1984 PLP 2441 (CLC)

‑‑ S. 96‑Appeal‑Court‑fee on memorandum of appeal for amount of costs awarded‑When required‑Petitioner filing appeal against entire decree by which costs were also awarded to respondent but not making a distinct and separate attack in appeal on order awarding costs‑Held, petitioner not required to pay separate court‑fee for amount of cost ‑ Order of Additional District Judge, dismissing appeal on ground that court‑fee was not paid for costs awarded to respondent set aside and case remanded for decision on merits. [Court‑fee]. Beni Parshad and another v. Raja Ram 157 I C 96 and Th. Nathusingh v. Rasik Beharilal and others A I R 1950 Ajmer 7 fol. In re : Makki I L R 19 Mad. 350 distinguished. The facts giving rise to this civil revision are that the respondent, Muhammad Nabi Khan, filed a suit against the petitioner, Ghulam Rasool and another, for recovery of Rs 1,000 a; damages. The suit was decreed against the petitioner only, with costs, by a Civil Judge. The petitioner, therefore, filed an appeal before an Additional District Judge. On his appeal, he paid a court‑feet of Rs. 75 fur the claim of Rs. 1,000 but did not pay any court‑fee regarding the costs amounting to Rs. 153.50. The learned Additional District Judge, therefore, dismissed the appeal on the short ground that court‑fee had not been paid for the costs awarded to the res pondent. Feeling aggrieved by the order of the learned Additional District Judge, the petitioner has come up in revision to this Court.

2. It was contended by, learned counsel for the petitioner that no court‑fee was payable for the, amount of costs. He relied on Beni Parshad and another v. Raja Ram (157 I C 96) and Th. Nathusingh v. Rasik Beharilal and others (A I R 1950 Ajmer 7) to support his contention.

3. On the other hand, it was urged by learned counsel for the respon dent that the petitioner was obliged to pay court‑fee on the amount of costs as well and since he had not done so, the appeal was rightly dismissed. In this connection, reliance was placed on by him on In re : Makki (I L R 19 Mad, 350).

4. In the case of Makki, it was held that when apart from, and independently of any other reliefs which an appellant seeks in an appeal from a decree, he seeks distinct relief on the ground that by the decree under appeal the costs of the parties in the proceedings, which terminated with the decree, have not been properly assessed of apportioned the value of such distinct relief should be reckoned as part of the subject‑matter in dispute and, therefore, a court‑fee stamp is leviable. In the instant case, the petitioner did not claim any distinct or independent relief in regard to the costs awarded by the learned trial Court but challenged the decree as a whole. The case of Makki, therefore, being distinguishable on facts of no help to the respondent.

5. T. K. Rowlins v. Lachmi Narain Jha and others (44 I C 50) also it was held by a Single Bench of the Patna High Court that where an appeal is against costs and separate from other parts of appeal, courts‑fees must be paid ad valorem on the amount of costs. While distinguishing the case of T. K. Rowlins, it was held, by a Division Bench of the High Court of Lahore, in the case of Beni Parshad and another that as the appellants in the latter case had paid for the dismissal of the whole of the clam against them and had paid the proper court‑fees on that relief, its costs being merely incidental to that relief, it was not necessary for the appellants to pay separate ad valorem court‑fees on the costs. In the case of Th. Nathusingh also it was held that where an appeal is against the entire decree, including order for costs, separate court‑fee on the amount of costs is not payable.

6. I, with respect, follow the view expressed in the cases of Beni Parshad and another and Th. Nathusingh and hold that since the appeal preferred by the petitioner was against the entire decree by which costs were also awarded to the respondent and the petitioner had not made a distinct and separate attack on the order relating to the award of costs he was not required to pay a separate court‑fee for the amount of costs. In this view of the matter, the learned Additional District Judge has no jurisdiction to dismiss the appeal merely for the reason that the petitioner had not/paid ad valorem court‑fee for the amount of costs.

7. Resultantly, I accept this revision, set aside the judgment and decree of the learned appellate Court and remand the appeal to the said Court with the direction that it shall hear and decide it on merits. The parties are left to bear their own costs. They shall appear before the learned appellate Court on 29th March, 1984. M. E. A. Case remanded.