1. This is a reference under Section 5, Court-fees Act, 1870. The plaintiff sued for the redemption of certain property upon payment of Rs. 5,911, which he deposited. The trial Court decreed redemption upon payment of Rs. 7,925 and ordered the plaintiff to deposit the balance of Rs. 2,014 within eight days. Parties were ordered to bear their own costs. The defendant appealed against the decree. The plaintiff respondent filed cross-objections (1) contesting his liability to pay the further sum of Rs. 2,014; and (2) contesting the disallowance of his costs in the trial Court.
2. He paid an ad valorem court-fee on Rs. 2,014 only. The Chief Inspector of Stamps reported that the respondent was liable to pay a further court-fee of Rs. 30 on the amount of costs claimed by him, namely Rs. 625. The respondent's learned advocate contests the correctness of this report. The Taxing Officer agrees with the Chief Inspector but, in view of the general importance of the question, has referred the matter to the High Court for decision. Under Sch. 1, Article 1, a memorandum of cross-objections is chargeable with an ad valorem fee on the 'amount or value of the subject-matter in dispute.' The question therefore is whether the costs which were disallowed by the trial Court, and are claimed in the cross-objection, should be included in the 'amount or value of the subject-matter in dispute.' Looking only at the language of the statute, apart from judicial decisions I should answer the question in the affirmative. The respondent expressly claims a certain sum which was disallowed by the trial Court. In my opinion that sum is part of the 'subject matter in dispute' in the appellate Court. This view is supported by the preponderance of judicial decisions. The Chief Inspector relies upon Debendro Mohan Rai v. Sona Kuer  26 All. 291 decided by a Bench of this Court. In that case it was held that where in a memorandum of appeal the disallowance of costs by the lower Court is made the ground of a claim for separate and distinct relief, the value of such distinct relief should be reckoned as part of the subject-matter in dispute for the purposes of Sch. 1, Court-fees Act. This is the only case on this point decided by this High Court which has come to my notice, and it certainly supports the Chief Inspector's view. The same view was taken by the Madras High Court in In re Makki  19 Mad. 350.
3. Respondent's advocate seeks to distinguish these rulings on the ground that they relate to memoranda of appeal and that the principle of taxation applicable to a memorandum of appeal is quite different from that applicable to a memorandum of cross-objections. He cites certain rulings, namely Lakhan Singh v. Ram Kishan Das  40 All. 93, Ishdat Tewari v. Tameshwar Tewari A.I.R. 1924 All. 175 and Daroga Raut v. Mt. Parema Kuar  3 Pat. L.J. 197 in support of this contention. These rulings however do not help him as they all hold that a cross-objection must bear an ad valorem court-fee on the value of the subject matter in dispute, under Sch. 1, Article 1, even if the court-fee on a memorandum of appeal in the same suit is payable under Sch. 2, Article 17.
4. On the point whether the amount of costs which are specifically claimed in a cross-objection, after having been disallowed by the trial Court, should be included in the subject matter in dispute, the learned advocate has cited no authorities. The only authority which I have been able to discover in support of his contention is the case of Kamal Kamini Debi v. Muhammad Emamuddin Sarkar  64 I.C. 606 decided by a single Judge of the Calcutta High Court. In this case it was held that a memorandum of cross-objections relating to costs only comes under Clause (d), Article 1, Sch. 2, Court-fees Act and a court-fee of Rs. 2 is leviable thereon. The learned Judge was much influenced by a remark made by their Lordships of the Privy Council in Doorga Doss Chowdry v. Ramanath Chowdry  8 M.I.A. 262 that 'the costs of a suit are no part of the subject matter in dispute.' This ruling does no doubt support the contention that when costs form the subject matter of a cross-objection then those costs should not be included in the 'subject matter in dispute' for the purpose of determining the proper court-fee.
5. This ruling has however been expressly dissented from by a division Bench of the Rangoon High Court in Ma Shin v. Maung Shwe Hnit A.I.R. 1925 Rang. 145, in which it was held that cross-objections relating solely to costs must be stamped ad valorem on the sum claimed as costs. The learned Judges pointed out that their Lordships of the Privy Council (in the case cited above) were not construing the language of any part of the Court-fees Act but were dealing with an order in Council, and considering whether special leave to appeal should be granted, and therefore their dictum must not be extended further than the point which was immediately before them.
6. The Calcutta ruling has also been expressly dissented from in Nihal Chand v. Amar Nath A.I.R. 1926 Lah. 645, which was decided by a Division Bench of the Lahore High Court. The previous Rangoon ruling does not appear to have been considered by the learned Judges, but they took the same view, namely, that a memorandum of cross-objections relating to costs only is governed by Article 1, Sch. 1, Court-fees Act, and must be stamped ad valorem.
7. I have no hesitation in following the two later rulings, in preference to the Calcutta ruling since they appear to me to be in accordance with the plain and ordinary meaning of the language in Article 1, Sch. 1. Although they refer in terms to cross-objections relating to costs only, I think it is clear that the same principles are applicable to cross-objections relating partly to costs and partly to other matters. The part relating to costs must be held to be part of the 'subject matter in dispute.' I hold that the Chief Inspector was correct, and the respondent must pay a further court-fee of Rs. 30 on the amount which he claims in his cross-objection relating to costs.