JUDGMENT
Hemant Gupta, J.
1. The challenge in the present revision petition is to the order passed by the learned trial Court on 22.3.2004 holding that the plaintiffs are required to affix proper court fee on the amount of Rs. 20 lacs claimed by them.
2. The plaintiff-petitioners have filed a suit for damages on account of the death of Jasvir Singh, husband of petitioner No. 1, father of petitioner No. 2 and son of petitioner No. 3, who died on 9.7.2003 due to electrocution. It has been pleaded that the deceased was working in the Punjab Police as Special Police Officer and was drawing Rs. 2,500/- as monthly salary and was selected as hill fledged Constable. The deceased was also earning more than Rs. 10,000/- per month from agriculture land. The plaintiffs also claimed a sum of Rs. 30,000/- on account of funeral expenses and Rs. 10,000/- on treatment and travelling. Another sum of Rs. 10,000/- was claimed on account of damages and repairs to the motorcycle and Rs. 30,000/- on account of injuries received by plaintiff No. 1. Another sum of Rs. 1 lac was claimed for pain and suffering, medical expenses and for loss of comfort etc. It was also pleaded that the deceased was to retire in the year 2021 and the life expectancy of the family of the deceased is more than 80 years and, thus, claimed a sum of Rs. 20,00,000/- as damages. The plaintiffs fixed the value of the suit for the purposes of court fees and jurisdiction at Rs. 500/- and paid a fee of Rs. 50/- thereon.
3. Learned Counsel for the petitioners relied upon Hem Raj v. Harchet Singh 1993 Civil Court Cases 48 (Punjab and Haryana), Subhash Chander Goel v. Harvind Sagar and State of Punjab v. Jagdip Singh Chowhan , to contend that in a suit for damages, it is for the plaintiff to fix tentative value of the suit and that the court has no other alternative than to accept the plaintiffs tentative value and, therefore, the order passed by the learned trial Court is not sustainable.
4. On the other hand, learned Counsel for the respondents has relied upon the provisions of Section 7(i) of the Court Fees Act, 1870 (hereinafter to be referred as “the Act”0 which contemplates that in a suit for money, including suits for damages or compensation or arrears of maintenance, of annuities, or of other sums payable periodically, the court fees payable is according to the amount claimed. It is contended that Section 7(iv)(f) of the Act i.e. in a suit for accounts, the court fee is payable in suits for accounts according to the amount at which the relief sought is valued. Still further, it is pointed out that fixed fee contemplated under Schedule II, Item No. 17(vi) of the Act is in the cases where it is not possible to estimate at a money value the subject-matter in dispute, and which is not otherwise provided for by this Act. It is, thus, sought to be argued that since the plaintiffs have claimed specific amount in the suit, it is not suit for accounts as contemplated under Section 7(iv)(f) or in terms of Schedule, Item No. 17(vi) of the Act and, therefore, advalorem court fees is payable. It is further argued that the binding precedents of Hon’ble Supreme as Gopalakrishna Pillai v. Meenakshi Ayal , and that of Division Bench of this Court as M.S. Chemical Industries Limited , has not been taken into consideration in the judgments referred to by learned Counsel for the petitioners and, therefore, the said judgments are per incurium and do not lay down binding precedence. Learned Counsel also referred to a Division Bench judgment of predecessor Court as Qyamuddin v. Delhi Flour Mills Co. Limited A.I.R. 1919 Lahore 363, D.S. Abraham & Co. A.I.R. 1925 Rangoon 65, Bhagwant Sarup v. Himalaya Gas Co. A.I.R. 1985 Himachal Pradesh 41, R & D Enterprises (Exports) v. Air France , Devi Chand v. Har Kishan Dos Indian Law Reports 1954 (2) Allahabad 531, Durga Pharma Distributors, Hyderabad v. Geoffrey Manners & Co. Ltd. A.I.R. 2000 Andhra Pradesh 242 and Naranjan Singh v. Kartar Singh (2002-1) 130 P.L.R. 151 to contend that it is settled view of the Courts that in a suit for damages advalorem court fees is payable. It is also pointed out that in Special Leave Petition against the order passed by this Court in Jagdip Singh Chowhan’s case (supra), Hon’ble Supreme Court has stayed further proceedings in the civil suit vide order dated 10.12.2004.
