Skip to content


Sharadchandra Sughadlal Patel and anr. Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1980)21GLR663
AppellantSharadchandra Sughadlal Patel and anr.
RespondentState of Gujarat and anr.
Cases Referred(Jamaludin G. Painter v. Muni. Corpo.
Excerpt:
- - a'bad......appeal defendants nos. 1 and 2 against whom decree for a sum of rs. 8.550/- has been passed have filed cross-objections against it. so far as defendants nos. 3,4 and 5 are concerned, the suit in its entirety stands dismissed as against them. however, the jeamed trial judge in his judgment has observed that, in case decree for specific performance is passed, though the agreement of sale is not binding on defendants nos. 3,4 and 5, they should join in executing the conveyance. defendants nos. 3, a and 5, after having been served with the notice of the appeal, have filed in this court a statement in which they have challenged the direction given by the learned trial judge that in case decree for specific performance is passed, they shall join in executing the conveyance. question arose.....
Judgment:

S.H. Sheth, J.

1. The plaintiff filed the suit for specific performance of an agreement of sale dated 1st July 1967 and, in the alternative, prayed for money decree against the defendants. The learned trial Judge dismissed the plaintiff's claim for specific performance of the agreement of sale but passed in favour of the plaintiff decree for a sum of Rs. 8,550/-. It was passed only against defendants Nos. 1 and 2 and not against defendants Nos. 3, 4 and 5. Plaintiff has challenged that decree in First Appeal No. 438 of 1977 which is filed in this Court. He wants this Court to pass in his favour decree for specific performance of the agreement of sale. In this appeal defendants Nos. 1 and 2 against whom decree for a sum of Rs. 8.550/- has been passed have filed cross-objections against it. So far as defendants Nos. 3,4 and 5 are concerned, the suit in its entirety stands dismissed as against them. However, the Jeamed trial Judge in his judgment has observed that, in case decree for specific performance is passed, though the agreement of sale is not binding on defendants Nos. 3,4 and 5, they should join in executing the conveyance. Defendants Nos. 3, A and 5, after having been served with the notice of the appeal, have filed in this Court a statement in which they have challenged the direction given by the learned trial Judge that in case decree for specific performance is passed, they shall join in executing the conveyance. Question arose whether court-fee was required to be paid on such a statement. Whereas it was contended on behalf of defendants Nos. 3,4 and 5 that no court-fee was payable on such a statement, it was contended on behalf of the State that it was payable under the Bombay Court-fees Act. The dispute between the parties was referred to the Taxing Officer under Section 4 of the Bombay Court-fees Act, 1959. He held that court-fee was payable on the statement filed by defendants Nos. 3, 4 and 5. It is that order which is challenged by defendants Nos. 3, 4 and 5 in this Civil Revision Application which they have filed under Section 4 of the Bombay Court Fees Act, 1969.

2. In order to decide the controversy between the parties it is necessary to note that the suit having been dismissed in its entirety as against defendants Nos. 3, 4 and 5, the decree passed by the learned trial Judge is in its entirety in their favour. Therefore, there is nothing in that decree which defendants Nos. 3, 4 and 5 are required to challenge in this First Appeal. The question of their filing cross-objections, therefore, does not arise.

3. In Civil Revision Application No. 1209 of 1978 decided by mean 17th October, 1978, (Jamaludin G. Painter v. Muni. Corpo. A'bad. XX G.L.R. 567) I have pointed out the distinction between cross-objections and a statement which respondents may file against a finding. Whereas cross-objections are directed against a part of the decree which is against the respondents, a statement under Order 41 Rule 22 of the Code of Civil Procedure can be filed by a wholly successful respondent challenging a particular finding recorded against him. In the instant case since there is nothing against defendants Nos. 3, 4 and 5 in the decree which the learned trial Judge has passed in the suit, defendants Nos. 3, 4 and 5 are not required to file any cross-objections. All that they have done is to file a statement which is permitted to be filed by a respondent against a mere finding recorded against him. Order 41 Rule 22 itself makes a distinction between a statement against a finding and cross-objections. If both were interchangeable expressions and did not have any distinction between them, the Parliament would not have used different expressions. As pointed out above, there is a substantial and real distinction between the two.

4. The Taxing-Officer was in error in holding that Article 23(sic) in Schedule II to the Bombay Court-fees Act, 1959 governed the present case. Suits for specific-performance require payment of court-fees on ad valorem basis. Therefore, if cross-objections are filed in such a case, Article 1 in Schedule I to the Bombay Court-fees Act, 1959 will govern them. In the instant case what has been filed is a statement against a mere finding. Article I in Schedule I to the Bombay Court-fees Act, 1959 provides as under:

Plaint or Memorandum of of appeal (not otherwise provided for in this Act) or of cross-objection presented to any Civil or Revenue Court.

It is clear that Article I in Schedule I is applicable to cross-objections and not to statements against mere findings. Therefore, that Article has no application to the instant case. It was argued in Civil Revision Application No. 1209 of 1978, referred to above, that residuary Article 23(f) in Schedule II would govern such a case. That argument was negatived by me in that Civil Revision Application. For the reasons stated in that judgment the argument raised by Mr. Patel on behalf of the State is also rejected.

5. In the result, 1 am of the opinion, that the Taxing Officer was in error in directing original defendants Nos. 3, 4 and 5 to pay court-fees on the statement against a mere finding which they have filed. Statement against a mere finding not amounting to cross-objections does not attract any provision of the Bombay Court-fees Act, 1959.

The impugned order, therefore, is set aside. No order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //