c.R.
SUPREME COURT REPORTS
233
of court-fee was Rs. 14,036. 80nP. as the amount
1963
of interest from the date of the suit till the date of
--
the decree on Rs. 10,120 came to Rs. 1,033.40 nP. State of Maha·
and it had been conceded by the counsel for the derashtra
fendant-appellant that the subject-matter of the appeal
. v'.
was the decree passed by the trial Court. He thereMzshri Lal
fore directed the defendant-appellant to pay the de-Tarachand Lodha
ficit court-fee of Rs. 70 on the memorandum of appeal R h -b D
1
d
d h
1 .
d'
l
ag u ar
aya
an to amen
t e c aim accor mg y.
J.
The defendant-appellant then filed a revision
to the High Court under s. 5(2i of the Act. His
objection was upheld by the learned Judge who expressed the view:
"The subject-matter in appeal is the real matter
in dispute between the parties and not something
which mu&t stand or fall with the decision on it.
In other words, it must mean the right which is
in dispute between the parties."
He accordingly set aside the order of the Taxing
Officer and held that the amount of court-fee paid on
the memorandum of appeal wa3 the proper court-fee.
The State of Maharashtra has filed this appeal by
special leave against this order.
Mr. Gupte, for the appellant State, contends
that the view expressed by the learned Judge is not
correct and mainly relies on the construction put by
Courts on the expression 'value or subject-matter
in dispute' in the relevant provisions relating to the
High Court's giving leave to appeal to the Privy
Council.
In Gooroopersad Khoond v. Juggutchunder cu the
Judicial Committee said, in connection with the
requirements of the directions in the Order-in-Council
of April 10, 1838, with respect to the conditions
for granting leave to appeal to the Privy Council,
that leave to appeal was to be given in cases where
the value of the matter in dispute in the appeal amounted to the specified >um of Rs. 10,000 and that in
(I) 8 M.l.A. 166.
234
SUPREME COURT REPORTS
[1964]
1963
determining such value, the amount of interest de-
-
creed up to the date of the decree be included to the
State of Mahara- amount of the principal.
shtra
v
Doorga Doss Chowdry v. Ramanauth Chowdr} <1 )
Mish;; Lal
is an authority for the proposition that the costs
Tarachand Lodha of a suit ~re no p~rt of the
~ubject-m~tter. in dispute. Their Lordships of the Pnvy CouncI! said:
Rughubar Dayal
" ........... .if they were allowed to be added
J.
to the principal sum claimed, it would be in the
power of every litigant, by swelling the costs,
to bring any suit up to the appealable value."
It may also be said that a litigant's conduct may lead
to a protracted trial and consequently to the
increase in the amount of pendente lite interest
which may raise the value of the subject-matter
in dispute in appeal to the appealable value.
We do not consider it correct that the expression
in the Act be construed in the light of the construction placed on a similar expression for the purposes
of considering whether the case had come within the
rule allowing the High Courts to give leave for appeal
to the Privy Council. The Act is a taxing statute
and its provisions therefore have to be construed
strictly, in favour of the subject-litigant. The other
provisions are for the purpose of allowing the par !y
feeling aggrieved against the decision of the High
Court to take up his case to the next higher Court,
the Privy Council and therefore the relevant provisions
in that regard had to be given a liberal construction .
. In the present case we have to construe the expression 'value of the subject-matter in dispute
in appeal' for the purposes of determining the amount
of Court fee due on a memorandum of appeal and
not for determining such valuation for prefetring
an appeal to this Court.
The relevant provision governing the question
of court-fee to be paid on the memorandum of appeal
filed in a Civil Court is contained in art. 1 of Sche-
(1) 8 M.I.A. 262.
I
5 S.C.R.
SUPREME COURT REPORTS
235
dule I of the Act. It is to be paid ad valorem according
1963
to the amount or value of the subject-matter in dispute. The rates applicable with respect to the various State of Mahaamounts are mentioned in the article. The maximum
rashtra
amount of court-fee, however, is Rs. 15,000.
v.
Mishri Lal
The amount of court-fee payable, therefore, de- Tarachand Lodha
pends on the amount or value of the subject-matter in
_
dispute in appeal. The defendant-appellant valued Raghubar Daya/
his claim at Rs. 13,033-6-6 and paid the requisite
J
court-fee on that amount. It is obvious therefore
·
that he disputes in appeal that part of the decree
which awarded Rs. 13,033-6-6 against him on account
of principal and interest due up to the date of the
institution of the suit. He did not dispute, according
to the value of his claim, the amount of interest which
could be found on calculation for the period between
the date of the suit and the date of the decree at
4% per annum on a sum of Rs. 10,120 as had been
awarded under the decree. Whether his appeal is competent or not without his including this amount in
his claim in appeal, is a queo.tion different from that
relating to the value of the subject-matter in dispute
in appeal. He does not dispute the decree for that
amount and therefore the Court has not to decide
about it and so this amount cannot be included in
the amount of the subject-matter in dispute in appeal
covered by the relevant expression. None of his
grounds of appeal refers specifically to this amount
of interest between the date of the suit and the date
of the decree. This makes it further plain that he
does not question the propriety of awarding of future
interest or the rate at which it was awarded or even
the amount on which it could be awarded. It is
not possible to say, in these circumstances, that the
value of the subject-matter in dispute in the appeal
must include this amount of interest between the
date of the suit and the date of the decree.
Mr. Gupte has rightly conceded that it is wellsettled that the plaintiff has to value his appeal against
the dismissal of his suit on the amount of the claim
he had made in the plaint and has not to include
236
SUPREME COURT .REPORTS
(1964]
1963
the interest due on the amount claimed up to the date
of instituting the appeal, that the defendant has not
State ofMahara-to include that amount of future interest subsequent
shtra
to the date of the decree till the institution of the
v.
appeal in the valuation of the appeal for the purposes
Mishri Lal
of court-fee and that no court-fee is to be paic! on
Tarachand Lodha the amount of costs decreed in the suit when the party
-
aggrieved appeals against the decree.
Raghubar Dayal
.
.
J
On what prmc1ple are these amounts not treated
·
as forming part of the value of the subject-matter
in dispute in appeal? Such value is to be determined
on the substantial allegation in the plaint or from the
pleas in the memorandum of appeal with respect
to the points in dispute between the parties and sought
to be determined by the Court. Such are necessarily
the points affecting the rights of the parties sought to
be adjudicated by the Court. Claims not based on
any asserted right but dependent on the decision of
the disputed right and reliefs in regard to which are
in the discretion of the Court do not come within
the purview of the expression 'subject-matter in
dispute in plaint or memo of appeal'.
There appears no good reason to make a distinction between the decreed amount of costs and that
of pendente lite interest for the purpose of determining
the amount of the subject-matter in dispute in appeal.
It is true that costs of suit arise independently of the
claim and are really those which are incurred by the
plaintiff while the decree for the amount of pendente
lite interest is directly related to the plaintiff's claim
though its award is within the discretion of the Court,
but tnis will not justify the distinction. The costs
too, and particularly the costs on account of court-fee
and counsel's fee,
arise directly on account of the
claim put forward in Court. The reason really is
that it is the value of the right claimed in the suit or
appeal which is covered by the expression 'amount
or value of subject-matter in dispute in art. I, Schedule
I, of the Act and that the plaintiff' has no right to get
any of these amounts from the defendant though
the Court may, in its discretion, allow future interest
t-,. .
,
r
I
~
I
...
I
5 S.C.R.
SUPREME COURT REPORTS
237
and costs according to the circumstances of the suit
1963
in view of ss. 34 and 35 C.P.C. This principle equally St
>JM h
1.
h
.
.
f h d
d
ate o
a araapp 1es to t e non-mclus1on o t e ecree amount
ht
of pendente lite interest in evaluating the subjects ra
matter in dispute in appeal as that too is awarded
M' ;·. L 1
in the exercise of its discretion by the Court and the T
zhs 'a' Ladh
1 . 'ff h
. h
1 . f
h
t
. t, arac an
o a
p amt1
as no rtg t or c aim or t at amoun agams
__
the defendant.
Raghubar Daya I
J.
It is obvious that if the defendant-appellant
succeeds in establi&hing to the satisfaction of the appellate Court that the decree for the principal and
interest up to the date of the suit is bad in whole
or in part, that will itself lead the appellate Court
to exercise its discretion with respect to the amount of
costs and future interest in such a way that if the plaintiff's claim is dismissed in toto, he will not be awarded
any future interest or any costs of the suit or appeal
and that in case bis claim succeeds in part, the amount
of future interest and costs decreed in his favour would
be appropriately modified by the appellate Court.
The defendant-appellant has therefore no reason to
appeal against the decree for costs or the decree
for future interest unless he disputes those amounts
wholly or partially for certain reasons. If he disputes
expressly the propriety or ccrrectness of the decree
with respect to the costs or pendente lite interest
independently of the claim to
the subject-matter
in the Trial Court he will have to pay court-fee on
the amounts challenged as in that case he does dispute
those amounts in appeal and therefore those amounts
do come within the expression 'value of the subjectmatter in dispute in appeal'. This has been the
basis of the various decisions of the Courts in which
court-fee has been demanded on the amount of costs
or future interest.
In Mitthu Lal v. Chameli <1 J it was held that no courtfee was to be paid on interest pendente lite granted
by the lower Court unless the awarding of it was specifically challenged in appeal. It was said at p. 76:
(!) 57 AIL 71.
238
SUPREME COURT REPORTS
[1964]
1963
State of Maharashtra
"Interest pendente
lite is awarded
under
section 34 of the Civil Procedure Code. The
Court may award it whether the plaintiff claims
it or not. In this respect the court's power
v.
Mishri Lal
TarachandLodha
Raghubar Dayal
J.
stands on the same footing as its power to award
costs to a successful party.
It is well-settled
rule that no court fee is payable on the amount
of costs awarded by a decree appealed from, if no
ground is specifically directed against the award
of costs ........................ _The same principle is
applicable to interest pendente lite which the
Court may award in the exercise of its power
under section 34. On a .proper reading of
the appellant's grounds of appeal in the lower
appellate court we are satisfied that the subjectmatter of his appeal to that court was the principal
amount and interest up to the date of the suit."
In Keolapati, Mst. v. B.N. Varma ciJ it was held
that unless the appellant expressly challenges the
award of future interest, no court-fee is to be paid on
the amount of interest accruing from the date of the
suit till the date of the filing of the appeal.
In Ashutosh v. Satindra Kumarl 2J it was said at
at p. 382:
"Costs are not regarded as being any part of
a subject-matter in dispute either in the suit
or in the appeal. In the appeal, the appellant
does not in such an event really dispute the order
as to costs for it is the natural order that is ordinarily made following the decision as to the
main subject-matter in dispute and if he himself
succeeds in the appeal in regard to the main
subject-matter, automatically he will expect to
succeed with regard to the costs."
We therefore hold that the amount of pendente
lite interest decreed is not to be included in the 'amount
or value of the subject-matter in dispute in appeal'
for the purposes of art. 1 of Schedule I of the Act
unless the appellant specifically challenges the cor -
(I) I.L.R. 12 Luck. 460.
(2) 54 C.W.N. 380.
••
•
I
..
,,
I
5 S.C.R.
SUPREME COURT REPORTS
239
rectness of the decree for the amount of interest
1963
pendente lite independently of the claim to set aside
--
that decree. The appellant here has not specifically State of Maharachallenged the decree in that respect and therefore
shtra
the High Court is right in holding the memorandum
. v._
of appeal to be sufficiently stamped. The appeal
Mishrz 1t1d''·
is therefore dismissed with costs.
Tarachand
0 na
Appeal dismissed. Raghubar Dayal
J .
MANG I LAL
v.
SUGANCHAND RATHI
(P.B. GAJENDRAGADKAR, K.
SuBBA RAo,
K.N.
WANCHOO, N. RAJAGOPALA AYYANGAR AND J.R.
MUDHOLKAR
JJ.)
Madhya Pradesh Accommodation Control Act, 1955 (23 of 1955),
s. 4(a)-Notice-Whether tenant should in arrears on the date of
suit-Acceptance of arrears-If right under notice waived-Transfer
of Property Act, 1882 (4 of 1882), s. 106.
The defendant was a tenant of the plaintiffs. The defendant
was in arrears of rent for one year to the extent of Rs. 1,020. On
April 11, 1959 the plaintiffs served a notice on the defendant requiring him to remit to them Rs. 1,020 within one month from the
date of service of notice, failing which suit for ejectment wou Id
be filed. This notice was received by the defendant on April 16,
1959. On June 25, 1959 the defendant sent a reply to the notice
enclosing with it a cheque for Rs. 1,320. This amount consisted
of the rental arre~rs as well as the rent due right up to June 30,
1959. The plamt1ffs accepted the cheque and cashed it and gave
a fresh notice on July 9, 1959 requiring the defendant to vacate
the premises by the end of the month of July. The defendant did
not vacate the premises.
Then the plaintiffs filed a suit to eject the defendant upon the
gr~mnd that the latter was in. arrears of rent for one year and had
fa!led to pay the arrears w1thm one month of the service of the
notice dated April 11, 1959 upon him. From the undisputed facts
1t was clear that the defendant was in fact in arrears of rent and had
failed to pay it within the time prescribed by cl. (a) of s. 4 of the
Madhya Pradesh Accommodation Control Act, 1953.
Held: (i) Though the notice dated April 11, 1959 could be
c.onstrued to be composite notice under s. 4(a) of the accommodation Act and s. 106 of the Transfer of Property Act it was ineffective
1963
October 24