Bilal Nazki, J.
1. These are two appeals filed against the preliminary decree passed on 8.9.1994 and final decree passed on 11.11.1997 in O.S. No. 314 of 1985 on the file of I-Addl. Sub-Ordinate Judge, Vijayawada. Therefore, both these appeals can be disposed of by the common judgment. The parties will hereinafter be referred to as they are arrayed in the suit.
2. The plaintiff filed a suit being O.S. No. 314 of 1985 on 19.7.1985 for settlement of bills by defendants relating to seven works executed by him and for recovery of the amount found due to him. The defendants were set exparte and a preliminary decree was passed on 8.9.1994 by which the defendants were directed to settle the amounts due under the bills and a Commissioner was appointed to settle the accounts. Before the Commissioner, Assistant Government Pleader filed appearance for 2nd defendant and Assistant Director of 2nd defendant was examined as D.W.1 and Exs.B1 to B11 were marked through him. Managing Partner of the plaintiff was examined as P.W.1 and he exhibited Exs.A32 to A39. Exs. A1 to A31 had already been exhibited in the suit itself.
3. The learned counsel for the plaintiff has taken a preliminary objection that the appeal filed against the preliminary decree has been filed beyond time and therefore a petition for condoning the delay of 1124 days in filing the appeal has been filed which is yet to be decided. He submits that if the delay is not condoned, then the only question which would remain to be decided is whether final decree was legal and the scope of the appeal would considerably be reduced. He submits that this Court passed an order on 11.3.1999 which sufficiently shows that the delay has not been condoned and the consideration of the application for condoning the delay has been postponed. Therefore, the preliminary decree having become final would be binding on the defendants. The order passed by this Court on 11.3.1999 in the condone delay petition reads as under,
'C.M.P. No. 21453 of 1998
This is a petition to condone the delay of 1124 days in preferring the appeal against the preliminary decree. There was a delay of 187 days in preferring the appeal (ASSR 74037/98). We have condoned the delay and directed that appeal to be numbered.
We consider it appropriate and proper to direct the condone delay petition in this appeal to be posted along with AS (SR) 74037/98 (preferred against the final decree).
Accordingly it is ordered.'
4. The learned for the plaintiff submits that in view of the judgment of the Supreme Court reported in P.K. Ramachandran V. State of Kerala, : 1997ECR785(SC) and the judgment of this Court reported in P.K. Ramachandran V. State of Kerala, 1999 (1) ALT 32the delay cannot be condoned.
5. Now before coming to the question whether the delay could be condoned or not, it would be appropriate to examine the legality of the final decree passed. The suit was laid for the following reliefs,
(i) for settlement of bills by the defendants relating to seven works executed by the plaintiff and for recovery of the amount found due to the plaintiff;
(ii) Costs of the suit; and
(iii) Such other reliefs as this Honorable Court deems fit and proper in the circumstances of the case.
6. In para-14 of the plaint the plaintiff laid down the following relief,
'Particulars of suit claim:- Relief for settlement of bills relating to works entrusted to and done by the plaintiff, the amount payable is estimated tentatively at rupees seventy thousands.'
7. The judgment passed by the trial Court is very brief and it reads as under,
'Suit for recovery of Rs.70,000/- being the amount due by the defendants for 1) construction of sheds, 2) construction of common facility center 3) food mixing plant 4) construction of over-head storage tank 5) construction of poultry sheds 6) construction of low cost housing and 7) leather tanning complex at Machilipatnam done by the plaintiff with subsequent interest and for costs of the suit.
All the defendants called absent. No representation. Defendants set exparte. P.W.1 examined already. Suit claim is proved. Suit is preliminary decreed with costs as prayed for.
Exs.A1 to A28 marked.'
8. Thereafter preliminary decree was passed in the following terms,
(1) 'That the defendants be and are hereby directed to settle the amounts due to the bills relating to seven works;
(2) That Sri K.V. Sastry, Advocate-Commissioner be and is hereby appointed to settle the accounts and his fee is fixed at Rs.2,000/- payable by the plaintiff directly;
(3) And on submission of the report of the Commissioner, the defendants do pay to the plaintiff the amounts so found due to him for payment of requisite court fee;
(4) That the defendants do pay to the plaintiff the sum of Rs.2,788/- towards institutional costs of the suit;'
9. Now the learned counsel for the defendants/appellants submits that even without going to the preliminary decree, the final decree cannot sustain, as it is manifestly illegal. The operative portion of the judgment passed in the final decree proceedings is reproduced below,
'In the result, final decree is passed for Rs.6,84,234.90 with costs in favour of the plaintiff and against the defendants 1 and 2. The plaintiff shall pay the deficit court fee on the said amount after deducting the value of C.F. already paid on Rs.70,000/-. The suit against D-3 is dismissed without costs. Plaintiff is entitled for interest at 6% P.A. over the said sum from the date of suit.'
