Case: Nemi Chand And Another Vs. The Edward Mills Co. Ltd.And Another

2. The question whether the memorandum of appeal was properly stamped arose in the following circumstances : Edward Mills Co., Ltd., is a joint-stock company situate in Beawer, Ajmer Merwara. In accordance with the provisions of the articles of the company, one Seth Gadh Mal Lodha and Raj Sahib Moti Lal (respondent 2) were its chairman and managing director respectively sinceSeth Gadh Mal Lodha represented his family firm of Kanwal Nain Hamir Singh While Raj Sahib Moti Lal represented the joint family firm of Champa Lal Ram Swaroop. On 1-7-1938, Raj Sahib Moti Lal and his firm were adjudged insolvent by the Bombay High Court. The result was that respondent 2 had to vacate the office of managing director and the members of his firm also became ineligible for it. By a resolution of the Board of Directors passed on 18-71938, Gadh Mal Lodha was appointed to take the place of Raj Sahib Moti Lal as managing director. Gadh Mal Lodha died on 11-1-1942 and the board of directors then appointed Seth Sobhagmal Lodha to act as chairman as well as managing director till the appointment was made by the company. An extraordinary meeting of the company was called for 8-2-1945 for the election of the chairman. At this meeting conflict arose between the two groups represented by Sobhagmal Lodha and Moti Lal. The chairman, therefore, dissolved the meeting but the supporters of Moti Lal continued to hold it and passed a resolution appointing him as the sole agent and chairman for a period of twenty years on a remuneration equal to ten per cent, of the profits of the company. It is this resolution of 8-2-1942 which has led to the present dispute.Seth Sobhagmal in the situation that arose approached the District Judge of Ajmer with the prayer that a general meeting of the company may be held under the supervision of the Court. This request was allowed on 11-2-1942 and the Court ordered that the meeting be held on 12-21942 under the chairmanship of Seth Sobhagmal. Respondent 2 being aggrieved by this order, filed an application in revision in the Court of the Judicial commissioner impugning the order. The learned Judicial Commissioner allowed the revision and directed that the resolution of 8-2-1942 should be acted upon.Having failed to get redress in the summary proceedings, the appellant then filed the suit out of which this appeal arises for quashing the resolution ofIn the plaint he asked for the following reliefsThat it be declared that the appointment of defendant 2 is illegal, invalid and ultra vires and that he has no right to act as chairman, managing director etc., of defendantThat a receiver be appointed to take charge of the management of the company, until a properly qualified chairman, managing director etc., is duly appointed as required by the memorandum and articles of the company.The plaint bore a court-fee stamp of Rs. 10 only, but on the objection of the respondents that court-fee was payable on Relief No. 2, the appellants paidad valoremfee on Rs. 51,000 which was the valuation of the suit for purposes of jurisdiction.The Additional District Judge dismissed the suit on the preliminary ground that it was not maintainable as it related to the internal management of the company and that the appellants had no right to bring it without impleading the directors who were necessary parties to it.Aggrieved by this decision of the trial Judge, the appellants preferred an appeal to the Court of the Judicial Commissioner, Ajmer-Merwara, at Ajmer. The memorandum of appeal was stamped with a Court-fee stamp of Rs. 10 and it was expressly stated therein that Relief No. 2 of the plaint was given up. An objection was raised regarding the amount of court-fee paid on the memorandum of appeal. The Judicial Commissioner ordered that proper court-fees be paid thereon in a month. In this order no reasons were given for this decision. The additional fee demanded was not paid, and the Judicial commissioner dismissed the appeal with costs on 22-3-1945. An application was made for leave to appeal to the Privy Council against this order but it was refused. In the order refusing leave it was said as followsappeal to this court. the memorandum was again stamped with a ten-rupee stamp only and the respondents therefore objected. It having been conceded by- plaintiffs earlier that the relief for the receivership was consequential to the relief for the declaration, the appellants were directed to pay the same stamp as had been paid in the trial Court. They objected stating that they had expunged from their memorandum of appeal the request that the Court should appoint a receiver and that they were not therefore, liable to pay the same amount. on this a notice was issued and counsel were heard.It being clearly set out in S.Specific Relief Act, that no court shall grant a declaration only where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. the appellants were directed to pay as earlier ordered the same amount as had ultimately been paid on the plaint. They had earlier sought a consequential relief and the Court was, therefore, entirely unable to hold that the plaintiffs were unable to seek a further relief, they having sought the relief in the lower Court and it having been refused to them. The amount of the stamp was not paid and the appeal was. therefore, dismissed withreasons for demanding additional court-fee, though not mentioned in the original order, are stated in this order.

