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ismail Khan Vs. Shankarlal Chourasia - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 5 of 1983
Judge
Reported inAIR1984MP139
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 31 and 32; Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 22(1); Court-fees Act, 1870 - Schedule - Article 1; Code of Civil Procedure (CPC) (Amendment) Act, 1976
Appellantismail Khan
RespondentShankarlal Chourasia
Appellant AdvocateL.P. Singhi, Adv.
Respondent AdvocateR.P. Jain, Adv.
Cases ReferredTej Kumar v. Pursbottam
Excerpt:
- - in sub-rule (1) the words 'on any of the grounds decided against him in the court below, but take any cross-objection' not being very happy because a person cannot support a decree on a ground decided against him, the italicised words have been substituted for making it clear what is meant. under the existing position of law the situations are well settled, namely, (1) if the decree is wholly in favour of respondent he can support the decree in his favour passed by the trial court on any of the grounds or issues decided against him without filing any cross-objection, and (2) if some decree is passed against a respondent, he cannot challenge it in appeal without filing any cross-objection in respect of the adverse decision on which that decree is based......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.....
Judgment:

C.P. Sen, J.

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,

4. I am fortified in my view by the commentary in Sarkar on Civil Procedure, 6th Edition at page 1020 which is as follows : 'Rule 22 gives two distinct rights to the respondent in the appeal. The first is the right of upholding the decree of the court of first instance on any of the grounds on which that court decided against him; and the second right is that of taking cross-objection to the decree which the respondent might have taken by way of appeal. In the first case he supports the decree and in the second case he attacks the decree. In Sub-rule (1) the words 'on any of the grounds decided against him in the Court below, but take any cross-objection' not being very happy because a person cannot support a decree on a ground decided against him, the italicised words have been substituted for making it clear what is meant. In Sub-rule (1) an Explanation has also been added expressly empowering the respondent to file cross-objection in respect of a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour. It is submitted that in conformity with the provisions of Order 14. Rule 2 as the court has now to decide on all issues even if the case can be disposed of on a preliminary point except where a question of jurisdiction or bar to suit is involved when the decree is in favour of a person but the findings an some of the issues are adverse to him on independent light to prefer an appeal against the adverse findings should have been provided for in order to remove the uncertainty as regards res judicata in respect of- these findings from' which right of appeal a right to file cross-objection would have also automatically followed, instead of a limited right to- file cross-objection only which has no independent status at all, as has been given. Under the existing position of law the situations are well settled, namely, (1) if the decree is wholly in favour of respondent he can support the decree in his favour passed by the trial court on any of the grounds or issues decided against him without filing any cross-objection, and (2) if some decree is passed against a respondent, he cannot challenge it in appeal without filing any cross-objection in respect of the adverse decision on which that decree is based. It thus appears that the express provision empowering the respondent to file cross-objection in respect of any finding 'adverse to him, as has been conferred by the Explanation in question, has not effected any material Change in lav except that in the first situation, as adverted to above, respondent may now file a cross-objection also, and, ' in that event, to the extent cross-objection will survive the appeal, as has been laid down in Sub-rule (4), he will be entitled to adjudication on the cross-objection ! on the merit.' The' same is' the-view taken by a single Bench of this Court in Tej Kumar v. Pursbottam, . AIR 1.981 Madh Pra 55 wherein it has been held as under:--

'The expression 'provided he has filed such objection in the appellate Court' in Order 41, Rule 22 (1) governs only the words 'and may also take any cross-objectjon to the decree which he could have taken by way of appeal' and docs not govern the words 'but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour. Therefore even under the amended Rule 22 (1) the respondent without filing any cross-objection can support the decree of the Court below by asserting that the matter decided against him should have been decided in his favour.'

5. Therefore, the reference is answered by saying that cross-objection preferred under Explanation to Order 41, Rule 22 (1) is to be treated as an application and court-fee has to be paid accordingly and riot ad valorem court-fee 'under 'Article 1 of Schedule 1 of the Court-fees Act.


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