S.H. Sheth, J.
1. Seven plaintiffs filed Civil Suit No. 1124 of 1967 in the City Civil Court at Ahmedabad for recovering a sum of Rs. 25,000/-from the defendant. The amount was claimed from the defendant who is a doctor on the ground that he had been negligent in performing his duties on account of which one Premchand died. The Trial Court decreed the suit in favour of the plaintiffs Nos. 1, 6 and 7 and dismissed the claim made by the other plaintiffs on the ground that they were not the dependents of the deceased Premchand. Strangely enough all the plaintiffs appealed against that decree. It was First Appeal No. 356 of 1970.
2. At the time of the admission hearing of the appeal this Court directed the Taxing Officer to inquire into the adequacy of the Court-fee paid on the memorandum of appeal. It may be stated at this stage that First Appeal No. 356 of 1970 was filed by the plaintiffs on a Court-fee of Rs. 30/. The Taxing Officer inquired into the matter and by his order dated 24th December 1970 held that payment of Court-fee on the memorandum of appeal in First Appeal No. 356 of 1970 was governed by Article 23(f) of Schedule II to the Bombay Court-fees Act, 1959. In his opinion, therefore, the Court-fee of Rs. 30/-which the plaintiffs-appellants had paid was proper.
3. It is that order which is challenged by the State of Gujarat in this Revision Application which has been filed under Section 4 of the Bombay Court-fees Act, 1959.
4. The plaintiffs made the following prayer in the plaint against the defendant.
The defendant may be directed to pay to the plaintiffs a sum of Rs. 25,000/- as and by way of damages for the premature death of the deceased with running interest at 6% from the date of the suit.
This was a pure money claim which the plaintiffs made against the defendant. In the suit they had paid ad valorem Court-fee of Rs. 1675/-. The claim made by the plaintiffs Nos. 1, 6 and 7 was decreed by the Trial Court. The claim made by the plaintiffs Nos. 2, 3, 4 and 5 was dismissed. There was no reason for the plaintiffs Nos. 1, 6 and 7 to appeal against the decree. Their rightful place in First Appeal No. 356 of 1970 would have been as respondents. However, though their claim was decreed, they joined as appellants the plaintiffs Nos. 2, 3, 4 and 5 whose claim was dismissed. What, in my opinion, the plaintiffs Nos. 2, 3, 4 and 5 as appellants were claiming in First Appeal No. 356 of 1970 was the amount in respect of which they along with the other plaintiffs filed the suit. It was that claim which was rejected. If a money claim made by more than one plaintiffs is decreed in favour of one and dismissed so far as another is concerned and if one of the plaintiffs whose money claim has been dismissed files an appeal, the matter relating to Court-fees on the memorandum of appeal must be governed, in my opinion, by Article 1 of Schedule I to the Bombay Court-fees Act, 1959. It is extremely difficult to see how the residuary Article 23(f) could have been brought into play as has been done by the Taxing Officer. Article 23(f) provides as follows:
Plaint, petition or application (including memorandum of appeal) which is capable of being treated as a suit..... .... .... .... ....(f) in or to any Civil Court not otherwise provided for and the subject matter of which is not capable of being estimate in money value.
It is only in such a case that a fixed Court-fee of Rs. 30/- is payable. Since the Trial Court dismissed a pure money claim made by the plaintiffs Nos. 2, 3, 4 and 5 it was that money claim in respect of which they filed First Appeal No. 356 of 1970. It is impossible to think, therefore, that the appeal which the plaintiffs Nos. 2, 3,4 and 5 filed was not capable of being estimated in money value or was not otherwise provided for. Since it was a pure money claim which the plaintiffs Nos. 2, 3, 4 and 5 had been agitating in First Appeal No. 356 of 1970, it was expressly governed by Article I in Schedule I to the Bombay Court-fees Act, 1959. In that view of the matter the plaintiffs Nos. 2, 3, 4 and 5 were liable to pay the ad valorem Court-fee (r)f Rs. 1675/-. So far as the plaintiffs Nos. 1, 6 and 7 were concerned, indeed they were not agitating any claim before this Court and had wrongly joined themselves as the appellants to the appeal.
5. Miss Shah, appearing for the original plaintiffs, has invited my attention to two decisions in support of her contention that the claim in First Appeal No. 356 of 1970 was governed by Article 23(f) in Schedule II to the Bombay Court-fees Act, 1959.