Reasoning:
6. The plaintiffs in express terms relinquished the second relief they had claimed in the plaint, -in their memorandum of appeal. For the purpose of deciding whether the memorandum of appeal was properly stamped according to the subject-matter of the appeal, it was not open to the Judicial Commissioner to canvass the question whether the suit with the second prayer eliminated from it fell within the mischief of the proviso to s. 42, Specific Relief Act. That was a question which related to the merits of the appeal and did not concern its proper institution. On this ground, therefore, the Judicial Commissioner had no jurisdiction to demand additional fee from the plaintiffs and the appeal could not be dismissed for failure to meet it. We are thus of the opinion that the order demanding additional court-fee on the memorandum of appeal as it stood, that is, minus the second prayer, was erroneous and we hold that the memorandum of appeal was properly stamped, a: the subject-matter of the appeal was purely of a declaratoryare unable to agree. The claim contained in the first relief of the plaint is to the effect that it be declared that defendant.2 has no right to act as Chairman and managing director because of his appointment being illegal, invalid, andultra vires.The declaration claimed is in negative form that defendant 2 has no right to act as chairman and managing director. No claim for a consequential relief can be read within this prayer. The words "that defendant 2 has no right to act as chairman......." are mere repetition of what is contained in the opening sentence of the paragraph.This contention of Mr. Setalvad, therefore, cannot be sustained.It thus appears that the consensus of judicial opinion is against the construction suggested by Mr. Setalvad. We think that the construction given to the language in s. 12 in these decisions is right, and our reasons for saying so are these.The difference in the phraseology employed in Ss. 5 and 12, Court-fees Act, indicates that the scope of s. 12 it narrower than that of s. 5. Section 5 which declares decisions on questions of court-fee whenever they arise in the chartered High Courts as final makes a decision as to the necessity of paying a fee or the amount thereof final. Whereas s. 12 makes,a decision on every question relating to valuation for the purpose of determining the amount of any fee payable under chap. 3 on a plaint or memorandum of appeal final. Hall s. 12 been drafted somewhat as followsany dispute arises as to the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal, it shall be decided by the Court in which such plaint or memorandum is filed and such decision shall be final as between thethe construction contended for by Mr. Setalvad might have been upheld. When the two sections in the same Act relating to the same subject-matter have been drafted in different language, it is not unreasonable to infer that they were enacted with a different intention and that in one case the intention was to give finality to all decisions of the taxing officer or the taxing judge, as the case may be, while in the other case it was only intended to give finality to questions of fact that are decided by a Court but not to questions of law. Whether a case falls under one particular section of the Act or another is a pure question of law and does not directly determine the valuation of the suit for purposes of court-fee. The question of determination of valuation or appraisement only arises after it is settled in what class or category it falls.Conceding for the sake of argument but not admitting that Mr. Setalvad is right in his contention that s. 12 is comprehensive enough to include within its ambit all questions relating to court-fee whether they involve a decision as to question of category or as to valuation simpliciter, in the present case the Judicial Commissioner decided none of these questions and his decision cannot be said to be one falling within the ambit of S.All that the Judicial Commissioner decided was that the suit could not be maintained without asking for relief No. 2, the same fee was payable on the memorandum of appeal as on the plaint. In substance the Court decided an issue regarding the maintainability of the appeal without first deciding whether the appeal had been properly instituted in that Court. No finality can attach to such a decision by the provisions of S. 12, as in reality it decides no question within the ambit of S. 12, Court-fees Act.For the reasons given above the second abjection raised by Mr. Setalvad that no appeal lies from the order of the Judicial Commissioner by special leave is without force and is overruled.