5. In Hem Raj’s case (supra) relied upon by the petitioners, a Single-Bench of this Court found that the distinction between a. suit relating to rendition of accounts and suit for recovery of damages is without any difference. The Court held that there is no objective standard available which can help determine the amount for which the plaintiff has to value the relief claimed by him and that in the nature of things, the valuation put by the plaintiff is tentative. It was held to the following effect:
Mr. J.C. Nagpal, learned Counsel for the respondents, submitted that the various authorities cited by Mr. Chopra related to cases of rendition of accounts. He submitted that in suits relating to rendition of accounts the statute itself expressly gave power to the plaintiff to value the relief which he claims. He further pointed out that there was no such enabling provision in so far as suit for the recovery of compensation/damages falling in Section 7(1) of the Court Fees Act was concerned. In my view, this is a distinction without difference. In the case of the amount of compensation, there is no objective standard available which can help determine the amount for which the plaintiff has to value the relief claimed by him. In the nature of things, the valuation put by the plaintiff is tentative and in view of the settled position of law, the same cannot be disputed….
6. To return such finding, the Court has not referred to any provision of statute or any precedent. Later, another Single Bench of this Court in Subhash Chander Gael’s case (supra), has followed the view expressed in Hem Raj’s case (supra) but without noticing the statutory provisions faad other binding precedents.
At this stage, certain provisions of the Court Fees Act, 1870, relevant for the determination of the controversy read as under:
7. Computation of fees payable in certain suits:
The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:
for money.- (i) In suits for money (including suits for damages or compensation, or arrears of maintenance, of annuities, or of other sums payable periodically) -according to the amount claimed; (iv) In suits-
for accounts.- (f) for accounts – according to the amount at which the relief sought is valued in the plaint or memorandum of appeal:
In all such suits, the plaintiff shall state the amount at which he values the relief sought;
Schedule II
Fixed Fees
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Number Proper fee --------------------------------------------------------- 1 to 16 x x x x x x x xx 17. Plaint or memorandum of appeal in each of the following suits: (vi) every other suit where it is not Nineteen rupees and possible to estimate at a money value Fifty naya paise the subject-matter, rupees in dispute, and which is not otherwise rovided for by this Act.
7. A Division Bench of this Court in M.S. Chemical Industries Limited etc. v. The Hindustan Commercial Bank Limited , has held that the court fees is to be paid according to the amount claimed. It was a case where the plaintiff claimed damages of Rs. 30,000/- on account of unlawful demolition of Chimney and, thus, causing them a loss. It was the case of the plaintiff that a sum of Rs. 23,973/14/3 is payable to the bank and after adjusting the said amount, the plaintiff is entitled to recover Rs. 6023/1/9.
8. In Gopalkrishna Pillai’s case (supra), the Court found that under Order 20 Rule 12 of the Code of Civil Procedure, 1908, the court is to pass a decree for both past and future mesne profits. With regard to past mesne profits, the plaintiff has an existing cause of action on the date of institution of the suit. In view of Order 7 Rules 1, 2 and 7 of the Code of Civil Procedure, 1908, and Section 7(i) of the Court Fees Act, 1870, the plaintiff must plead his cause of action, Specifically claim a decree for past mesne profits, value the claim approximately and pay court fees thereon. However, with regard to future mesne profits, the plaintiff has no cause of action on the date of institution of the suit and it is not possible for him to plead this cause of action or to value it, or to pay court fees thereon at the time of institution of the suit. It may be noticed that the claim for mesne profits and damages for breach of contract or other fall in same clause i.e. 7(i) of the Act. It was held to the following effect:
Order 20, Rule 12 enables the Court to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit. In view of Order 7, Rules 1 and 2 and Order 7, Rule 7 of the Code of Civil Procedure and Section 7(i) of the Court Fees Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay court-fees thereon. With regard to future mesne profits the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to alue it or to pay court-fees thereon at the time of the institution of the suit….
