ORDER
Ramesam, J.
1. Of the above petitions C.M.Ps. Nos. 1338 and 1339 of 1929 are applications for leave to appeal to the Privy Council against our judgments and decrees in A.S. Nos. 244 and 245 of 1922, respectively. C.M.P. No. 1340 of 1929 is an application under Order 45, Rule 4 of the Civil Procedure Code for a consolidation of the other petitions for purposes of pecuniary valuation and hearing. It is convenient to take up the third petition in the first instance, as the disposal of the other two petitions depends upon the disposal of this to a certain extent. Under Order 45, Rule 4 of the Civil Procedure Code we have power to consolidate the two suits for purposes of valuation, if they are decided by the same judgment. In the High Court they are undoubtedly decided by the same judgment, but it is objected by the learned Government Pleader that they were not decided by the same judgment in the Lower Court and therefore Order 45, Rule 4 does not apply. But in the first place I think the word “judgment” in Order 45, Rule 4 means the judgment appealed against and has nothing to do with the judgments of the Courts below. (Vide Deokinandan Prasad v. Narsing Rant (1921) 6 Pat.L.J. 97.) It is true that if this condition is satisfied, we consolidate not merely the appeals before us but all the proceedings in the suits. Moreover, a comparison of the so-called separate judgments of the first Court shows that the second judgment in A.S. No. 245 is practically a copy of the first Court’s judgment re-written omitting a few sentences or paragraphs. Except that two sentences in the third sub-paragraph of paragraph 2 are omitted and paragraph 4 (the summary of the 3rd defendant’s written statement which is unnecessary for the other cases) is also omitted, the judgment is identical up to paragraph 22. Paragraph 23 in the first case is not reproduced in the second case as it refers to a point which does not arise in the second case. The rest of the judgment is again identical. In a matter of this kind we think we should look to “the spirit of the rule and not the letter. This is the view taken by the learned Judges of the Bombay High Court in Jivangiri v. Gajanan Narayan (1926) I.L.R. 50 B. 753. I think that the judgments of the Lower Court must be regarded as the same judgment and therefore the objection of the learned Government Pleader is disallowed. We are prepared to consolidate the value of the suits if it is of any use to the petitioner.
2. This leads us to the next question whether, even after the consolidation, the value of the two suits together exceeds Rs. 10,000. When these petitions came on for disposal before us last time, we called for a report from the Subordinate Judge of Bezwada as to the value of the lands now and at the time of the suits.
3. In the view I now take, probably it would have been unnecessary to call for such a report as to the valuation of the lands at the time of the suit if an order was passed on the petition for consolidation. But, at that time, we passed no orders on the petition for consolidation. We simply said we would call for a report and dispose of the petition after the report is received. The report of the Subordinate Judge now is that the value of the lands in the first suit is Rs. 3,954, and in the second suit Rs. 5,868 omitting annas and pies. These values together with the value of the mesne profits claimed by the plaintiff prior to the plaint will certainly make the value Rs. 10,000. But the value of the two suits at the time of the suit does not amount to Rs. 10,000 according to his present report. In the first case he found the value to be Rs. 3,217 and in the second case he found it to be Rs. 4,085. These two values with the amount of mesne profits claimed do not bring the value up to Rs. 10,000. It is claimed by the learned Advocate-General appearing for the petitioner that it is not open to the respondent to go below the value given to these suits in the plaint because he adopted those values for the purposes of choosing the forum for his appeal when he filed the appeals from the decision of the Subordinate Judge to the High Court. If the valuation of the two suits were less than Rs. 5,000, the Government’s appeals would lie in the District Court of Kistna and not in the High Court. It is only because the value of each of the two suits was more than Rs. 5,000 that the appeals lay to the High Court. The Government did not object to the valuation of the plaint in the written statement; and adopting the value of the suits as valued by the plaint they filed appeals to the High Court. It is, therefore, contended by the learned Advocate-General that it is not open to him to say that the values were less. He relies on the decision of the Privy Council in Kristo Indro Saha v. Huromonee Dassee (1873) L.R. 1 I.A. 84. The learned Government Pleader seeks to distinguish this case on the ground that the principle mentioned therein, namely, that the opposite party when adopting the plaintiff’s valuation cannot reprobate it afterwards, applies only where the valuation of the plaint was a valuation based on the market value and not under the rules mentioned in the Court Fees Act. The decision in Kristo Indro Saha v. Huromonee Dassee (1873) L.R. 1 I.A. 84 was