ISMAIL KHAN Vs. SHANKARLAL CHOURASIA

JUDGEMENT

(1.) This is a reference by the Taxing Officer for opinion of this Court as to what court-fee is required to be paid on the cross-objection preferred by the respondent plaintiff arising out of second appeal filed by the defendant-tenant against the decree for eviction passed against him under Section 12 (1) (c) of the M. P. Accommodation Control Act, 1961, for subletting. The plaintiff had also sought eviction under 12 (1) (a) and (f) on the ground of arrears of rent and bona fide need for business purposes which has been disallowed by the Courts below.

(2.) The respondent has filed cross-objection under Order 41, Rule 22, C. P. C. and is praying for a decree on these two additional grounds also and has affixed a court-fee stamp of Rs. 7.50 which is payable on a miscellaneous appeal. According to the Taxing Officer, since the plaintiff is seeking eviction on two additional grounds also, he must pay ad valorem court-fee under Article 1 of Schedule 1 of the Court-fees Act as it cannot be said that the respondent is simply supporting the decree because he is claiming a finding in his favour on two ether grounds for eviction.

(3.) After having heard the parties, I am of the opinion that the Taxing Officer was not right in demanding ad valorem court-fee on the cross-objection under Article 1 of Schedule I of the Court-fees Act which has no application to the cross-objection preferred by the respondent-plaintiff. Order 41, Rule 22 has been amended by the amending Act No. 104 of 1976. Previously there was no provision for filing cross-objection against a finding but this has now been provided by adding explanation to Rule 22 (1) that a respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of the respondent. Rule 22 (1) provides for two types of cross-objections, one against a finding and the other against a part of the claim disallowed and for which appeal could have been preferred. According to me, so far as filing of cross-objection against any finding is concerned, even without filing a cross-objection the respondent is entitled to agitate the matter in the appellate Court and the amending Act makes no change in the law which existed prior to the amendment. The amendment only provides for filing of cross-objection against a finding also but for such a cross- objection ad valorem court-fee is not payable and such a cross-objection is filed only to bring to the notice of the appellate Court and the opposite party that such a finding is going to be challenged in the appeal and so this has to be treated as an application and, as such, would be chargeable as an application under the Court-fees Act,