Madhya Pradesh High Court
Smt. Hemprabha vs Smt. Angurbala on 8 May, 2024
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
FA No. 393 of 2020
(SMT. HEMPRABHA Vs SMT. ANGURBALA AND OTHERS)
Dated : 08-05-2024
Shri Vishal Bhati - Advocate for the appellant.
Shri V.K. Jain- Senior Counsel with Shri Vaibhav Jain- Advocate
for the respondent No.1.
Heard on the objection filed vide document No. 296/2023 by
respondent and reply filed by the appellant as document No.
7772/2023 on the report of the Taxing Officer regarding valuation of
the appeal and court fees submitted in compliance of order dated
05.04.2022.
2. The facts in brief are that the appellant Smt Hema Prabha
filed a suit for declaration of title and declaration of agreement dated
06.08.2013 as null and void regarding House situated at Jawahar Marg,
Ward No. 2, Town- Manawar, District Dhar admeasuring 60 feet in the
north-south and 15 feet in east west and for permanent injunction
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before the Additional District Judge Manawar. Appellant/Plaintiff
valued the relief prayed as Rs. 30 lacs for the purpose of jurisdiction
and Court fees and paid a maximum Court fees of Rs. 1,50,000/-.
3. Respondent No. 1/Defendant No. 1 filed a counter claim
for Specific Performance of Contract dated 16.08.2013 against the
appellant/plaintiff regarding 900 Sq.ft. house and permanent injunction
for restraining the appellant/plaintiff against the disputed land and to
deliver the possession of the disputed house to the defendant No.
1/respondent No. 1 and mandatory injunction and valued the relief
prayer as Rs. 15 lacs and the purpose of jurisdiction and Court fee and
paid the Court fees of 1,10,000/- on counter claim.
4. Defendant No.2/Respondent no. 2 filed a separate written
statement and plaintiff/appellant filed a reply of counter claim filed by
Respondent No. 1/Defendant No. 1.
5. Trial Court proceeded to try the suit and counter claim
simultaneously and framed a total seven issues, recorded the evidence
of both the parties and decided the suit and counter claim by common
judgment and decree dated 28.01.2020 in Civil Suit No. 12-A/2014
and dismissed the suit of the plaintiff/appellant and decreed the
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counter claim filed by Respondent No. 1/ Defendant No. 1 for Specific
Performance of Contract.
6. Challenging the judgment and decree dated 28.01.2020
passed by the Trial Court this appeal has been preferred by the
appellant/plaintiff for decreeing the suit filed by the plaintiff/appellant
and setting aside the counter claim filed by Defendant No. 1/
Respondent No. 1 and valued the appeal for the purpose of Court fees
as Rs. 30 lacs and paid the maximum Court fess of Rs. 1,50,000/-.
7. Vide order dated 05.04.2022, Taxing Officer was directed
to submit a report on the allegations regarding insufficeint of Court
fees and the Taxing Officer vide report dated 23.06.2022 submitted
that the valuation of the appeal memo should have been made
according to the value of the sale consideration of the agreement i.e
Rs. 30 lacs and proper Court fees should have been paid by the
appellant on the appeal memo, would be Rs. 1,50,000/- which is the
maximum Court fees prescribed under Article 1-A of Schedule-I of the
Court Fees Act, 1870.
8. Respondent/defendant filed objection vide Document No.
296 of 2023 on the ground that counter claims is a separate suit for all
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practical purposes, therefore Court fee payable in the present matter is
Rs.2,60,000/- as in the trial Court, the present appellant has filed a suit
for declaration and permanent injunction and before the trial Court the
present appellant/plaintiff has valued the suit at Rs. 30 lacs and has
stated that Court fees payable on the suit valuation is Rs. 1,50,000/-
and the counter claim for specific performance of the contract and for
possession, was valued Rs. 15 lacs and Court fees of Rs. 1,10,000/-
was paid by respondent No.1/defendant No.1.
9. It is submitted on behalf of the defendant No.1/respondent
No.1 that it is a settled position of law that if counter claim is decreed
and the plaintiff seeks to challenge the same in the appeal then he has
to pay the Court fees according to the valuation of the counter claim
and to the extent the counter claim is decreed by the trial Court.
10. It is further submitted that in the present appeal, the
appellant is not only claiming the relief for decreeing the suit for
declaration and for permanent injunction, but is also claiming the relief
for setting aside the decree with respect to counter claim and dismissal
of the counter claim which is for specific performance of contract and
possession. Thus, the appellant is liable to pay Court fee as payable in
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suit and also Court fee, which is paid on the counter claim.
