The next question which arises is with regard to cross-objections. In my opinion, it is quite clear that if an appeal is rejected for non-payment of court-fee, cross-objections must fail with the appeal. Cross-objections, under Order XLI, Rule 22, are a method by which the respondent may himself complain against the decree appealed from, but the right to lodge cross-objections is only given to a respondent on an appeal, and if the appeal is rejected, there can be no respondent and no cross-objections. Sub-rule (4) of Rule 22 provides that when an appeal is withdrawn or dismissed for default, cross-objections may be proceeded with; but where an appeal is rejected, it cannot, in my opinion, be said to be withdrawn or dismissed for default. The cases on the subject were discussed by the Rangoon High Court in U Shin v. Maung Tha Gywe (1930) I.L.R. 8 Ran. 538, and the learned Judges there came to the conclusion that where the memorandum of appeal is rejected for non-payment of court-fees, the cross-objections must fail with the appeal. I think that decision is correct.
IN THE HIGH COURT OF BOMBAY
Appeal No. 56 of 1939
Decided On: 10.01.1941
Kashiram Chaudhuri Vs. Ranglal Motilalshet Marwadi
Hon'ble Judges/Coram:
J.W.F. Beaumont, Kt., C.J. and K.C. Sen, J.
Citation: AIR 1942 Bom. 242
Authored By : J.W.F. Beaumont, K.C. Sen
J.W.F. Beaumont, C.J.
1. In this appeal a preliminary objection was taken that the memorandum of appeal was insufficiently stamped, and the Court upheld that objection, and, acting under the power conferred by Section 149 of the Civil Procedure Code, 1908, gave the appellant three weeks' time in which to pay the proper amount of court-fee. He has not done so, and the appeal comes before us today for disposal.
2. The correct court-fee not having been paid, it is quite clear that under Section 4 of the Court-fees Act, and also under Order VII, Rule 11 read with Section 107 of the Civil Procedure Code, we are bound to order that the memorandum of appeal be rejected.
3. The first question which arises is whether we can, in making that order, direct the appellant to pay the costs of the hearing of the preliminary objection. Logically it seems to me rather difficult to reject an appeal, and then proceed to make an order for costs in the appeal; but at the same' time orders for costs are frequently made in these cases. The position is that the appellant managed to get his memorandum of appeal accepted by the office, which considered that it was properly stamped. The matter was brought before this Court; the question as to the amount of court-fee was argued by counsel on both sides, and in the result the appellant got a concession, in that he was allowed extended time in which to pay the court-fee. It certainly seems unreasonable that he should not be ordered to pay the costs of the hearing of the preliminary objection on which he failed, and, in my opinion, having brought the appeal before this Court and obtained an order of this Court in the appeal, the appellant can be ordered to pay the costs of the hearing of the preliminary objection, notwithstanding that the memorandum of appeal is ultimately rejected.
4. The question then arises as to the basis; on which the costs should be taxed, the appellant not having stamped his memorandum of appeal with the correct court-fee. Rule 130 of the Appellate Side Rules provides that when the Court awards costs in any matter without specifying the amount or the scale thereof and the amount thereof is not prescribed under any Act or rule, a sum of Rs. 30 shall be allowed as the advocate's fee. We think that that rule should be applied in this case. We, therefore, direct the appellant to pay Rs. 30 the advocate's fee of the respondents in the appeal.
5. The next question which arises is with regard to cross-objections. In my opinion, it is quite clear that if an appeal is rejected for non-payment of court-fee, cross-objections must fail with the appeal. Cross-objections, under Order XLI, Rule 22, are a method by which the respondent may himself complain against the decree appealed from, but the right to lodge cross-objections is only given to a respondent on an appeal, and if the appeal is rejected, there can be no respondent and no cross-objections. Sub-rule (4) of Rule 22 provides that when an appeal is withdrawn or dismissed for default, cross-objections may be proceeded with; but where an appeal is rejected, it cannot, in my opinion, be said to be withdrawn or dismissed for default. The cases on the subject were discussed by the Rangoon High Court in U Shin v. Maung Tha Gywe (1930) I.L.R. 8 Ran. 538, and the learned Judges there came to the conclusion that where the memorandum of appeal is rejected for non-payment of court-fees, the cross-objections must fail with the appeal. I think that decision is correct.
6. The case on which Mr. Gupte relies, Ayilu Reddi v. Venkata Reddi MANU/TN/0197/1930 : AIR1931Mad133 , in which a single Judge held that rejection of a memorandum of appeal for non-payment of court-fees amounted to dismissal for default within Order XLI, Rule 22(4), seems to me to have; been wrongly decided.
7. We, therefore, reject the appeal but direct the appellant to pay Rs. 30 respondent's costs, and make no order on the cross-objections.
K.C. Sen, J.
I agree.
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