HIRALAL Vs. RAMSWAROOP

JUDGEMENT

(1.) Hiralal and four others instituted a suit for the recovery of Rs. 2236-7-0 against Ramswaroop and two others in the Court of the Civil Judge Second Class, Gwalior. The trial Judge dismissed the suit and allowed costs to defendants No. 1 and 2. The plaintiffs took an appeal before the District Judge, Gwalior with the prayer that the judgment and decree under appeal be set aside and that the plaintiff's suit be decreed with costs in both the Courts.

(2.) The learned District Judge ordered the appellants to pay court fee on the amount of costs awarded to the defendants. The appellants have come here in revision against that order.

(3.) I am clearly of the view that the order of the District Judge is erroneous and court fee has been demanded which was not payable. On a memorandum of appeal court fee is to be paid on the value of the subject matter of the appeal. Costs are not added to the decretal amount so as to form a part of the value of the subject matter. Indeed costs are not part of the dispute and their allowance or disallowance is within the discretion of the Court. Court fee is, therefore not payable in of costs entered in the decree from which the appeal is filed. The prayer in appeal that costs be allowed to the appellants in a case as the present one is merely incidental. In the present case the appellants prayed that a decree be passed in their favour with costs in both the Courts. That only meant that costs be awarded to the appellant only in the event of the judgment and decree of the trial Court Judge being set aside. This is what is meant by an incidental relief. Such a case is apart from that where independently of any other relief which an appellant seeks, a distinct relief is sought contending that costs of the parties have not been properly assessed. This is also not a case where a successful party is disallowed costs and he files an appeal against that disallowance. Here the simple question is whether separate court fee is payable on the amount of costs when a suit is dismissed with costs and the appeal by the plaintiff is directed against the entire decree and is not confined to costs. My answer is emphatically in the negative. I will content myself by recalling the case of Doorgadoss Chowdary Vs. Ramanath Chowdary. 1859 1 (MIA) 262. In that case the Privy Council was concerned with the question whether in order to reach the appealable value for an appeal to the Privy Council costs awarded to the successful party cannot be included in the value of the subject matter of the appeal. The question was answered in the affirmative. It was pointedly observed in that case that costs of a suit were no part of the subject matter in dispute. See also Valiram Vs. Karanchi Bank, 1927 AIR(Sind) 251 and Nilmudhdas Vs. Bishambardas 13 MIA 85.