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JamludIn G. Painter Vs. Municipal Corporation of the City of Ahmedabad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1979)1GLR567
AppellantJamludIn G. Painter
RespondentMunicipal Corporation of the City of Ahmedabad
Excerpt:
- - similarly, article 1 in schedule i mentions a plaint as well as a memorandum of appeal and a memorandum of cross-objections. they included the finding that the delegation of power by the municipal commissioner to deputy town development officer to issue notices of the kind of the impugned notice was invalid and bad in law. in the instant case, the respondent has fully succeeded in the trial court as well as in the high court before the learned single judge......in a letters patent appeal. in this letters patent appeal, the plaintiff has filed the 'cross-objections.'2. a question arose whether the court-fee was payable on the 'cross-objections' filed by the plaintiff. the taxing officer held that article 13 in schedule ii to the bombay court-fees act, 1959 does not apply.3. it is that order which is challenged by the plaintiff in this civil revision application.4. the taxing officer has rightly held that article 13 in schedule i[ is not applicable to the instant case. it apples to a memorandum of appeal when the appeal has not been filed from a decree or an order having the force of a decree. in the instant case, the learned trial judge has passed decree for declaration and permanent injunction. the high court has confirmed that.....
Judgment:

S.H. Sheth, J.

1. This revision application has been filed under Section 4 of the Bombay Court-fees Act, 1959, against an order made by the Taxing Officer in the matter of Court-fees, It is necessary to note the material facts of the case. The plaintiff filed the present suit in the City Civil Court at Ahmedabad against Ahmedabad Municipal Corporation for a declaration that the notice of demolition issued by the Municipal Corporation was illegal and void. He also prayed for a perpetual injunction restraining the Corporation from demolishing the structure in question. The learned trial Judge decreed the suit fully. The Corporation challenged the decree in First Appeal No. 1000 of 1973. On 9th August 1977 the appeal was dismissed by the learned Single Judge. The appellate decree passed by the learned Single Judge is challenged by the Corporation in a Letters Patent Appeal. In this Letters Patent Appeal, the plaintiff has filed the 'cross-objections.'

2. A question arose whether the court-fee was payable on the 'cross-objections' filed by the plaintiff. The Taxing Officer held that Article 13 in Schedule II to the Bombay Court-fees Act, 1959 does not apply.

3. It is that order which is challenged by the plaintiff in this Civil Revision Application.

4. The Taxing Officer has rightly held that Article 13 in Schedule I[ is not applicable to the instant case. It apples to a memorandum of appeal when the appeal has not been filed from a decree or an order having the force of a decree. In the instant case, the learned trial Judge has passed decree for declaration and permanent injunction. The High Court has confirmed that decree. The original decree passed by the learned trial Judge and the decree passed by the High Court are decrees properly so-called. The Taxing Officer was therefore justified in taking the view which he took.

5. However, he held that under Section 6(iv)(j) of the Bombay Court Fees Act, 1959, Court-fee is payable on the cross-objections filed by the plaintiff. Section 6(iv)(j) applies to suits and not to memorandum of appeal or cross-objections. It has been argued by Mr. Patel that the suit is an appeal. So far as the scheme of Bombay Court-fees Act, 1959 is concerned, it is difficult to take the view that the suit includes the appeal. In that behalf reference may be made to Section 7 of the Bombay Court-fees Act which contains a separate provision for appeal as distinguished from the original action. Similarly, Article 1 in Schedule I mentions a plaint as well as a memorandum of appeal and a memorandum of cross-objections. Therefore, the scheme of the Bombay Court-fees Act, 1959, as I understand, is that where the Legislature wanted to provide for appeals, they have expressly done so. Therefore, the general principle that the appeal is the continuation of the suit cannot be applied to the instant case. Within the meaning of the Bombay Court-fees Act, 1959 the Suits are suits, that is to say, original actions, and appeals are appeals, that is to say, appellate actions. In my opinion, Section 6(iv)(j) has therefore no application to the instant case.