11. The appellant plaintiff replied to the same objection vide
Document No. 7772/2023 and submitted that the maximum limit for
payment of Court fees on plaint, appeal, set-off, counter claim etc. is
Rs. 1,50,000/- as per the Court fees (Madhya Pradesh Amendment)
Act, 2008. The suit and counter claim was decided jointly by the
learned Trial Court and one appeal is filed by the appellant and
maximum Court fees payable is Rs.1,50,000/- which has been paid. No
Court fees of Rs. 2,60,000/- is required to be paid as projected by
respondent No.1/defendant No.1. The appellant plaintiff relied on
Fatehchand Vs. Land Acquisition and Rehabilitation Officer and others
reported in 2009 (4) MPLJ 50 and Balashankar Traders through
Partner Vs. Jhanwar Ice and Cold Storeage through Partner reported in
2013 (2) M.P.L.J 270.
12. Through written submission filed on 19.04.2024 and
additional written statement filed on 26.04.2024, respondent No.1 has
argued in support of objection on the report of Taxing Officer vide
Document No.296 of 2023 that :-
A. It is settled position of law that the counter-claim is a
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separate suit, though in the same proceeding citing Essemm Logistics
vs DARCL Logistics, 2023 SCC Online SC 542 in which it is held
that it is well recognized that in view of Order VIII Rule 6-A (4) CPC,
a counter-claim is virtually a plaint and an independent suit and citing
Babulal Sobhagmal Modi vs Union of India, 1997(2) MPLJ 50 and
Smt. Parvathamma vs Lokanath, AIR 1991 Karnataka 283 it is arged
that the counter-claim has to be treated as a cross-suit.
B. Separate Court fees is payable in first appeal for
challenging the decree in counter-claim citing Nherapoyil vs
Narayanan, AIR 1997 Kerela 318 in which it is held that, "by non-
payment of Court fee on the counter claim in appeal, the appellate
Court is not in a position to consider the question of counter claim".
C. Decree passed on plaint as well as on counter-claim both
has to be challenged and Court fees is required to be paid for both, i.e.
challenge to decree in plaint & decree in counter-claim, even if there is
common decree citing Smt. Parvathamma vs Lokanath, AIR 1991
Karnataka 283 and Babulal Sobhagmal Modi vs Union of India,
1997(2) MPLJ 50 and Shri Pooran Industries vs Suvina's Enterprises,
2006 SCC OnLine Raj 45 = AIR 2007 Raj 47 in which it is held that,
"Section 47 of the Act provides that the fee payable in an appeal shall
be the same as the fee that would be payable in the Court of first
instance on the subject matter of the appeal....... Counter-claim shall
be treated as plaint..... If Court fee is not paid on the counter-claim in
the appeal, the appellate Court would not be in a position to consider
the question of counter-claim........." and citing Pampara Philip vs
Koorithottiyil Kinhimohammed, 2006 SCC OnLine Ker 251 and Smt.
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Shazadi Begum vs Vinod Kumar, AIR 1978 MP 20 in which it is held
that, "We might first take up the second branch of the preliminary
objection regarding deficiency of Court-fee. Admittedly no Court-fee
has been paid on the amount of Courts claimed by the appellant in the
memo of appeal. The appeal, therefore, so far as the prayer for award
of cost is concerned is liable to be rejected......."and citing . In
Thakur Ram Janki Virajman Mandir vs Kanhaiya Das,
MANU/UP/0296/2016 & in Kanhaiya Das vs Thakur Ram Janki
Virajman Mandir, Manu/UP/1965/2014 - in which it is held that,
"Court fees for challenging dismissal of suit is payable as also court
fees for challenging the decree in counter-claim is payable".
D. If there is a suit and also a counter suit, and even if both
are tried together and common judgment is passed then also in appeal
Court fees for both the suits will be payable, relying on Mallanna vs
Smt. Muninanjamma, 2001 SCC OnLine Kar 106 ; Harbans Singh vs
Sant Hari Singh, (2009) 2 SCC 526 ; Buta Singh vs Union of India,
(1995) 5 SCC 284 ; Darayas Bamansha Medhora vs Nariman
Bamansha Medhora, 2001 SCC OnLine Guj 207 = AIR 2002 Guj 166 ;
Ram Prakash vs Smt. Charan Kaur, AIR 1997 SC 3760 ; Premier Tyres
vs Kerala State Road Transport Corporatino, 1993 Supp (2) SCC 146
and Sheodan Singh vs Daryao kunwar, AIR 1966 SC 1332.
E. An appeal, challenging the decree passed by trial Court on
counter-claim, is an appeal within the appeal. It is settled position of
law that a counter claim is a separate suit within the suit.
13. On the basis of above submissions it is argued that
separate Court fee is payable on counter claim. That means maximum
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Court fees paid on plaint will not work for counter claim. Rather as far
as counter-claim is concerned upto maximum Court fees is again
payable on counter-claim as it is separate suit within the same suit.
