P L D 1959 (W (PLP)

Date of hearing : 4th June 1959. The plaintiff in this case sued for a declaration with conse quential relief in respect of certain land. The suit was decreed to the extent of 5/6th of the area claimed and dismissed qua the remaining 1/6th. Both parties appealed unsuccessfully to the Additional District Judge, Jhang. In this Court the plaintiff filed a regular second appeal and the defendants lodged cross objections regarding the share of the land decreed. The Stamp Reporter held that the cross‑objections were, for the purpose of court‑fee, taxable ad valorem, but learned counsel did not agree citing Mst. Nausha Bi v. Rangbaz (P L D 1954 Lah. 265) which he claimed to be in his favour. The Stamp Reporter referred the matter to the Registrar as Taxing Officer, who also considered the ruling cited to be in favour of the objectors but did not agree with it and in turn referred the case to this Court on the taxing side.

2. Before proceeding to discuss the authority in dispute, mention must be made of certain other decisions on which learned counsel for, the objectors relied. The first is Balak Ram High School, Panipat v. Nanun Mal (I L R II Lah. 503). This ruling is of no assistance to the objectors. The relevant portion of the High Court judg ment runs‑ "The plaintiff has filed cross‑objections with respect to a direction embodied in the decree of the learned Senior Sub ordinate Judge that if the appellants are unable to realise Rs. 50,000 or any portion of it from the firm of Nihal Chand‑Chhajju Mal, they will be entitled to realise the same from the property of Balak Ram in the hands of the plaintiff. As to this, a preliminary objection was raised by the appellants that the court‑fee of Rs. 10 paid on the memorandum of cross‑objections was not sufficient, and an ad valorem fee on the charge of Rs. 50,000 on the property which the plaintiff wishes to get rid of should have been paid. Ramakrishna Reddi v. Kottu Kota Redd! 1907 I L R 30 Mad. 96 (F. B.) and Kishun Dutt v. Kasi Pandey (1920) 57 I C 481 were cited as authorities. The authorities cited do not‑ appear to me to be applicable to the facts of the present case. No definite charge in respect of a sum of Rs. 50,000 has been created by the decree. The burden created is uncertain and depends on the contingency of the sum of Rs. 50,000 or any portion of it not being realised from the firm of Nihal Chand- Chhajju Mal. In the circumstances the case would seem to fall under clause (vi) of Article 17 of the second schedule of the Court Fees Act. The court‑fee of Rs. 10 paid on the cross‑objections was, therefore, sufficient." There is no reason to suppose that if a definite charge had been created the learned Judges would have failed to adopt the well settled view that cross‑objections are chargeable ad valorem.

3. The next authority cited is Surendra Singh v. Gambhir Singh (A I R 1934 All. 728), in which a learned Single Judge held that cross‑objections do not require ad valorem court‑fee and that the omission of the word "cross‑objections" from Article 17 (iii) of Schedule 2 of the Court Fees Act is a mere clerical error. This contention has been dissented from in several decisions, for example, Kartar Singh v. Joginder Singh (1937 P L R 39, 586) in which Skemp, J., relying on an earlier decision Daroght Raut v. Mst. Parema Kuer (45 I C 568), of the Patna High Court, held that an accidental omission would never have been allowed to remain since the year 1908, particularly as the omission had been pointed out by Tudball, J. of the Allahabad High Court as early as 1917. The same view was taken by Cornelius, J., when on the Bench of the Lahore High Court in an unreported case, (Regular Second Appeal No. 49 of 1948) decided on the 1st of June 1948, and I respectfully agree.

4. It will thus be seen that the only authority on which the objectors can hope to rely is P L D 1954 Lah. 265, but in my opinion learned counsel for the objectors, the Stamp Reporter and the Taxing Officer have failed to appreciate the real signi ficance of this decision, which, on analysis, does riot help the objectors. The first point to be noted is that Kaikaus, J. accepted the principle that cross‑objections are to be stamped on the value of the property, his argument, however, being that although according to Article 1, Schedule 1, which governs appeals and cross‑objections, court‑fee is to be paid on the value of the subject‑matter, value does not in every case mean the market value. He then went on to point out that even in section 7 (v) of the Court Fees Act the words used are "according to the value of the subject‑matter" but that the section provides how such value is to be computed. The fundamental point of distinction between that case and the present is that wheraas Nausha Bi's cast was one of possession and, therefore, came within the orbit of section 7 (v) of the Court Fees Act, the snit in the present cast was one for a declaration with consequential relief, falling within section 7 (iv) (c). Unlike section 7 (v), section 7 (iv) does not provide how the value of the subject‑matter is to be computed, A the plaintiff being, on the contrary, entitled to place his own valuation on the relief sought. That priviledge is not extended to cross‑objections, and under Article 1 of Schedule I of the Court Fees Act the amount or value of the subject‑matter in the present case is undoubtedly the market value of the land in dispute, no rules of computation being given as in section 7 (v) of the Act.

5. I accordingly hold that P L D 1954 Lah. 265 is clearly distinguishable from the present case and that the remarks made therein, which refer to suits for possession, have no application toe cross‑objections arising out of suits for a declaration with consequential relief.

6. The cross‑objections in this case are consequently insuffi ciently stamped and the deficiency should be made good within a time to be fixed by the office. K. B. A./A. H. Order accordingly.