Hiralal vs Ramswaroop

Shivdayal, J.—Hiralal and four others instituted a suit for the recovery of Rs. 2236-7-0 against Ramswaroop and two others in the Court of the Civil Judge Second Class, Gwalior. The trial Judge dismissed the suit and allowed costs to defendants No. 1 and 2. The plaintiffs took an appeal before the District Judge, Gwalior with the prayer that the judgment and decree under appeal be set aside and that the plaintiff''s suit be decreed with costs in both the Courts.

The learned District Judge ordered the appellants to pay court fee on the amount of costs awarded to the defendants. The appellants have come here in revision against that order.

I am clearly of the view that the order of the District Judge is erroneous and court fee has been demanded which was not payable. On a memorandum of appeal court fee is to be paid on the value of the subject matter of the appeal. Costs are not added to the decretal amount so as to form a part of the value of the subject matter. Indeed costs are not part of the dispute and their allowance or disallowance is within the discretion of the Court. Court fee is, therefore not payable in of costs entered in the decree from which the appeal is filed. The prayer in appeal that costs be allowed to the appellants in a case as the present one is merely incidental. In the present case the appellants prayed that a decree be passed in their favour with costs in both the Courts. That only meant that costs be awarded to the appellant only in the event of the judgment and decree of the trial Court Judge being set aside. This is what is meant by an incidental relief. Such a case is apart from that where independently of any other relief which an appellant seeks, a distinct relief is sought contending that costs of the parties have not been properly assessed. This is also not a case where a successful party is disallowed costs and he files an appeal against that disallowance. Here the simple question is whether separate court fee is payable on the amount of costs when a suit is dismissed with costs and the appeal by the plaintiff is directed against the entire decree and is not confined to costs. My answer is emphatically in the negative. I will content myself by recalling the case of Doorgadoss Chowdary Vs. Ramanath Chowdary. 1859 1 (8 MIA) 262. In that case the Privy Council was concerned with the question whether in order to reach the appealable value for an appeal to the Privy Council costs awarded to the successful party cannot be included in the value of the subject matter of the appeal. The question was answered in the affirmative. It was pointedly observed in that case that costs of a suit were no part of the subject matter in dispute. See also AIR 1927 Sindh 251 and Nilmudhdas Vs. Bishambardas 13 MIA 85.

The Appellate Court has relied on ILR 19 Mad 350 (in Re. Makki) and 44 IC 59 where it was held that on a distinct relief separate court fee should have been paid. There can be no quarrel with this proposition but those cases are not in point here. Another case relied on is AIR 1937 6 (Nagpur) where it is held that court fee is leviable on sums ascertained but not on those which cannot be ascertained. I do not see how that case applies to the question with which the appellate Court was dealing. Another case cited is AIR 1940 182 (Oudh) where it is observed that in a case where the appeal is filed against a decree in a suit on merits and the order of costs is challanged independently, then the value of the subject matter in dispute is the total amount of costs. In that case the appellant valued the appeal at Rs. 5100 and the relief claimed in the trial Court was of a declaratory nature. They paid the court fee of Rs. 30. In ground No. 11 of their appeal the appellants took an independent objection as regards costs which had been awarded against them personally. Their contention in the appeal was that the costs should have come out of the estate. It was for this particular reason that additional court fee was required on the amount of costs because it was found that the appellants had also challenged the order of costs independently. The Word ''independently'' is significant. The learned Judge distinguished the case of Doorgadoss Chowdary & MIA 262, because in that case there was no specific ground of appeal attacking the order of costs. The Oudh decision in Bhawani Shankar''s case is, therefore, clearly distinguishable inasmuch as in the present case there is no independent ground of appeal challenging the order of costs.

Then the District Judge has relied on a Full Bench decision of this Court in AIR 1941 1 (Nagpur) . That was a case where plaint had been rejected for default in paying deficit court fee and the question was whether the memorandum of appeal filed against such rejection of plaint should bear the same advalorem court fee as on plaint or advalorem court fee on the difference between the fee paid and the fee demanded in the lower Court. It was held that it was the difference in the court fee which was payable because that was the subject matter of the appeal. That decision is, therefore, not in point here.

For these reasons the revision is allowed. The order of the District Judge, Gwalior dated December 23, 1960 is set aside. Parties shall bear their own costs in this revision.