SHEOBHAJAN SINGH Vs. MANIK CHAND SAHU

JUDGEMENT

(1.) This is a reference under Section 5, Court-fees Act. The facts are very simple A suit was brought for recovery of possession of certain property, and mesne profits were claimed from the date of the institution of the suit up to the date of the judgment and also for the future period up to the date of recovery of possession. In accordance with practice no court fee was paid or claimed -upon these future mesne profits. The suit was dismissed by the trial Court, but in the lower appellate Court the suit was decreed, except as regards the claim to mesne profits, which was rejected. The defendants came to this Court in second appeal, and the plaintiffs filed a cross-appeal against the refusal of the Court to decree mesne profits. This cross-objection was not valued or stamped at all, and the question which has been referred to me as Taxing Judge is what court-fee is payable, if any?

(2.) The Stamp Reporter suggested that if it was not possible to estimate the subject-matter in dispute at a money value, Art; 17 (vi) of Schedule 2, Court-fees Act should be applied and a court-fee of Rs. 18-12-0 paid: The taxing Officer, on the other hand, thinks that the cross objector should be asked to make an estimate of tie amount of mesne profits for to period between the institution of the suit and the date of the decree of the lower appellate Court, and should pay ad voleram court-fees thereon.

(3.) In nay opinion, the learned taxing, officer has taken the correct view. It is true that when a plaintiff future mesne profits he is not required to make any estimate thereof, or pay 1 any court-fee, the obvious reason being that: as the duration of the litigation is unknown there is no possibility of making any estimate even approximate The same principle will apply in appeal with regard to mesne profits which are still future in full sense, that is to say, for a period between the date of the decree appealed against and the eventual recovery of possession. But it will, in my judgment, not apply to mesne profits for the period between the institution of the suit and the decree Here the analogy is, I think, with antecedent mesne profits. When a plaintiff claims mesne profits up to the date of the institution of his suit he if required to make an estimate of the probable amount and pay court fees thereon, because he knows the land and its value and the period is also fixed. Under Art, 1 of Schedule i, Court-fees Act; a memorandum of appeal has to bear a court-fee stamp; calculated on the value of the subject matter in dispute in the appeal.