10. The final decree was passed in the following terms,
(i) That the defendants 1 and 2 do pay to the plaintiff a sum of Rs.6,84,234-90 with subsequent interest at 6% P.A. thereon from the date of suit i.e., 19.7.1985 till the date of realization; and do also pay a sum of Rs.24,719/- towards costs in the suit;
(ii) That the suit in so far as it relates to the 3rd defendant is concerned be and the same is hereby dismissed and the 3rd defendant do be his own costs.
(iii) And the defendants 1 and 2 do bear their own costs of Rs.14,420/-.
(iv) And that the plaintiff be and hereby is directed to pay the deficit court fee payable on the amount of Rs.6,84,234-90 after deducting the court fee already paid in the suit.'
11. So the suit claim was tentatively fixed at Rs.70,000/-, but a final decree was passed for Rs.6,84,234-90 ps. Now in the first instance we fail to understand how could a contractor file a suit for accounts, because while executing the works by himself, he knew what works were conducted, how much he was paid and how much he has not been paid. The preliminary decree which was an exparte decree was passed on a judgment which was not a reasoned judgment. The trial Court had only mentioned that the defendants were set exparte, therefore the decree as prayed for is granted. Let us assume that that judgment was final. Now coming to the question would the trial Court in the final decree proceedings pass a decree which was ten times more than the estimated value given by the plaintiff in his plaint. The learned Advocate General has referred to the judgment of a Full Bench of this Court reported in C.C. Reddy V. K.C. Reddy, 1968 (2) An.W.R. 616. This judgment was given on a reference made to the Full Bench. Three questions were referred to the Full Bench. We are concerned with two questions.
(1) Whether in a suit governed by Sections 32 and 33 of the Andhra Court Fees and Suits Valuation Act, 1956, in which the plaint is registered, the amount estimated in the plaint is liable to be reviewed, and as a consequence the plaintiff is bound to amend the valuation and pay higher Court-fee?
(2) If the answer to the first question is in the affirmative, whether the liability to amend the plaint and pay the additional Court-fee should be confined only to cases of deliberate under-estimation of the amount or sham valuation, or extends to every case, where the defendant contends that the amount sued for is inaccurate and not approximate; and also whether the investigation can extend beyond the averments in the plaint?
12. Then the Court, while dealing with these questions and considering whole law on the subject, held,
'the word 'estimate' involves an active mental element and that the plaintiff is bound to state the approximate amount as near reality as possible and not give an arbitrary figure. It is often difficult for the plaintiff to state precisely the amount for which he hopes to obtain a decree in a suit for account. It is even more difficult for the Court to go behind the plaintiff's valuation and say that the relief is undervalued. But these difficulties do not conclude the matter. In our opinion, the Court Fees Act read along with the relevant provisions of the Civil Procedure Code, does not permit the plaintiff to be the sole arbiter of the amount at which the relief sought is valued. The choice of the forum and the liberty to pay nominal fee are not to be left to the caprice of the plaintiff. The difficulty experienced by a plaint in giving a precise valuation does not entitle him to arbitrarily and deliberately undervalue the relief sought by him. He is bound to make a genuine and honest effort to value the relief; if he does not do so and if the valuation given by him bears no relation to reality the Court can and indeed must intervene and exercise its powers under Order 7, Rules 10 and 11, of course with due regard and proper appreciation of the difficulty of the plaintiff.'
