101-NLR-NLR-V-41-SAMYNATHAN-v.-ATUKORALE.pdf
Samynathan v. Atukorale.
409
1940Present: Soertsz and Keuneman JJ.
SAMYNATHAN v. ATUKORALE.78—D. C. (Inty.) Ratnapura, 5,916 with 135—D. C. (.Final)Ratnapura, 5£16.
Stamps—Value of action for purposes of fixing stamp duty—Value placed onsubject-matter in pleadings is the test—Petition of appeal stampedaccording to value of land stated in plaint.
An action remains throughout the proceedings, for the purpose oflevying the stamp duty, in the class in which the pleadings placed itunless an order of the Court at a relevant stage of the case put it in aclass of higher or lower value.
Sinnetamby v. Tangamma (1 C. A. C. 151) followed.
, Bartleet v. Perera (15 C. L. W. 3) distinguished.
A N appeal from a judgment of the District Judge of Ratnapura.
A preliminary objection was raised by the plaintiff-respondent on theground that the petition of appeal had been insufficiently stamped.
The defendant-appellant stamped the petition of appeal upon thebasis of the value of the lands as stated in the plaint.
R. L. Pereira, K.C. (with him M. T. de S. Amerasekere, K.C., and C. S.Barr Kumarakulasingham), for the plaintiff, respondent, takes preliminaryobjection.—The appeal is not properly constituted. Adequate stampshave not been supplied by the appellant. The petition of appeal has beenstamped on the footing of the value mentioned in the plaint. In point offact the value of the subject-matter of the action, whether determined bythe value of compensation claimed in the answer or by the value fixed bythe defendant to the lands in dispute, is higher than the sum mentionedin the plaint. Further, the District Judge himself has assessed the valueof the lands at Rs. 88,000. Bartleet v. Perera is directly in point. Seealso In re Porkodi Achi* and In re G. B. Seethayamma
H. V. Perera, K.C. (with him N. E. Weerasooria, K.C., E. A. P. Wije-ratne, and A. E. R. Corea), for the defendant, appellant.—There is nosubstance in the objection. When there is a claim and a counterclaim,the bigger of the two, and not their aggregate, determines the value of theaction—Little’s Oriental Balm and Pharmaceutical, Ltd. v. P. P. Saibo'.In the present case the actual claim in reconvention (Rs. 7,500) is lessthan the value of the subject-matter in dispute, as assessed in the plaint.The incidental statement in the answer that we had spent Rs. 100,000 forimprovements cannot be regarded as a formal claim. Further, thecompensation for any improvement is essentially less than the value ofthe land on which it is put up; the part can never be greater than thewhole.
In our law stamping is decided according to the value which emergesfrom the pleadings and is not dependent on the value of the interestinvolved in the appeal-—Sinnetamby v. Tangamma In the absence of a
•’ (1925) A. I. R. Mad. 323.'(1938) 40 N. L. R. 441.
' (1939) 15 C. L. W. 3.
1 (1922) A. I. R. Mad. 211.
" (1912) 1 C. .4. C. 151.
410
SOERTSZ J.—Samynathan v. Atukorale.
superseding order of the Court the class of a case is determined by thepleadings. Under-valuation of the subject-matter of an action* is on adifferent footing from under-stamping. In the latter case no express orderof Court is necessary to invalidate a document which is not stampedaccording to the value which already appears on the face of the document.Sections 32 and 33 of the Stamp Ordinance (Cap. 189) bear reference toimpounding only. Under section 35, when a judicial officer impounds adocument, he does not consider the valuation. Section 87 of the StampOrdinance enables the Court to consider the question of valuation intestamentary cases only. Even in non-testamentary cases Court can doso, but only under section 46 of the Civil Procedure Code. Unites,therefore, an order is made by Court under section 46 (g) of- the CivilProcedure Code altering the class the stamping is done according to thevaluation contained in the claim or counter-claim, whichever is greater.
The position in India is different. In re Porkodi Achi (supra) andIn re G. B. Seethayamma (supra) are decisions based on the Indian CourtFees Act which contains special provisions for stamping regarding thesubject-matter in dispute in the appeal. In Ceylon the class of a case isdecided once for all in the District Court.
R. L. Pereira, K.C., in reply.—The Indian cases, already cited, weredecided independently of the Court Fees Act.
The damages claimed should be included for the purpose of the valuationof an action, Sinnappoo v. Theivanai Maitripala v. Koys‘.
