Sheo Narain vs Radhey Shyam And Ors. on 6 September, 1972
On facts, which are analogous to the facts of the present case, in the case of Smt. Sardar Devi v. Nihalkaran, (AIR 1961 Raj 184), similar view was taken by the Rajasthan High Court. In that case the plaintiff-appellant had instituted a suit and obtained a decree for Rs. 11,500/- principal plus interest at a certain rate upto the date of the institution of the suit and the date of the decree, thereby making a total sum of Rs. 12,526.43 n.p. Thereafter the decree allowed interest to the appellant at 4 1/4% till realisation on the principal sum remaining due. The decree further allowed payment of the amount in instalments. The petitioner appealed against the decree granting instalments and paid a Court fess of Rs. 10/- only treating the memorandum of appeal as falling under Schedule II of Article 17 (vi) of the Court Fees Act. Objection was taken to the Court fees paid and it was urged that the appellant was liable to pay Court fees at the ad valorem rate on the difference between the amount claimed in appeal and the amount decreed and also on the difference to the appellant between getting his money on the date of the decree under appeal and getting it by instalments as ordered. The contention that ad valorem court-fees was payable was not accepted and it was observed that all the appellant suffers is that instead of getting the amount due at once the payment of the amount is postponed to certain periods by the instalments granted. In that situation the court held that it is difficult to put money value on the relief claimed by the appellant and held that memorandum of appeal fell under Article 17 (vi) of Schedule II of the Court-fees Act I am of opinion that in the present case also the appellant having questioned the trial Court's refusal to grant instalments this is a case where it is difficult to put a money value to the subject-matter of the appeal and the case was covered by Article 17 (vi) Schedule II of the Court-fees Act. Under Article 17 (vi) Schedule II of the Court-fees Act in a suit Where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by the Act, the court-fees payable is Rs. 10/-. The appellant's contention that ha was liable to pay court-fees of Rs. 1.50 paise, the memorandum of appeal being treated as an objection under Section 47 Code of Civil Procedure, is clearly untenable. Therefore, while I do not agree with the lower appellate court's view that ad valorem court-fees was payable on the entire amount decreed and hold that it is payable under Article 17 (vi) Schedule II of the Court Fees Act, the Court-fees paid appears to be deficient even upon that view by Rs. 8.50 paise.