13. Coming to the second question, the Court stated,
'we have already referred to the inherent difficulty of estimating the value of the relief in a suit for accounts. There is bound to be an element of speculation and an element of uncertainty. But there must be a genuine effort to estimate. The estimate should not be a deliberate-underestimation; it should not be a pretended estimate or an indifferent estimate. It should be a real estimate acceptable to a prudent and reasonable man. It is not possible to foresee the several causes which may result in under-estimation. Whatever may be the reason for the under estimation whether it is deliberate, or whether it is the result of indifference, or inaccurate calculation, or any other case, the Court has the power to amend the valuation if the estimate is one which is not acceptable to a prudent and reasonable man. The estimate being what should be acceptable to a reasonable man and since a reasonable man would make allowances for slight errors and little inaccuracies, so will a Court deal with the plaintiff's estimate. This is our answer to the first part of the second question. The second part of the second question in the form in which it is put is capable of an easy answer. The investigation must necessarily extend beyond the averments in the plaint. To begin with the decision of the Court under section 11 (i) (a) is to be based not only on the allegations in the plaint but also on the materials furnished by the plaintiff. Next the defendant is given a right to question the valuation and the Court fees. This right will have no substance if the investigation is to be confined to the allegations in the plaint. There is then a provision for an enquiry under section 16 of the Act. As we have said, the second part of the second question in the form in which it is put is easily answered. But the more difficult question is what is the scope of the investigation? Surely the investigation cannot extend to a preliminary taking of accounts. If at the very threshold of the suit the Court is to embark upon an investigation of the accounts, then practically the entire suit will have to be decided. If the investigation does not extend so far, to what does it extend? It certainly extends to all materials furnished by the plaintiff, all admissions wherever and whenever made by the plaintiff including admissions made in interlocutory matters in the suit, all documents produced by the plaintiff or to which reference is made in the plaint, all undisputed facts brought to the Court's notice by the defendant, and all the other facts which may be established without going into the main controversy between the parties. It is not possible or desirable to further define the scope of the investigation, but suffice to say that the investigation must not encroach upon the principal issues to be decided at the trial. All such matters must be decided before the trial begins within the meaning of Order 18 as enjoined in sections 11(2) and 11(4) of the Court Fees Act.'
14. So it is manifest that at any point of time the trial Court has not made an endeavor to see whether the court fee has properly been paid and valuation of the suit has been estimated properly. In our view, the suit was speculative itself and was termed as suit for accounts, although it was suit for recovery of money because in a relationship between the contractor and the Government the contractor had executed the works. He knew how much amount was outstanding from the Government in his favour. Therefore the suit for accounts could not have been laid in the first instance. He had made the constructions, he had supplied the materials and he had the contract with him. Therefore he could have made a claim which would have been definite. Even if we do not go into the question as to whether the plaintiff could have laid a suit for accounts and not for recovery of money, even then it would be prudent to expect that his claim would be very near to the real outstanding. He laid a suit in which he claimed the amounts tentatively at Rs.70,000/- and final decree was passed for almost Rs.7.00 lakhs.
15. There is a judgment of the Supreme Court reported in Buta Singh V. Union of India, : [1995]3SCR359 , which pertains to a case under Land Acquisition Act. After an appeal was heard by the High Court, the claimants got an impression that the High Court was likely to enhance the compensation. The matter had been reserved for judgment. Thereafter an application came to be filed seeking permission to pay an additional court fee so that the claim made could be enhanced. This was rejected by the High Court. The matter went to the Supreme Court and the Supreme Court rejected the contention and recorded in para-9,
'After the arguments were heard in the appeals, an impression obviously gained that the appeals would be likely to be allowed enhancing the compensation. We find that the method adopted by the claimants should not be encouraged. There are no bona fides on their part. The aid of Section 149, could be taken only when the party was not able to pay Court-fee in circumstances beyond his control or under unavoidable circumstances and the Court would be justified in an appropriate case to exercise the discretionary power under S. 149, after giving due notice to the affected party. But that was not the situation in this case. Under the relevant provisions of the Court-fee Act applicable to appeals filed in the High Court of the Punjab & Haryana, the claimants are required to value the appeals in the MOAs and need to pay the required Court-fee. Thereafter the appeal would be admitted and the notice would go to the respondents. The respondents would be put on notice of the amount, the appellant would be claiming so as to properly canvass the correctness of the claim or entitlement. The claim cannot be kept in uncertainty. If in appeal under Section 54 of the Land Acquisition Act the amount is initially kept low and then depending upon the mood of the appellate Court, payment of deficit Court-fee is sought to be made, it would create unhealthy practice and would become a game of chess and a matter of chance. That practice would not be conducive and proper for orderly conduct of litigation.'