followed by us in Chelasani Raitayya v. Anne Brahmayya (1925) 49 M.L.J. 309 and also in Mallapudi Venkatarayudu v. Mallina Venkanna (1927) 104 I.C. 577. But these decisions do not help us to decide the distinction now drawn by the learned Government Pleader. This principle was applied by Sir Lawrence Jenkins, C.J., in another case in Kumar Basanta Kumar Roy v. The Secretary of State for India in Council (1910) 14 C.W.N. 872. The learned Advocate-General points out v in reply to the Government Pleader that in the case in Kristo Indro Saha v. Huromonee Dassee (1873) L.R. 1 I.A. 84 the valuation made by the plaintiff which the defendant had adopted for his appeal and which afterwards was opposed by very strong affidavits was itself a Court-fee valuation 15 times the profits of the land, and the Court Fees Act then in force is the same as the Court Fees Act in force now. But this aspect of the question was not discussed or dealt with by the learned Judges who disposed of the petition. But we cannot assume that the aspect was not present in the mind of their Lordships. About the same time the same Lordships of the Privy Council disposed of another case on a similar question in Baboo Lekraj Roy v. Kanhya Singh (1874) L.R. 1 I.A. 317. The interval between the two judgments is five months. In the second case it was held that a party is not precluded from showing that the market value is higher than the Court-fee valuation which he adopts for purposes of stamp duty. These two cases together were discussed by Sir Lawrence Jenkins, C.J. in the Calcutta case already referred to Kumar Basanta Kumar Roy v. The Secretary of State for India in Council (1910) 14 C.W.N. 872. At page 873 His Lordship observes:
But this involves no conflict of opinion: indeed it may be pointed out that in both the cases I have mentioned the judgment was delivered by Sir James Colville and the members of the Board were the same. And the distinction is obvious for in the earlier case the endeavour was to lower the value of the subject-matter and this was made by one who had adopted it for the purpose of the previous appeal preferred by him so that the principle that a party cannot approbate and reprobate governed, in the other cases which are collected in Hari Mohan Misser v. Surendra Narain Singh (1903) I.L.R. 31 C. 301 the endeavour was to raise the value and this was made in circumstances where that principle could not be invoked. 1 therefore hold that we must take the value of the property as that laid in the plaint and adopted by the respondents for the purposes of the appeal to this Court.
4. As I understand his Lordship’s judgment the defendant who adopted the plaintiff’s value cannot prevent the appellant from showing the market value is higher than the Court-fee value, but where the plaintiff wants to appeal and is content with the Court-fee value, the defendant who adopted it for his own purposes cannot say the real valuation is lower than the Court-fee value. The real reason behind this seems to be this that the methods of valuation adopted in the Court Fees Act of 1870 really represented the modes of estimating the minimum value of the lands;. It is not that the valuation of the subject-matter as mentioned in Section 7, Clause (5) does not represent anything connected with the rule of the land. It did represent the minimum value of the land. After the lapse of 30 or 40 years the value of the land’s has considerably increased. Now the lands are worth far more than the value adopted on the principles of the Court Fees Act. That being the case, it is inconceivable in these days to get a case where the Court-fee value should be more than the market value. The Court-fee value generally is far below the market value. The Court Fees Act is intended to give the benefit of a lower valuation for the purpose of Court-fees. But where the definite rules are not available the residuary clause refers the party to market value. Seeing it is not human nature to value the subject-matter of a suit at a value higher than its real value, it is not easy to imagine that the plaintiff has overvalued the lands in this case solely by anticipating the difficulty which has now arisen. The presumption therefore in all such cases is that the Court-fee value at least represents the minimum value. The presumption becomes very strong where the other party adopts it and uses it, because both parties would then have acquiesced in that value. It is said it is not open to one party afterwards to argue that the real value of the land is less than the Court-fee value given by one and adopted by the other. If this is really the reason underlying the decision from Kristo Indro Saha v. Huromonee Dassee (1873) L.R. 1 I.A. 84 onwards it seems to me that we ought to adopt that the value of the suit lands is at least the Court-fee value given in the plaints for the purposes of Court-fee. By so saying I do not mean that the market value is not to be looked to. The rule laid down in such a manner only means this that the Court-fee value is the least possible market value and it is safe to adopt it for our purposes. In this view, it is unnecessary to go into the reasons given by the Subordinate Judge for his valuation of the lands at the time of the suit.
