Sheobhajan Singh and Others vs Manik Chand Sahu and Others

Meredith, J.—This is a reference u/s 5, Court-fees Act. The facts are very simple A suit was brought for recovery of possession of certain property, and mesne profits were claimed from the date of the institution of the suit up to the date of the judgment and also for the future period up to the date of recovery of possession. In accordance with practice no court fee was paid or claimed -upon these future mesne profits. The suit was dismissed by the trial Court, but in the lower appellate Court the suit was decreed, except as regards the claim to mesne profits, which was rejected. The defendants came to this Court in second appeal, and the plaintiffs filed a cross-appeal against the refusal of the Court to decree mesne profits. This cross-objection was not valued or stamped at all, and the question which has been referred to me as Taxing Judge is what court-fee is payable, if any?

The Stamp Reporter suggested that if it was not possible to estimate the subject-matter in dispute at a money value, Art; 17 (vi) of Schedule 2, Court-fees Act should be applied and a court-fee of Rs. 18-12-0 paid: The taxing Officer, on the other hand, thinks that the cross objector should be asked to ''make an estimate of tie amount of mesne profits for to ''period between the institution of the suit and the date of the decree of the lower appellate Court, and should pay ad voleram court-fees thereon.

In nay opinion, the learned taxing, officer has taken the correct view. It is true that when a plaintiff future mesne profits he is not required to make any estimate thereof, or pay 1 any court-fee, the obvious reason being that: as the duration of the litigation is unknown there is no possibility of making any estimate even approximate The same principle will apply in appeal with regard to mesne profits which are still future in full sense, that is to say, for a period between the date of the decree appealed against and the eventual recovery of possession. But it will, in my judgment, not apply to mesne profits for the period between the institution of the suit and the decree Here the analogy is, I think, with antecedent mesne profits. When a plaintiff claims mesne profits up to the date of the institution of his suit he if required to make an estimate of the probable amount and pay court fees thereon, because he knows the land and its value and the period is also fixed. Under Art, 1 of Schedule i, Court-fees Act; a memorandum of appeal has to bear a court-fee stamp; calculated on the value of the subject matter in dispute in the appeal.

In the memorandum of cross-objection, the present plaintiffs say that the Court below has erred in refusing, to pass any'' decree for mesne profits, and that in any event, the Court below ought to have given a direction for ascertainment of mesne profits from the date of the suit up to the date of the passing of the decree The second part of this prayer clearly relates to a fixed period, and just as the plains-tiffs have to make an estimate of antecedent mesne profits up to the date of the suit and pay court-fees thereon it seems to me that they must also estimate the mesne profits up to the date of the decree which forms the subject-matter of their cross-appeal, and must pay court-fees thereon. There is no force in the contention that an estimate cannot be made It can be made just as easily as an estimate of antecedent mesne profits, and indeed in a sense the claim in the cross appeal has become a claim for antecedent mesne profits in so far as it asks for them up to a fixed date, which is now a date in the past, namely, the date of the decree There is no longer anything future about that portion-of the claim.

A number of rulings has been cited before me but none of them is directly in point and it is, therefore, unnecessary to refer to them.

I, hold, therefore, that the cross-objectors must value their claim in so far as it relates to mesne profits for the period between the institution of the suit and the date of the decree appealed'' against, and must pay ad valorem court-fees thereon. Article 17(vi) of Sechedule 2 has no application. No court-fee are payable on the memorandum in regard to the period from the date of the decree up to the date of recovery of possession, which is wholly unknown, but should the cross-objection succeed, then by analogy with Section 11 of the Act, court-foes will have to be paid later on the difference between the estimate to be now made and the total amount eventually decreed after ascertainment, if any. That payment will be a condition precedent to execution. That is my answer to the reference.