16. Following the same principles we feel that if it is allowed, it will be a beginning of an unhealthy practice in litigation of this nature. Therefore, we are of the view that even if the preliminary decree was not reviewed, even then the final decree could not have been passed for an amount which was ten times more than the estimated claim of the plaintiff in his suit. Section 32 of the A.P. Court-Fees & Suits Valuation Act, 1956 relates to suit for accounts which lays down,
'32. Suits for Accounts:- (1) In a suit for accounts, fee shall be computed on the amount estimated in the plaint.
(2) Where the amount payable to the plaintiff as ascertained in the suit is in excess of the amount as estimated in the plaint, no decree directing payment of the amount as so ascertained shall be passed until the difference between the fee actually paid and the fee that would have been payable had the suit comprised the whole of the amount so ascertained, is paid.
(3) Wherein any such suit it is found that any amount is payable to the defendant, no decree shall be passed in his favour until he pays the fee due on the amount.
(4) Whether or not a decree is passed under sub-section (2) or sub-section (3), the fee payable under either of the said sub-sections shall be recoverable as if it were an arrear of land revenue.'
17. We have already referred to the judgment of the Full Bench of this Court and in the present case we find that the plaintiff could have estimated correct value of the suit and could have claimed the exact amount which was due to him. For these reasons, we find that the final decree could not have been passed exceeding Rs.70,000/-. We are fortified in our view by the judgment of the Supreme Court reported in Abdul Hamid v. Abdul Majid, : [1988]3SCR507 . The present suit is basically a suit for recovery of amounts and as we have already stated hereinabove that it was wrong to construe this suit to be a suit for accounts, but even if it is accepted that it was a suit for accounts, even then the plaintiff could not value the suit arbitrarily. In a suit for accounts under a partnership firm the plaintiff stated that he was entitled to huge profits in the partnership and it was also found that he was entitled to amounts worth lakhs, but he valued the suit at Rs.150/-. It was contended before the Supreme Court that in terms of Section 7(iv)(f) of the Court Fees Act it was the sweet-will of the plaintiff to value the suit at any amount, but the Supreme Court repelled the argument in the following words,
'5. We are afraid, the interpretation put by the learned counsel on the decisions of this Court is not correct and cannot be accepted. None of the two cited judgments relied upon by Mr. Chaterjee helps him. It is true that in a suit for accounts the plaintiff is not obliged to state the exact amount which would result after taking all the accounts and he may, therefore, put a tentative valuation upon the suit, but he is not permitted to choose an unreasonable and arbitrary figure for that purpose. At p.392 of the judgment in Mennakshisundaram Chettiar V. Venkatachalam Chettiar : [1979]3SCR385 this Court while taking note of the plaintiff's right to give a tentative valuation on the suit, observed, (at p. 993 of AIR):
'The plaintiff cannot arbitrarily and deliberately undervalue the relief.' In Smt. Tara Devi V. Sri Thakur Radha Krishna Maharaj : AIR1987SC2085 : '.....The plaintiff, however, has not been given the absolute right or option to place any valuation whatever on such relief and where the plaintiff manifestly and deliberately underestimates the relief the court is entitled to examine the correctness of the valuation given by the plaintiff and to revise the same if it is patently arbitrary or unreasonable.....'
18. Coming to the application seeking condonation of delay in filing of the appeal against the preliminary decree, we do not agree with the learned counsel for the appellants that there were sufficient grounds to condone the delay. We have gone through the affidavit. Only it has been stated in the affidavit that the appellants were under the bona fide belief that a preliminary decree could have been challenged after the final decree proceedings were over. This can hardly be believed and there is nothing on record that such an opinion was at any stage given to the appellants.
19. For the reasons given hereinabove we uphold the preliminary decree and dismiss the application seeking condonation of delay in filing the appeal against the preliminary decree. We are fortified in our view in dismissing the application for condoning the delay by the judgment of the Supreme Court reported in P.K. Ramachandran V. State of Kerala (1st supra) and the judgment of this Court reported in P.K. Ramachandran V. State of Kerala (2nd supra). However, we modify the final decree to the extent that the plaintiff shall be entitled to only Rs.70,000/- with interest @ 6% P.A. from the date of decree till the date of final realization. A decree be drawn accordingly. Appeals are accordingly disposed of.