5. It is also contended by the learned Advocate-General appearing for the petitioner that indirectly the question at issue involves the interests of larger value than Rs. 10,000. The substantial question of law in this case is what are the lands excluded from a zamindari at the time of the Permanent Settlement by reason of the terms in the Sadarwari Istimrari the terms of which are also embodied in the permanent regulation Section 4. The affidavit of the petitioner discloses that there are other suits concerning the resumption of service inam lands in the plaintiff’s zamindari which are now pending in the High Court in 19 second appeals and the value of these cases undoubtedly if added to the present makes the subject-matter of the dispute much more than Rs. 10,000. We explained the meaning of the word “indirectly” in Section 110 in Secretary of State for India in Council v. Subbarayudu (1929) 57 M.L.J. 477. Myself and Kumaraswami Sastri, J., also adopted that view in C.M.P. No. 793 of 1929 cited in Secretary of State for India in Council v. Subbarayudu9 There we said that the mere possibility of similar litigation in this Presidency will not entitle the petitioner in this case to add to the value unless the other litigation will be affected by the doctrine of res judicata in which case it helps. Adopting that test we think that this is another reason why the value of these petitions must be held to be more than Rs. 10,000. For all these reasons I would grant leave. Consolidation of the appeals is ordered.
Venkatasubba Rao, J.
6. The first question is, can the suits be consolidated? That depends upon the meaning of the expression “the same judgment” in Order 45, Rule 4, Civil Procedure Code. That order deals with appeals to the King in Council. The judgment referred to in that order must, therefore, be the judgment of the High Court–that being the one appealed against. In this case, the High Court disposed of the suits by a single judgment. The provision therefore applies.
7. Next, once an order is made under that section, it relates back to the suits from their very start. What it contemplates is the consolidating of the suits and not of the appeals. The test is, after such consolidation, is the subject-matter of the suits and similarly the subject-matter in dispute on appeal, of the requisite value under Section 110, Civil Procedure Code? The contention that Order 45, Rule 4 does not apply therefore fails.
8. Now that we hold that the provision applies, is there any ground for our refusing to make the order? The intention of the rule is to save time and expense. Unless sufficient grounds are shown, the Court would exercise its discretion in favour of the applicant.
9. The second question that is raised is one of valuation. According to the report of the Lower Court, the value of the subject-matter of the suits is less than Rs. 10,000. But it is argued that the defendant having adopted the valuation given in the plaint, he cannot now be permitted to show that it is wrong. For this position, the applicant relies upon Kristo Indro Saha v. Huromonee Dassee (1873) L.R. 1 I.A. 84. That case applies the doctrine of approbate and reprobate. But what is it then that the defendant cannot be allowed to show ? that the plaint valuation is wrong; for, that alone he can be deemed to have adopted by his conduct. But the value fixed in the plaint is not synonymous with the market value. Under Section 110, what we are concerned with is the market or real, as distinguished from the Court-fee value. See Baboo Lekraj Roy v. Kanhya Singh (1874) L.R. 1 I.A. 317 and Mohun Lall Sookul v. Bebee Doss (1860) 7 M.I.A. 428. In Kristo Indro Saha v. Huromonee Dassee (1873) L.R. 1 I.A. 84, the case above quoted, it was assumed, the point not having been taken, that the two values were identical. In my opinion, that case, therefore, is not an authority for the position that the defendant is precluded, as a matter of law, from showing that the real value is different from the Court-fee value.
10. But I agree with my learned brother, that the Court-fee value is hardly, if ever, more than the real value. In that sense, the previous conduct of the defendant becomes relevant. In this case, the Court-fee value (i.e., the value fixed in the plaint) is upwards of Rs. 10,000. I am, therefore, prepared to assume that the subject-matter of the suits is of the appealable market value. This and nothing more is, in my opinion, the effect of Kristo Indro Saha v. Huromonee Dassee (1873) L.R. 1 I.A. 84. The conduct of the defendant thus becomes a strong piece of evidence to which the Court attaches the utmost weight. The first part of Section 110 accordingly applies.
11. As regards the second part of that section, I have nothing to add to what my learned brother has stated.
12. In the result, I agree in the order proposed by him.