In Qyamuddin’s case (supra), a Division Bench of Lahore High Court held that, according to Section 7(1) of the Act, the fee payable in a suit for money must be according to the amount claimed. It was held to the following effect:
…Section 7, Clause (1), Court-fees Act, prescribes that the fee payable in a suit for money must be according to the amount claimed. Now, the plaintiff has, as stated above, paid the court fee in accordance with this clause, and we are not prepared to hold that Article 1, Schedule 1 of the Act which provides that a plaint or a memorandum of appeal should bear court-fee on the amount or value of the subject matter in dispute, militates against his contention. It is to be observed that this article applies only to those cases which are not otherwise provided for under the Act. There can be no manner of doubt that in determining the sum to be awarded to the plaintiff, the Court has to adjudicate upon the amount of the loss sustained by the plaintiff on account of the breach of contracts; but we do not think that amount should determine the value for the purpose of court-fee. Indeed there are many suits, i.e. those for the rendition of accounts between parties or between principals and agents or suits involving cross-demands, in which the Court has to adjudicate upon various large items in dispute between the parties, though the actual amount claimed by the plaintiff is a comparatively small sum of money. In all these suits it is the amount claimed by, or decreed to, the plaintiff which determines the court-fee leviable on the plaint, and not the various sums which may be the subject-matter of controversy between the parties and upon which the Court may have to record its findings before arriving at the final conclusion.
9. A Division Bench of Allahabad High Court in Devi Chand’s case (supra) held that right to claim damages accrue to the plaintiff on the date of the breach, though, in determining the amount, the courts have to make an estimate of likely damages suffered by the plaintiff for the early termination of the contract. As regards the damages actually suffered up to the date of the decree, correct figures can be worked out but as regards the damages to be suffered in future, the estimate at best can be a rough one. It was held to the following effect:
In this connection it must be remembered that, where there has been a breach of contract which was to run for several years, and as a result of the breach, the plaintiff claims damages the right to claim damages has accrued on the date of the breach, though, in determining the amount, the courts have to make an estimate of likely damage suffered by the plaintiff for the early termination of the contract and anticipate as best as they can, what those damages are likely to be. Though in case of a breach of contract the plaintiff is entitled, as far as possible to be put in the same position as he would have been in case the contract had been carried out and get all such damages as naturally flow from the defendant’s failure to perform his part of the contract and are not too remote, the plaintiff is under an obligation to mitigate the damages as far as possible. As regards the damages actually suffered up to the date of the decree, correct figures can be worked out but as regards the damages to be suffered in the future, the estimate at best can be a rough one….
10. In Bhagwant Sarup’s case (supra), wherein damages on account of fire due to bursting of gas cylinder in the kitchen were claimed, learned Single Judge of Himachal Pradesh High Court held that since the suit is for recovery of specific sum as damages and ad valorem court fees has been paid, therefore, the suit has been correctly valued for the purposes of court fee and jurisdiction. Similar view is expressed by Delhi High Court in R & D Enterprises (Exports) and Anr. case (supra) that in a case where the suit is for recovery of specific amount, ad valorem court fee is provided for. It was held to the following effect.
