Kamakhya Narayan Singh vs Ramraj Singh and Others

Jwala Prasad, J.—This is a reference u/s 5, Court-fees Act. The question is whether a cross-objection, which relates to costs, should bear Court fee upon the amount claimed. The plaintiff''s suit in the Court below has been dismissed without giving any costs to the defendants. The plaintiff has filed an appeal and the defendants have filed a cross objection, stating that the Court below was wrong, in not allowing costs to them. According to Schedule 1, Article 1, a cross-objection has to bear an ad valcrem Court-fee according to the "amount or value of the subject-matter in dispute.

The plaintiff in his plaint, among other reliefs, also claimed costs of the litigation. The defendants resisted the claim of the plaintiff and consequently the question of costs became the subject-matter of dispute in the litigation. The lower Court by its decree disallowed costs to the defendants. Accordingly, the -defendants seeking to recover costs by way of an appeal are bound to pay Court-fee according to Schedule 1, Article 1. This was the view taken by the Taxing Judge of this Court in T.K. Rowlins v. Lachmi Narain Jha [1918] 3 Pat. L.J. 443, The view seems to be supported by the practice in the Allahabad High Court, the Oudh Commissioners'' Court and the Madras High Court : vide Lakhan Singh v. Ram Kishan Das [1917] 40 All. 93 Kewal Singh v. Makrud Singh [1909] 20 I.C. 171, and In re Makki [1896] 19 Mad. 350. The Taxing Judge of the Calcutta High Court (Chatterjee, J.) in the case of Kamal Kumari Debi v. Rungpur North Bengal Bank, Limited AIR 1921 Cal. 55, took a contrary view. According to his Lordship costs of a suit could not be the "subject-matter in dispute" as stated in Schedule 1, Article 1, Court-fees Act.

In support of his view the learned Judge relies upon the Privy Council decision in Durga Das Choivdury v. Ram Nath Ghowdury [1860] 8 M.I.A. 262, where for the purpose of determining the value of the subject-matter in suit or in appeal for a Privy Council appeal u/s 110, Civil P.C. it was laid down by their Lordships of the Judicial Committee that the amount of costs should not be taken into" account.

As pointed out by a Division Bench of the Rangoon High Court (Sir Sidney Robinson, C.J. and Baguley, J.) in the case of Ma Thin v. Maung Shwe Unit AIR 1925 Rang. 145, that decision was for a limited purpose of an appeal u/s 110, Civil P.C. and does not in any way indicate that costs of a suit cannot be considered, to be the subject matter in dispute" under Schedule 1, Article 1, Court fees Act. The plain fact is that the defendants think that they are entitled to costs and that the Court below was wrong in not acting up to the principle of the costs following the event. The question of costs, therefore, is the subject-matter of dispute between the parties.

I Could accordingly hold, in agreement with the view expressed by my predecessor of this Court, that the defendants should pay an ad valorem Court-fee upon the amount of casts claimed by them in their cross-objection. There will be no order as to costs.