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2013 DIGILAW 207 (ORI)

Laxmidhar Mahasuar v. Satyanarayan Dev

2013-07-12

R.DASH

body2013
JUDGMENT 12.07.2013 – The amount of court fee payable on the cross-objection filed by the respondents-Cross Objectors is in dispute. The Cross-Objectors have paid Rs.45/-as court fee on the cross-objection whereas the Stamp Reporter has noted that since the cross-objection arises out of a suit for partition fixed court fee of Rs.3,00/-is payable. 2. Learned counsel for the Cross-Objectors submits that the cross-objection being against adverse finding to support the decree passed by the learned lower appellate court and not against the decree impugned in the Second Appeal, the cross-objection is to be treated as an application and court fee has to be paid accordingly but not in accordance with the note made by the Stamp Reporter. In support of his contention he cited a decision in Ismail Khan vs. Shankarlal Chourasia, reported in AIR 1984 MP 139 wherein it has been held that cross-objection preferred under Explanation to Rule 22 (1), O.41 CPC is to be treated as an application and court-fee has to be paid accordingly. 3. Order 41, Rule 22, C.P.C. gives two distinct rights to the respondents. The first is the right of upholding the decree on any other grounds on which the lower court decided against him; and the second is the right of taking any cross-objection to the decree which the respondents might have taken by way of appeal. In the first case the respondent supports the decree and in the second he attacks the decree. Thus, the first part of the Rule authorizes the respondent only to support the decree. It does not authorize him to challenge it. Keeping this settled position of law in mind, it is to be decided as to whether the cross-objection under consideration comes within the first part of Sub-Rule (1) of Rule 22 and the Explanation thereto. Learned trial court decreed the Suit declaring that plaintiff Nos.2 to 4 have jointly 5 days sevapali, plaintiff No.5 has 7 days sevapali, plaintiff No.6 has 3 days sevapali and defendant No.1 has 15 days sevapali in a month in the temple of deity Satyanarayan Dev. Learned trial court decreed the Suit declaring that plaintiff Nos.2 to 4 have jointly 5 days sevapali, plaintiff No.5 has 7 days sevapali, plaintiff No.6 has 3 days sevapali and defendant No.1 has 15 days sevapali in a month in the temple of deity Satyanarayan Dev. But in the First Appeal, from which the present Second Appeal arises, the learned lower appellate court allowed the appeal in part with further observation that “the impugned order is modified on declaration of half share of the Plaintiff Nos.2 to 6 and half share of defendant No.1 in the sebapali of plaintiff No.1, rest portion of the order remaining unchanged”. Cross-Objectors are the plaintiffs before the trial court and respondents before the lower appellate court. Since the appeal has been allowed in part and the decree of the learned lower court with regard to ‘sebapali’ of the deity has been modified by the learned lower appellate court, the Cross-Objectors, whose right to sebapali has been adversely affected, have filed the cross-objection with the following relief: “Let this memorandum of cross-objection be admitted and hearing the counsels for the parties upon notice, the suit of the plaintiffs’ be decreed in respect of the sevapali while setting aside the findings given by the learned lower appellate court refusing to declare the title of the sevapali on the basis of sale and sebasamarpana patra to partition the same.” 4. A bare perusal of the prayer for relief made in the cross-objection reveals that the Cross-Objectors intend to challenge the decree seeking the relief of declaration of their right to the ‘sebapali’ which has been refused by the learned lower appellate court. They want to set aside the modification directed by the learned lower appellate court. The Cross-Objectors not only challenge the findings of the learned lower appellate court on any of the issues but also challenge the decree that stands modified to the extent as ordered by the learned lower appellate court in the impugned judgment. In the result, the cross-objection comes within the second part of Rule 21 (1) of Order 41 CPC. Therefore, the cross-objection cannot be treated as an application for the purpose of court fee payable thereon. Accordingly, the Cross-Objector respondents are directed to pay the court fee in accordance with the Stamp Reporter. Ordered accordingly.