KURIEN Vs. VARKEY

JUDGEMENT

(1.) This reference raises the question as to whether any court fee is leviable on a memorandum of cross objection seeking to set aside a lower courts decree negativing a claim for mesne profits subsequent to the date of the institution of the suit, and if so what the basis of the levy should be. Respondents 1 and 2 brought the suit giving rise to the appeal for a declaration of their right to the suit properties and for their recovery with future profits at the rate of Rs. 250/- per year. An alternative relief claimed in the suit was that in case it is found that the plaintiffs are not entitled to recover possession the court will grant them a declaration that they are entitled to recover Rs. 2800/- by way of first charge over the properties and also allow them to realise the same with interest thereon at 12 per cent per annum.

(2.) The cross objection is not valued or stamped at all. When the office raised objection as to the want of court fee the respondents filed a statement to the effect that since the grounds raised in the memorandum of objection relate to mesne profits and interest accruing subsequent to the suit, no court fee is liable to be paid on the same. Hence this reference.

(3.) The question for decision is whether the respondents contention is right. S.2 of the Travancore Cochin Court fees Act, 1125 (S. 6, Indian Act) enacts inter alia that no document of any of the kinds specified in the First or Second Schedule of the Act as chargeable with fees shall be filed, exhibited or recorded in any Court of Justice unless in respect of such document, there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document. S.4 (Indian Act. S.8) states that the amount of fee payable on a memorandum of appeal or of cross objection shall be calculated as if it was a suit under the provisions of S.3 for the reliefs claimed under the memorandum of appeal or of cross objection. S. 3 (Indian Act, S. 7) deals with computation of fees payable in certain classes of suits. Art. 1, Schedule (1) (the corresponding provision in the Indian Act bears the same number) prescribes that a memorandum of cross objection must bear a court fee stamp calculated on the value of the subject matter in dispute. The point therefore is what the subject matter of the dispute raised by the cross objection is.