Court dismissed appeal for non-maintainability due to incorrect valuation. Directed return to lower court for re-filing in appropriate forum with two weeks time. Excess fees refund permitted.
Appeal returned to lower court for re-filing; two weeks time granted; refund of excess fees permitted.
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The Hon’ble Sri Justice C.V.Nagarjuna Reddy
C.C.C.A.No.37 of 2014
Dated 11.07.2014
Between:
Mr.M.S.Farooq
…Appellant/defendant
And
Mr.Mohd.Fazi ur Rahman
…Respondent/plaintiff
Counsel for the petitioner: Mr.Mirza Nisar Ahmed Baig Nizami Counsel for the respondent: Mr.D.Madhava Rao
The Court made the following:
Order:
At the interlocutory stage, the appeal is taken up for hearing and disposal with the consent of the learned Counsel for both parties.
This appeal is filed against judgment and decree, dated 22-01-2014, in OS.No.2594 of 2014, on the file of the Court of the learned IV Senior Civil
Judge, City Civil Court, Hyderabad.
The respondent has filed the abovementioned suit for eviction of the appellant from the suit schedule premises. The lower Court, while granting decree for eviction, permitted the respondent to file a separate application for mesne profits.
Mr.D.Madhava Rao, learned Counsel for the raised an as to the respondent, objection maintainability of appeal before this Court and submitted that the appellant has not properly valued the appeal and that he has included the value of the relief of mesne profits also while valuing the appeal, though no relief therefor has been granted and consequently, no decree therefor has been passed. Mr.Mirza Nisar Ahmed Baig Nizami, learned Counsel for the appellant, fairly did not dispute the facts that the lower Court has not granted decree for mesne profits and that it has only permitted the to file a for respondent separate application ascertaining the mesne profits. Under Section 49 of the Andhra Pradesh Court Fees and Suits Valuation Act, 1956, the fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject matter of the appeal. The subject matter of the
appeal being only decree for eviction, in the absence of any decree for mesne profits, the appeal ought to have been valued only to the extent of decree for eviction. It is admitted that if such valuation is made, the District Court will have pecuniary jurisdiction for entertaining the appeal. In this view of the matter, the Registry is directed to forthwith return the appeal to the learned Counsel for the appellant for presentation before appropriate Court. Since the appellant has pursued the appeal before wrong forum, he is granted two weeks’ time for filing the appeal before the appropriate Court. If the appeal is filed within the above stipulated time, the same shall be entertained by the lower Court without raising any objection on limitation. The appellant is permitted to make a claim for refund of excess Court fees before the lower Court.
______________________ (C.V.Nagarjuna Reddy, J)
Dt: 10th July, 2014 LUR
1 issue framed by the court
Whether the appeal was maintainable given the appellant had improperly valued it by including disputed mesne profits in the valuation despite no decree being passed thereon.
1 provisions across 1 enactments
Mr.M.S.Farooq
Mr.Mohd.Fazi ur Rahman
C.V.Nagarjuna Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
