TMI Blog1960 (12) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 9650. They succeeded in the court of the first instance. When the petitioners, (defendants in the suit) filed appeals to this Court, they adopted that value, as indeed they were bound to do, for the purpose of payment of the necessary court-fee for the appeals. Petitioners now state that the aforesaid value, as estimated by respondents 1 and 2 and even as adopted by them, was erroneous, and that the real value of the Properties was and continued at all material times to be more than ₹ 20,000. It is contended that the petitioners should not be allowed to go behind the value adopted by them in the appeals and show what the real value is. Different views have been expressed on the question whether the petitioners could be permitted to do so. In Venkatarayudu v. Venkanna, AIR 1927 Mad 862, Ramesam and Venkatasubba Rao JJ. held that a plaintiff who adopted a particular value in regard to the subject-matter of a suit in the plaint would not be absolutely precluded from showing the real value when a question arose in connection with has rights of appeal to the Privy Council. A different view was taken recently by Basheer Ahmed Sayeed and Subrahmanyam JJ. in S. C. P. Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 123(a) or (b) or one who opposes the grant of such certificate wants to allege that the value given or adopted by him at an earlier stage of the litigation is not the true or real value, he would undoubtedly be taking an inconsistent position. It is undesirable that a party should be allowed to take up inconsistent positions in a court of law. That rule is a rule of prudence and in its application has its limitations. An erroneous statement as to value made at an earlier stage cannot deprive a party of a right; it will only prevent a party from proving the real value in certain circumstances. 4. Before considering the circumstances under which a Party would be held precluded from going behind his own earlier statement of the value, it is necessary to consider the relevant statutory provision which obliges him to give the value. 5. Order VII, Rule 1 C. P. C. prescribes the particulars to be contained in a plaint. Clause (1) thereof requires that the plaint should contain a statement of value of the subject-matter of the suit for the Purpose of jurisdiction and of court-fee so far as the case admits. In the case of appeal, Order 41, Rule 1(2) (Madras Amendment) presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al value of the subject-matter of the suit was such that the Court entertaining the suit would have no jurisdiction, it would be his duty to Plead that the value given in. plaint was wrong. It would follow that, even though the valuation given in the plaint was erroneous, there would be no duty on the defendant to raise a plea as to the real value, if even by adopting the real value the jurisdiction of that Court will not be affected. Order VIII, Rule 2 refers only to a Plea relating to the maintainability of the suit and not to one for safeguarding a right of appeal in the, possible event of the defendant failing. Thus questions of court-fee apart, where the determination of the real value of the subject-matter of the suit would not involve a change of forum of the suit the defendant would be under no obligation to raise objections to valuation, though he would have an option to do so. 8. On behalf of the respondents, it is contended that a defendant is in all events bound to challenge an incorrect valuation of the plaint, and if he fails to do so, that value should be deemed to have been accepted by the Court and on principles analogous to res judicata. Mr. T.M. Krishnaswam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the plaint value, should be deemed to have impliedly overruled a plea that the value was higher, as it has deprived him of the legitimate costs on the basis of a correct value. Support was sought for the argument from the decision in Brajasunder Deb v. Rajendra Narayan, AIR1941Pat269 . In that case the claim in the trial court was valued at less than ₹ 10,000. That valuation was adopted in the High Court. During the pendency of the appeal in the High Court, the valuation was increased without objection by the defendant. In the appeal, costs were awarded to the defendant, the successful party, on the basis of the revised valuation, when the plaintiff wanted to appeal to the Privy Council on the basis of the revised valuation, the defendant pleaded that the new valuation should not be accepted. The learned Judges rejected his contention on the ground that the revised valuation was accepted by the defendant, and he could not go back upon such acceptance. While dealing with that question the learned Judges stated : As the present valuation of the suit was accepted without demur and a decree for costs' based on such valuation actually enforced, it is not, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion then is, whether a party giving or adopting a particular value at an earlier stage of suit or appeal could he said to be estopped from showing its real value when his right to obtain a certificate under Article 133 has to be determined. 