KUDAU MUNNILAL Vs. HALKAI MUNNILAL PATEL

JUDGEMENT

(1.) THE Taxing Officer has referred the question regarding payment of court fees on this appeal, more particularly as to whether separate court-fees is payable on the amount of costs awarded.

(2.) THE learned trial Judge in a suit for partition and separate possession has held that plaintiff has got I /3rd share in one house, agricultural land and pump set with accessories and the defendants 1 and 2 also have got 1 /3rd share each, each has to be given possession of his 1 /3rd share. The plaintiff's claim of partition regarding other properties has been disallowed. The defendant No. 1 has preferred this appeal against the preliminary decree of partition and he has paid court-fees of Rs. 270 only. The defendant No. 1 has valued the house at Rs. 6,000, the land at Rs. 15,000, but fixed court-fees of Rs. 30 has been paid because the claim is only for declaration of title, and the pump set with accessories at Rs. 4200. The value of his 1 /3rd share in the house and pump set with accessories comes to Rs. 2,000 and 1400 respectively, i. e. Rs. 3400. The appellant in his application in this Court wants to value his share in the house at Rs. 2,000 but paid court-fees on half valuation, that is Rs. 100 on the valuation of Rs. 1000 only, on pump set with accessories 1 /3rd share valued at Rs. 1400, he has paid court-fees of Rs. 140 and on land he has paid court fees of Rs. 30 i. e. for mere declaration, that is in all court-fees of Rs. 270 has been paid. In the memo of appeal the appellant in ground No. 5 has specifically challenged the award of costs of Rs. 3968. As such, the appellant is challenging the amount of costs awarded which is apart from other claims in appeal. The contention of the appellant is that no court-fees is payable on the amount of costs awarded and for this purpose he relied on a Single Bench decision of the Calcutta High Court in Ashutosh v. Satindra Kumar, AIR 1950 Cat. 296.

(3.) THE learned Taxing Officer has rightly pointed out that there is a direct decision of the Nagpur High Court in Seth Ratanchand v. Gaindsingh, AIR 1937 Nag. 95. In that case the question was regarding payment of court-fees on future interest. Vivian Bose J. , (as he then was) held that the court-fees was payable only on that portion of the future interest which could be computed and ascertained, that is, the period between the date of the decree and the date fixed for the payment of first instalment which has been defaulted. He has further observed that a similar position arises on the question of costs. When the decree or some portion of it is challenged, it is not necessary to insert a ground about costs and pay court-fees on it, but if the appeal is about costs alone or if some specific sum relating to costs is called in question, court fees has to be paid ad-valorem. It is urged by the learned counsel for the appellant that this is obiter and not binding on this Court. May be the question relating payment of cost was not in issue in that case but the reasonings given have a persuasive value and I am unable to take a contrary view. This also seems to be the consistent view taken by other High Courts. Where an appeal as to costs is distinct and separate from other parts of the appeal, court-fees must be paid ad-valorem on the costs in dispute Rawlins v. Lachmi Narain, 3 Pat. L J 443= (1978) Pat C W N 264=44 I C 50. Debendra v. Sona Kaur, 21 AH W N 21. Krishuaji v. Babuji, 1891 P J 52. Valiram v. Karachi Bank, 23 S L R 277=104 I C 391 = A I R 1927 Sind 252. Fateh Singh v. Manj Rani, AIR 1934 Lah. 739=35 P L R 650. and Jagannath v. Bhola, A I R 1945 Pat. 145 = 23 Pat. 905. See m. N. Basil on Court Fees and Suits Valuation Acts, 1965 Edition, page 475. The view of Vivian Bose J , also finds support from decision of the Supreme court in State of Maharashtra v. Mishrilal, 1964 Mh L J 120= AIR 1964 SC 457. The Supreme Court has held that the amount of pendente lite interest decreed is not to be included in the amount or value of the subject matter in dispute in appeal for the purposes of Article 1 of Schedule 1 of the Act unless the appellant specifically challenges the correctness of the decree for the amount of interest pendente lite independently of the claim to set aside that decree. The Calcutta case relied upon is clearly distinguishable. The opinion of Foxburgh J. , is based on the practice in the Calcutta High Court that where a part of the main subject matter is in dispute in appeal, even though there is a specific dispute about the costs because they have not followed the event, no fee is charged; in other words the amount of costs is not taken to be part of the subject matter in dispute. He has, therefore, observed that the practice should be consistent and thus where an appeal relates only to the question of costs, no court-fees is payable on the costs as amount of costs is not to be taken as part of the subject-matter in dispute. Similarly, the decision of Shiv Dayal J. , in Hiralal v. Ramswaroop, 1961 JLJ 1502. is also distinguishable. In that ease the prayer was that judgment and decree in appeal be set aside and the plaintiff's suit be decreed with costs. Since no specific amount of cost was challenged nor any separate ground was made regarding any specific amount of cost but incidentally along with other reliefs cost was claimed, it was held that no separate court-fees was payable on the prayer of cost.