14. It, is further argued that the decree passed with respect to
counter-claim is a decree passed in separate suit within the same suit.
Thus, even if a common decree is prepared for dismissal of suit and
decreeing of counter-claim, then also it is legally two decrees. Thus,
an appeal, filed challenging the said decree, would be an appeal
challenging the decree passed in suit, and as far as decree passed on
counter claim is concerned, it would amount to appeal within the same
appeal. Thus, just like the suit, in the said appeal also, the appellant
would be required to pay Court fees as paid on plaint and also Court
fees as paid on counter claim.
15. Perused the record.
16. To resolve the issue raised in this case, firstly we have to
determine whether the appellant is required to file separate appeals
challenging the decree passed against him in the suit filed by him and
the decree in counter claim filed by the respondent in the same suit or
both the decrees can be challenged in the single appeal.
17. We find the answer in Narhari and others Vs. Shankar
and others reported in AIR 1950 (SC) 419 in which it is held that,
"It is now well settled that where there has been one
trial, one finding, and one decision, there need not be
two appeals even though two decrees may have been
drawn up".
18. Accordingly, when the suit claim is dismissed and the
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claim in the counter claim is allowed, then there is no warrant to file
two appeals, but what is required to be done is that the valuation has to
be composite i.e the valuation of the suit and counter claim, and Court
fee have to be paid, accordingly. This view finds support from the
judgment passed by High Court of Bombay in Shankar Masu Dokare
Vs. Shobha Subhash Dokare reported in Laws (BOM)-2014-12-61.
19. In the case in hand , the dispute relates to a house situated
at Jawahar Marg, Ward No.2, Town Mandsaur, District Dhar regarding
which the appellant filed a suit for declaration of title and declaration
of Agreement dated 06.08.2013 as null and void and respondent
No.1/defendant No.1. It also filed a counter claim for specific
performance of contract dated 16.08.2023 against the appellant
plaintiff regarding 900 sq ft. house and permanent injunction for
restraining the appellant plaintiff against the disputed land and to
deliver the possession of the disputed house to the defendant
No.1/respondent No.1 and mandatory injunction.
20. The suit and counter claim were tried simultaneously and
the evidence was recorded in a single suit and the suit and counter
claim were decided by the common judgment. Thus, there was one
trial, one finding and one decision and the decree dismissing the suit
and decree in allowing the counter claim can be effectively challenged
in single appeal. Now come to the provisions of Court fees payable as
per the Article-1-A of Schedule-1 of the Court Fees Act, 1870. For the
convenience the entries of Article-1-A of Schedule-1 of the Act is
reproduced as under :-
Number Proper Fee
1-A Plaint, written When the amount or Twelve percent subject
statement pleading a set- value of the subject to a minimum of one
off or counter claim, or matter in dispute does not hundred rupees.
memorandum of appeal exceed five lacs rupees.
(not otherwise provided
for in this Act) presented
to any Civil or Revenue
Court except those
mentioned in Section 3 When such amount or Sixty thousand rupees
value exceeds five lacsplus seven percent on
rupees but does not the amount or value in
exceed ten lacs rupees.excess of five lacs
rupees.
When such amount or Ninety five thousand
value exceeds ten lacs rupees plus three
rupees : percent on the amount
or value in excess of ten
lacs rupees subject to a
maximum of One lac
and fifty thousand
rupees.
Provided that minimum
fee leviable on a
memorandum of appeal
shall be one hundred
rupees."
21. In this appeal what is required to be done was that valuation of the
appeal has to be composite i.e 45 lacs ( valuation of the suit Rs.30 lacs and counter
claim i.e Rs 15 lacs) and Court fees have to be paid, accordingly. This appeal is filed
after coming into force of M.P. Act 6 of 2008 with effect from 02.04.2008 and as per
Article 1-A of Schedule, the limitation of maximum of Rupees one lac and fifty
thousand as proper fees would be applicable. Appellant is not required to pay Court
fees payable on counter claim again after paying the maximim Court fees.
22. In this appeal the appellant has valued the appeal only Rs. 30 lacs and
has paid a total Rs. 1,50,000/- Court fees, which is a maximum limit for a
memorandum of appeal.
23. The appellant has to value the appeal Rs. 45 lacs (Rs. 30 lacs + 15 lacs)
and is required to correct the valuation, but objection regarding payment of Court fee
has no substance as he has paid the maximum Court fees and the objection relating
to report of Taxing Officer dated 05.04.2022, regarding the sufficiency of proper
Court fees is rejected, but the objection regarding the valuation of the appeal is
sustained and the appeallant is directed to correct the valuation, as above, within a
period of seven working days' from the date of this order.
Matter be listed thereafter.
( GAJENDRA SINGH )
JUDGE
rashmi
RASHMI PRASHANT
2024.05.08 18:33:24
+05'30'