12. A mere erroneous valuation either for jurisdictional or fiscal purposes without more (except in case where the adoption of the real value could alter the forum) cannot amount to a representation on which it can be said that the opposite party would suffer a detriment. Mr. T. M. Krishnaswami Aiyar, conceded that to such a case Section 115 of the Indian Evidence Act would not apply. But learned counsel relied on the familiar principle that a Person who made a representation on the faith of which another had acted should not afterwards be allowed to contradict the former statement in order to profit by the conduct which he had induced, and contended that when the defendant in the instant case took advantage of filing an appeal to this Court at a lower valuation by paying a lower court-fee, he should be held to have secured an advantage, and it would not, therefore, be open to him to change his position and say that the value of the subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m observed that the phrase was of Scottish origin and was no more than a picturesque synonym for the ancient equitable English doctrine of election which was distinct from the common law principle of election of remedies and one confined in its application to wills, deeds and other instruments inter vivos. The principle was stated to be one of the presumed intention of the testator or the author of the instrument, namely, that a legatee or beneficiary should not claim under the will or instrument and also adversely to it. It is essential, therefore, for the application of the rule that no person should be taken as having made an election until he had an opportunity of ascertaining his rights and was aware of the nature and extent, election being based on knowledge. Lord Atkin, referring to the subject of approbate and reprobate, observed at page 429 : In this country I do not think it expresses any formal legal concepts. I regard it as a descriptive phrase equivalent to blowing hot and cold'. I find great difficulty in placing such phrases in any legal category, though they may be applied correctly in defining what is meant by election whether at common law or in equity. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t resile, and, second, that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has pursued and with which his subsequent conduct is inconsistent . 18.The two essential elements of an election thus are (1) that the person who is ejecting should have a choice between two alternative courses and (2) he should derive an advantage by such choice. A plaintiff who makes an erroneous statement of value of the subject-matter, has certainly the choice between telling the truth and untruth; but where an erroneous statement is hot made with the object of securing an advantage, e.g. having a forum of his choice, the principle cannot apply. A defendant adopting the valuation made by the plaintiff for the purpose of filing an appeal (without more) could not be said to have a choice in the matter as he is generally bound to adopt the valuation made by the opposite party. It is difficult to accept the contention of the learned counsel for the respondent that a defendant should anticipate his losing the case in the trial-court and obtain from the Court an adjudication as to the proper valuat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sto Indro Saha v. Huromonee Dasee, 1 Ind App 84, the defendant by accepting the revised valuation of the plaintiffs derived an advantage by having his appeal before the High Court which he would not have had, had he not accepted it. In Raltayya v. Brahroayya, AIR1925Mad1223 , the plaintiff who Originally valued his suit at ₹ 10,000 and filed an appeal to this Court was precluded from saying that the valuation was incorrect when the defendant sought to file an appeal to the Privy Council on the basis of such valuation. In Vasi Reddi v. Secy. of State, 1932 61 MLJ 692 : AIR 1932 Mad 125 , the plaintiff originally valued the suit at an amount higher than ₹ 10,000. This was not objected to but adopted by the defendant who took advantage of it by filing an appeal in the High Court. But the latter contested the right of the plaintiff to appeal to the Privy Council when the High Court decided against him. Ramesam and Venkatasubba Rao JJ. held that the value given for the purpose of court-fee on the plaint should be taken to represent at least the minimum value. In Alagappa Chetty v. Nachiappan, 1923 43 MLJ 728 : AIR 1923 Mad 125 , the plaintiff who valued the suit claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the cases the plaintiffs valued the suit so as to come within the jurisdiction of a District Munsif's court. The defendant accepted the valuation and filed an appeal against the decision in the District Court and a second appeal was thereafter taken by the plaintiff who succeeded in the High Court. With a view to appeal to the Privy Council, the defendant attempted to prove at a later stage that the real value of the property was different from the one made by the plaintiff. It was hold that he could not do so as he obtained 311 advantage by adopting the lower valuation in that he was enabled to appeal to the District Court. The true principle, if we may say so with respect, was laid down in Radhikanath v. Midnapore Zamindari Co AIR1937Cal292 , where the plaintiff valued the suit at less than ₹ 10,000 and filed it in the Sub-Court. The suit was decreed and the defendant in filing the appeal to the High Court adopted the plaint valuation. He succeeded to the High Court the plaintiff applied for leave to appeal to the Privy Council stating that the real value of the property was more than ₹ 10,000. That was a case where no change of forum of the appeal was invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty at one stage of the suit or appeal will not preclude him when the question arises for the issue of a certificate under Article 133 of the Constitution. 22. We answer the question referred to us in the following manner. It would be open to any party, be he the plaintiff or defendant, to go behind the valuation adopted in the plaint or in the memorandum of appeal, as the case may be, and show, the real value of the subject-matter in dispute, except where (1) there has been a judicial adjudication of the correctness of the original valuation in such a way as to attract the principle or the rule of res judicata or (2) where the party making the original valuation or the one adopting it had an option to give that value or the correct-value and while exercising the option by giving one of such values he gained for himself an advantage or made the opposite party suffer a detriment. (This petition having been called on 7-4-61, after the expression of the Opinion of the Full Bench, the Court, Rajagopalan and Ramachandra Iyar, JJ. delivered the following Order:) Subramanya Ramachandra Iyer, J. 23. We have already held that the case raises a substantial question of law. The v ..... 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