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Surendra Singh Vs. Gambhir Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All728; 152Ind.Cas.196
AppellantSurendra Singh
RespondentGambhir Singh and anr.
Excerpt:
- - ' 4. the argument is that the schedule clearly sets out that the plaint or memorandum of appeal in a declaratory suit where no consequential relief is prayed are exempt from advalorem fee, whereas the cross-objection for some reason has not been made so exempt. it must be admitted that the argument is perfectly sound and that as the schedule stands the argument is perfectly correct. this clearly indicates that the act did not intend that there-should be any advalorem court-fee where there was no consequential relief in a declaratory suit......property. a first appeal was brought by the defendant in this court and the plaintiffs have filed cross-objections in regard to the declaration which was not granted by the lower court. the cross-objection sets out that the value of the objection is rs. 26,758-5-0, and that the court-fee has been paid on rs. 20. in the case of the plaint and in the case of the memorandum of appeal there was a court-fee paid for a declaratory suit, that is, rs. 50 for the plaint and rs. 30 for the appeal. it is not contested that under the court-fees act,, schedule 2, article 14, the proper court-fees for the plaint and for the memorandum of appeal are the amounts which have been paid and that under that article advalorem court-fees are not required,, the rate being rs. 10 as the proceedings took place.....
Judgment:
ORDER

Bennet, J.

1. There was a suit brought for a declaration as follows: That it may he declared that under the, family partition the plaintiffs alone are the owners in possession of the property entered in list A and that the defendant has no concern with it, and that the defendant is not competent to have the villages of Shamspur alias Manikpur and Pabsara entered in list A partitioned; and for some other similar declarations, five in all.

2. The Court of first instance decreed the suit of the plaintiffs for a declaration in regard to part of the property and dismissed it in regard to part of the property. A first appeal was brought by the defendant in this Court and the plaintiffs have filed cross-objections in regard to the declaration which was not granted by the lower Court. The cross-objection sets out that the value of the objection is Rs. 26,758-5-0, and that the court-fee has been paid on Rs. 20. In the case of the plaint and in the case of the memorandum of appeal there was a court-fee paid for a declaratory suit, that is, Rs. 50 for the plaint and Rs. 30 for the appeal. It is not contested that under the Court-fees Act,, Schedule 2, Article 14, the proper court-fees for the plaint and for the memorandum of appeal are the amounts which have been paid and that under that article advalorem court-fees are not required,, the rate being Rs. 10 as the proceedings took place before the U.P. Court-fees Amendment Act, 1932, was passed. The Chief Inspector of 'Stamps has reported that there is a deficiency of, Rs. 846-12-0, in the court-fee filed on the cross-objection as he alleges, that the court-fee should be an advalorem one. The question at issue is. whether in a declaratory suit the plaint and memo of appeal require only a court-fee of Rs. 10 per 'declaration, but the cross-objection requires an advalorem court-fee. The suggestion of the Chief Inspector is very illogical, as there is no reason whatever why the particular proceedings of cross-objection should be treated in any manner different from the plaint and memo of appeal. The taxing officer has sustained the objection of the Chief Inspector of Stamps and he refers to various rulings, Lakkan Singh v. Ram Kishan A.I.R. 1918 All. 185, Daroga Raut v. Mt. Parema Kuer A.I.R. 1918 Pat. 145 and Judicial Commissioner's Court, Oudh, Sri Rajeo Lochart Maharaj v. Ram Manohar Prasad A.I.R. 1923 Outh. 44. In all these rulings it was held that cross-objections in declaratory suits must bear the court-fee calculated on the amount of value of the subject matter in dispute. The line of argument in all these cases is simple. It is based on the fact that under Schedule 1 for advalorem fees Article 1 states as follows:

Plaint, written statement pleading a set-off or counter-claim, or memorandum of appeal (not otherwise provided for in this Act) or of cross-objection presented to any Civil or Revenue Court except those mentioned in Section 3.

3. It will be noted that in this article the words 'not otherwise provided for in this Act' do not qualify the word 'cross-objection' and only qualify the 'plaint, written statement or memorandum of appeal.' Schedule 2, Article 17, states that there is a fixed fee of Rs. 10 for 'plaint or memorandum of appeal In each of the following suits : (3) to obtain a declaratory decree where no consequential relief is prayed.'

4. The argument is that the Schedule clearly sets out that the plaint or memorandum of appeal in a declaratory suit where no consequential relief is prayed are exempt from advalorem fee, whereas the cross-objection for some reason has not been made so exempt. It must be admitted that the argument is perfectly sound and that as the Schedule stands the argument is perfectly correct. For the contrary view there is the ruling of a learned Single Judge of this Court reported in F.A. No. 101 of 1927 Kashi Bai v. Gopalcharya, where he held in a similar case that a cross-objection in a declaratory suit where no other relief was asked for did not require advalorem court-fees, hut was sufficiently stamped with a ten rupees court-fee. The learned Single Judge proceeded on general principles as follows:

Where the apparent result of an appeal or objection being successful is merely that the objector will get a declaration, the court-fee to be paid will be for a declaration. Article 17(iii), Schedule 2, Court-fees Act, which deals with a declaratory relief does not specifically mention a cross-objection, but the words 'plaint or memorandum of appeal' must in my opinion be construed to include a cross-objection.'

5. I consider that this argument from' general principles is sound, and I will further point out another argument which I believe has not been referred to in any of the rulings on this subject. That argument is as follows. In Section 7, Court-fees Act, there is a provision for the calculation of the amount of fee payable under the Act in certain cases. Sub-section (iv)(c) refers to suits 'to obtain a declaratory decree or order, where consequential relief, is prayed' and for this class of suits it is stated that the plaintiff shall state the amount at which he values the relief sought. The advalorem court-fee is then calculated on the value of the relief. There is no provision for a declaratory decree or order where there is no consequential relief. Accordingly Section 7 does, not provide how the amount of advalorem court-fee would be calculated in such a case where there is no consequential relief. This clearly indicates that the Act did not intend that there-should be any advalorem court-fee where there was no consequential relief in a declaratory suit. In my opinion the Act lays down the principles for court-fees and the Schedules merely apply those principles in detail. The principle of the Act to be deduced from Section 7 is that advalorem court-fees are not to be charged in a declaratory suit where consequential relief is not prayed for. On that view the omission of the words 'cross-objection' from Schedule 2, Article 17(iii) is a mere clerical error and it was no doubt intended that by a memorandum of appeal a cross-objection should also be included. When the framers of the Act prepared Schedule 1, Article 1, this point was not noticed and the word 'cross-objection' appears separately in that article, although it does; not appear in Article 17. A cross-objection and an appeal are very intimately connected and there is no essential difference from the point of view in court-fee between one and the other, and there is no reason whatever why a: person who files a cross-objection; should have to pay advalorem court-fee, whereas if he filed an appeal instead of a cross-objection he will not have to pay court-fee. It cannot possibly have been the intention of the Legislature that such a strange result should accrue between the two kinds of procedure. Under the circumstances I hold that the cross-objection was property stamped with a twenty rupee stamp. Accordingly the case should proceed.

6. In the present case the Chief Inspector of Stamps has not valued any consequential relief as no consequential relief was asked for, but he has merely taken the value of the subject-matter. There is no section of the Act which authorises him to do so.


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