The. Supreme Court is specially responsible for documents beingproperly stamped, Bartleet v. Perera *.
Cur. adv. milt.
June 26, 1940. Soertsz J.—
Counsel for' the plaintiff-respondent takes a preliminary objection to thehearing of this appeal on the ground that the petition of appeal isinsufficiently stamped, and that the stamps tendered for the certificate inappeal and for the decree of this Court are also insufficient. If thisobjection is sound, it is clearly fatal to the appeal. The stamps affixedand furnished by the defendant-appellant are, admittedly, in accordancewith the value of the matter in litigation as averred in the amended plaintfiled by the plaintiff-respondent himself, but respondent’s Counselcontends that the question of the sufficiency of the stamps must bedetermined, at this stage, in this case (a) with reference to the value of theimprovements claimed by the defendant, and stated by him in hisanswer to be over Rs. 100,000, or (b) with reference to the value ofRs. 90,000 fixed by the defendant in his answer, as the value of the landsin litigation, or (c) at least with reference to the value of the lands thatemerges as Rs. 88,000 as a result of the answer given by the trial Judge toissue No. 23.
In regard to these contentions, I have had little difficulty in reachingthe conclusion that in the circumstances of this case the value put uponhis improvements generally, and the value put upon the land in litigationby the defendant-appellant have no bearing on the question of the valueof the action for the purpose of fixing the stamp duty payable. These
1 (1937) 39 N. L. R. 121.* (1939) 14 G. L. W. 112.
3 (1939) IS C. L.W.3al 6.
SJOERTSZ J.—Samynathan v. Atukorale.411
values occur in the course of allegations made by the defendant in hisanswer, but were not made by him the basis upon which to found an actualclaim in reconvention. The only claim made by way of reconvention, inthe proper meaning of that phrase, was a claim for Rs. 7,500 on accountof damages, said to have been sustained by the defendant, in consequenceof the injunction which he alleged the plaintiff had wrongfully and unlaw-fully obtained in this case. Apart from this claim in reconvention, thedefendant’s chief prayer in regard to the plaintiff’s case was that it shouldbe dismissed, but he took the precaution to ask in the alternative that inthe event of the plaintiff being declared entitled to any portion of the landin litigation, he be condemned to pay the defendant compensation forimprovements found to have been effected by him on that portion.Obviously, no value could have been placed on such a claim at that stage.Its value must necessarily depend on the ultimate finding by the Judge inregard to the title to the bare land involved in the litigation. Therefore,in my opinion, the mere fact that the defendant-appellant in the course ofhis answer stated that he “ has planted and erected valuable buildingsand cooly lines upon and otherwise improved an extent of 200 acres fromlots 18 and 41 and 10 acres from lots 14 and 14a at an expense of overRs. 100,000 ” is really of no consequence. The plaintiff, at no stage,claimed more than 176 acres, and at the time the defendant made thestatement I have referred to in his answer, there was nothing to show thatthe major part in value of the defendant’s improvements fell within theland claimed by the plaintiff. Counsel for the respondent has invited ourattention to the evidence given by the defendant-appellant where he said“ I have claimed Rs. 100,000 as compensation in the event of my not beingdeclared entitled to the land.” I do not think we can take any notice ofthis. The statement is inaccurate. The defendant-appellant did notclaim Rs. 100,000, nor did he claim to be declared entitled to the land.All he asked for was a dismissal of the plaintiff’s action, and for an investi-gation into the question of compensation, in the event of the plaintiff beingdeclared entitled to any part of the land found to have been improved byhim. Such a claim for any unliquidated amount by way of compensationor set off cannot, in my opinion, be accurately described as a claim inreconvention.
The case of Bartleet v. Perera1 has no application here. The defendantin that case made a claim in reconvention that was higher than the claimthe plaintiff had made. In other words, he brought into the case aclaim involving a larger sum of money than was involved in the plaintiff’sclaim and, once that happened, it necessarily followed that the stampinghad thereafter to be on the basis of the new value imported into the suit.
Then, in regard to the argument based on the value of Rs. 90,000 putupon the land by the defendant-appellant, that again in my opinion doesnot affect the question. There has been no finding by the Judge, at anystage, in regard to this conflict in values for the purpose of fixing thestamp duty that was leviable, and no order was made by him with that .matter in view. There seems to me to be no justification for saying thatwhen a defendant puts a higher value on the matter in litigation than wasplaced upon it by the plaintiff, there results an alteration in the class of
1 15 C. L. W. 3.