9. It is the duty of the court, in which the suit is instituted, to ensure, at the time of institution of the suit, that proper court-fee has been paid according to the Court-fees Act. It is clear from the resume of the plaint, extracted above, that the suit filed is basically and substantially one for money failing under Section 7(i) of the Court-fees Act. The averments in the plaint and the relief claimed essentially makes it so. So far as money suits are concerned, advalorem court fees provided for in and computed as per Schedule I of the said Act shall have to be paid. For simple suits for money, there is no provision or warrant to fix a tentative value for court fee in the plaint, which is possible in suit for accounts or for partition or for administration or for winding up accounts of a partnership. In such type of cases, a preliminary decree is passed to ascertain the amount due to the plaintiff and when such amount is ascertained a final decree for the ascertained sum is passed. Para 48 of the Forasol case A.I.R. 1984 S.C. 241 (supra) makes it abundantly clear. The basic difference in such types of cases and a money suit is that in the latter case there can be only one decree. There is, therefore, no question of affixing tentative value in a money suit in which advalorem court fee is payable on the sum claimed.
11. In the instant case the amount claimed in plaint Para 23, as noticed above, being Rs. 5,00,002/-, court-fees is payable on this amount. The amount of compensation payable has to be decided by the court on the merits of case. It may be found to be more or less than the amount claimed in the suit or it may be that it is held to be not payable. Can the plaintiff for this uncertainty be allowed to pay court fees on some tentative value, arbitrarily fixed, instead of the amount claimed by him in the suit, even though with an averment to make up the deficiency, if any, at a later stage “Obviously not, for otherwise this would tantamount to undue and unfair advantage and indeed an abuse of the process of the court by enabling a plaintiff to make a highly exaggerated claim at an astronomical figure and having trial process for adjudication of issues raise without payment of proper court-fees on the claim so laid.”
I am supported in my above view by a judgment of this Court in Naranjan Singh’s case (supra) (2002-1) 130 P.L.R. 151 wherein it was held to the following effect:
A claim of mesne profits is in essence a claim for damages or compensation. There is a substantial difference between mesne profits, antecedents to the suit which may be always approximately valued as they have already accrued due during a definite period and mesne profits subsequent to the suit which at the date of plaint must be treated as uncontainable because it depends upon an uncertain element, namely, the period of time which would intervene between the date of the institution of the suit and the date of recovery of possession under the decree. The first category is governed by Clause (i) of Section 7 of the Court-Fees Act and ad valorem court fee is payable thereupon whereas second category is governed by Section 11 of the Court Fee Act.
11. The observations in Hem Raj’s case (supra) that there is no distinction in a suit for rendition of accounts arid a suit for damages is contrary to the provisions of Section 7(i) contemplating ad valorem court fees in a suit for money and the amount at which the relief is sought in a suit for accounts in the terms of Section 7(iv)(f) of the Act. Since the statute itself deals with these suits differently, the basis of such judgment is, in fact, contrary to the statutory provisions.
12. In the present case, the plaintiffs have specifically claimed Rs. 20 lacs as damages. Though exact break up of the entire claim has not been mentioned, yet the basis of claim of such compensation is available in the plaint which is evident from reading para Nos. 5 to 9 thereof. Therefore, the plaintiffs have claimed specific amount. Whether the plaintiffs succeed in claiming such amount is not the question which can be done into at the time of deciding the question whether proper court fees has been affixed. The plaintiff may or may not succeed in getting the amount claimed but it is for him to establish his loss and affix court fees thereon. It is well settled that the court fees has to be determined on the basis of entire reading of the plaint. Therefore, in terms of Section 7(i) of the Act, the plaintiffs are liable to pay advalorem court fees on the amount of Rs. 20 lacs.
13. Therefore, in view of the principles discussed above and the binding precedents of the Hon’ble Supreme Court in Gopalkrishna Pillai’s case (supra), of this Court in M.S. Chemical Industries Limited’s case (supra) as well as from clear and unambiguous language of the statute, I am of the opinion that the order passed by the learned trial Court cannot be said to be suffering from any patent illegality or material irregularity which may warrant interference by this Court in exercise of its revisional jurisdiction under Article 227 of the Constitution of India.