6. However, in the instant case, what happened was this. The learned trial Judge decreed the plaintiff's suit fully and recorded all findings in his favour. They included the finding that the delegation of power by the Municipal Commissioner to Deputy Town Development Officer to issue notices of the kind of the impugned notice was invalid and bad in law. In appeal the High Court confirmed the entire decree but reversed the finding on the question of delegation of power by the Municipal Commissioner to the Deputy Town Development Officer. The High Court held that the Municipal Commissioner had validly delegated the power to the Deputy Town Development Officer to issue the impugned notice or the notices belonging to that class. Even though this finding was recorded by the High Court, the decree in its entirety passed in favour of the plaintiff-respondent was confirmed on merits. In the Letters Patent Appeal which the defendant-Corporation (appellant) has filed the Plaintiff respondent wants to challenge this finding. He has filed a statement stating the finding which he is challenging in the Letters Patent Appeal. This statement has been styled by the plaintiff-respondent as 'cross-objections.' In my opinion, they are not cross-objections properly so-called. Cross-objections are filed or are maintainable when they are directed against a part of the relief which has been denied by the Court below to the respondent. In the instant case, the decree passed by the trial Court and confirmed in appeal by the High Court is entirely in favour of the respondent. Therefore, what the respondent has filed is not a memorandum of cross-objections even though it might have been so styled. What he has done is to file a statement showing that he challenges the aforesaid finding recorded against him. He appears to have done so under amended Sub-rule (1) of Rule 22 of Order 41 of the Code of Civil Procedure, 1908. The relevant part of Sub-rule (1) reads as under:

Any respondent, though he may not have appealed from any part of the decree, may not only support the decree 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; and may also take any cross-objection to the decree which he could have taken by way of appeal,...

The amended Sub-rule (1) of Rule 22 of Order 41, therefore, not only contemplates cross-objections but also contemplates a statement showing the finding which an otherwise successful respondent wants to challenge in appeal.

7. Now, the Bombay Court-fees Act provides for payment of court-fees on memorandum of cross-objections though no provision has been brought to my notice showing that memorandum of 'cross objections' filed in a case of this type in which a part of the relief has been refused to the respondent can be rendered liable to payment of court-fees. However, that is not the question which should detain me any longer. The scheme of Sub-rule (1) of Rule 22 of Order XLI as it appears to me is that a respondent who is fully successful but against whom a finding has been recorded can file a statement showing the finding which he wants to challenge in the appeal. A partly successful respondent files a memorandum of cross-objections against that part of the relief which has been denied or refused to him. These are two separate matters altogether. In the instant case, the respondent has fully succeeded in the trial Court as well as in the High Court before the learned Single Judge. Therefore, there is nothing by way of relief which he can claim in a Letters Patent Appeal on the ground that it is denied to him. Therefore, though what the respondent has filed is styled by him as 'cross-objections', in reality he has filed a statement showing the finding which he intends to challenge. The provision to file such a statement has been newly inserted in Sub-rule (1) of Rule 22 of Order 41. There is no provision in the Bombay Court-fees Act, 1959 requiring the respondent to pay court-fee on such a statement. Therefore, in my opinion the respondent is not liable to pay any court-fees whatsoever on the statement which he has filed.

8. I may note in passing that Rule 22 of Order 41 will be applicable to appeals which are filed under the Code of Civil Procedure, 1908. Both are the creatures of the same statute. Letters Patent Appeal is not filed under the Civil Procedure Code but it is filed under Clause 15 of the Letters Patent. It is doubtful whether an appeal under Clause 15 of the Letters Patent will be governed by Order 41, Rule 22. If it is not governed by Order 41, Rule 22, the respondent would have no right to file such a statement. However, this situation does not make any difference in the instant case because even without filing such a statement he is entitled to support the decree on any ground and in that process it is open to him to challenge a finding recorded against him in order that he may successfully defend the decree passed in his favour. In the view which I have taken, the Civil Revision Application succeeds. The order made by the Taxing Officer is set aside and it is declared that the statement filed by the respondent-plaintiff in Letters Patent Appeal does not require payment of any Court-fees.


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