6. In the State of Bombay v. L.D. Narayanpure and Ors A.I.R 1960 Bombay 334 a suit was filed by the plaintiff on a loan as defined by the Bombay Money-lenders Act. One of the matters in controversy between the parties was the time before which and the manner in which the amount which would be found due to the plaintiff would have to be paid by the defendant. An application was filed under Section 24 of the Bombay Money-lenders Act, 1946 for varying the decree and making it payable by instalments. That application was rejected. Therefore, an appeal was filed in the High Court of Bombay. The question which arose was what Court-fee was payable on the memorandum of appeal filed against an order by which an application made under Section 24 of the Bombay Money-lenders Act was rejected. The High Court of Bombay held that the payment of Court-fee on the memorandum of such an appeal was governed by item 17(vii) in Schedule II to the Court-fees Act and that, therefore, a fixed Court-fee of Rs. 18-12-0 was payable. While recording that conclusion the High Court of Bombay has held that in that appeal the subject matter in dispute was not the amount of the decree but the mode in which the amount was to be paid. It, therefore, held that it was not possible to estimate at a money value the subject matter in dispute. In the instant case, the decree passed against the plaintiffs Nos. 2, 3, 4 and 5 itself was under challenge in First Appeal No. 356 of 1970. The claim which the plaintiffs Nos. 2, 3,4, and 5 had made in the suit was dismissed by the Trial Court and they were agitating in the appeal that very claim. It is, therefore, very difficult to say that the decree passed by the Trial Court was not under challenge in First Appeal No. 356 of 1970. Such an appeal is altogether different from an appeal filed against an order made under Section 24 of the Bombay Money-lenders Act because in the latter-mentioned appeal what is in dispute is not the amount of the decree but the mode in which the amount is to be paid. The principle laid down by the High Court of Bombay in the aforesaid decision is, therefore, not applicable to the instant case.
7. The next decision to which Miss Shah has invited my attention is in Sitabai w/o Prithwigir Gosai v. Ramchandra Raghunath Abhyankar A.I.R. 1938 Nagpur 409. In that case final decree for sale in a mortgage suit was passed. An appeal was filed from that decree. In the appeal the amount due under the decree was not challenged and the only relief which was claimed was that a prayer which had been made before the passing of the final decree for extension of time should have been allowed. It has also been observed in that decision that where the only relief sought relates to instalments and does not question the amount due under the decree, it is incapable of valuation and the Court-fee payable is under Article 17(vii) of Schedule II to the Court-fees Act, 1870. Whether the appeal is against the rejection of a prayer for extension of time in case of a final decree or whether the appeal is against an order refusing to grant instalments, it is governed, as held by the Full Bench of the Nagpur High Court in the aforesaid decision, by Article 17(vii) of Schedule II to the Court-fees Act, 1870. The principle laid down in that decision is not applicable to the instant case because what the plaintiffs Nos. 2 to 5 did in the instant case was to challenge the very decree and question its propriety. They wanted this Court to decree the claim which the Trial Court had dismissed.
8. None of the two decisions is, therefore, applicable to the instant case. In my opinion, the plaintiffs Nos. 2, 3, 4 and 5 as appellants were liable to pay the Court-fee of Rs. 1675/- on the claim of Rs. 25,000/- which they made in First Appeal No. 356 of 1970. Miss Shah has tried to simplify the proposition by stating that what was in dispute in the appeal was not the claim of the plaintiffs Nos. 2 to 5 which was dismissed by the Trial Court but what was in dispute was whether the amount should be awarded to all the plaintiffs or to some of them. The proposition as stated by Miss Shah is, in my opinion, an over-simplification of the problem. The bold fact which emerges out of the record is that the Trial Court had dismissed the claim of the plaintiffs Nos. 2 to 5 and that they had been agitating that claim in First Appeal No. 356 of 1970.
9. Under the aforesaid circumstances I am unable to uphold the order made by the Taxing Officer. I, therefore, set it aside and hold that the plaintiffs Nos. 2, 3, 4 and 5 as appellants were liable to pay the Court-Fee of Rs. 1675/- on the memorandum of First Appeal No. 356 of 1970.
10. Both the learned Advocates tell me that First Appeal No. 356 of 1970 was withdrawn by the appellants after it was admitted by this Court. If the appellants had paid full Court-Fee of Rs. 1675/-, half the amount would have been refunded to them under item No. 3 in Schedule to the order made by the Government of Bombay on 29th April, 1960 under Sub-section (2) of Section 43 of the Bombay Court-Fees Act, 1959. Item No. 3 provides as follows:
Appeal which after having been placed before Half of the institution feethe Court for admission is withdrawn or not paid on the Memorandumprosecuted of appeal.
11. Since the appeal has been withdrawn after it was admitted I see no point now in directing the plaintiffs Nos. 2, 3, 4 and 5 to pay the full Court-Fee of Rs. 1675/ - and then refunding half the amount to/them. In my opinion, the requirements of law will be fully satisfied if I direct, under the aforesaid circumstances, the plaintiffs Nos. 2, 3, 4 and 5 to pay half of Rs. 1675/-. I, therefore, direct the plaintiffs Nos. 2,3 4 and 5 as appellants in First Appeal No. 356 of 1970 to pay a Court-Fee of Rs. 837.50. The amount shall be recovered from them in the manner hjid down by law in that behalf.
12. At the conclusion of this judgment Miss Shah has argued that under Order 7, Rule 11 of the Civil Procedure Code I should reject the memorandum of appeal and not direct the plaintiffs Nos. 2, 3, 4 and 5 as appellants to pay the aforesaid amount of Court-Fee. No memorandum of appeal can be rejected after the appeal has been withdrawn. There is nothing which is now surviving in First Appeal No. 356 of 1970 for me to reject. Therefore, nothing can be rejected.
13. In the circumstances of the case Rule is made absolute with no order as to costs.