412
SOERTSZ J.—Samynathan v. Atukorale.
the case. To say the least, in the-absence of an order by the trial Judgein regard to the value of the matter in litigation, there is no good reasonthat I can find in law, or in logic, for preferring the value fixed by thedefendant to that given by the plaintiff.
The next question that arises for consideration is whether the valueput upon the lands by the trial Judge in answering issue No. 23 results inplacing this action in a higher class, at least, as from the date of thatfinding. In my opinion it does not, so long as the trial Judge has notmade that finding a basis for an order that instruments and documents inthe case should be stamped in accordance with his finding. There is nosuch order here. Even if there had been such an order, and the plaintiffappealed against it, it seems to me that the petition of appeal would becorrectly stamped, if its stamping were in accordance with the value putupon the action by the plaintiff. But in reality, in this case, the answer toissue No. 23 appears to have been sought, and to have been given in viewof the claim for improvements. .The question of sufficient stamping doesnot seem to have been contemplated by Counsel when that issue wasframed, dr by the Judge when he answered it.
It only remains for me to refer to the Indian cases relied upon byCounsel for the respondent. The applicability of those cases mustdepend upon the identity of the context in which those decisions weregiven with the context in which this question arises before us. So far asthe material disclosed in the judgments in those cases is concerned, itwould appear that the point involved in the case of In re Porkodi Achi ‘arose under a particular act known as the Court Fees Act, which providesfor the classification of suits in different ways, for the purpose ofascertaining the Court fees payable by the parties to the litigation. Forthat purpose, suits for possession of immovable property are placed in oneclass, suits for money in another, and so forth. The learned Judge in thatcase after reviewing a number of authorities said “ The current of authorityis clearly in favour of the view that the value of an appeal is not in allcases the value of the suit as originally filed but the value of the reliefgranted by the decree which a party wishes to get rid of. ” This dictum isnot quite accurately worded, at least, so far as the report before us goes.What the learned Judge appears to have intended to say is that “ thecurrent of authority is clearly in favour of the view that the value of anappeal is riot in all cases the value of the suit as originally filed, ” but mayin some cases, be the value of the relief granted by the decree which aparty wishes to get rid of. This dictum, however,, hypothesizes for itsapplicability, a case in which the value of the suit as originally filed and'thevalue of the relief granted are different. In the case before us the reliefgiven to the plaintiff is the relief, he sought subject to the payment ofcertain compensation for improvements. But the appellant here seeksto get rid of the relief given to the plaintiff in the decree in that itdeclares him entitled to the land he sought to vindicate. If he succeeds inobtaining that relief, the question of compensation for improvements doesnot arise. For this reason alone my view is that.this case has no appli-cation. Nor, in my opinion, has the other Indian case cited to us, In re G. B.Seethayamma~ application. In that case, the plaintiff obtained a decree'(1922) A. I. R. Mad. 211.- (1925) A. I. R. Mrul. 323.
Government Agent, Kandy v. Kamnaratne.
413
against the 11th defendant for the recovery of a half share of certain lands onpayment to the eleventh defendant of Rs. 12,000. The eleventh defendantappealed and asked that the plaintiffs’ suit for recovery of possession ofthe lands in question be dismissed. It was contended by him that theCourt fee payable on the appeal should be ascertained by deductingRs. 12,000 from the market value of the lands. The learned Judgerejected this contention, and pointed out that the appellant “ seeks tohave the decree of the lower court, which directed the possession of thelands to be given to the other side, set aside. It is clear that in such acase the subject-matter of the appeal is the land and not any money. ”This decision, if applicable at all, seems to support the case for theappellant on the point we are considering. But my view is that thesecases have hardly any application under our stamping law in which thereis no classification of suits on the lines of the Indian Court Fees Act andin which a suit remains throughout the proceedings, so far as the localcourts are concerned, in the class in which the pleadings placed it, unless,of course, an order of the court at a relevant stage of the case put it in aclass of higher or lower value. The ruling in the case of Sinnetamby v.Tangamma1 supports this view.
For these reasons I hold that the preliminary objection fails, and Ioverrule it.
Kedneman J.—I agree.
Objection overruled.