- (1.) FOR the present, this case has come before us simply for the determination of the question whether the court-fees paid by the appellant are deficient. The office has reported that the appellant is liable to pay further court-fee of Rs. 245/ -. The appellant contends that the demand is not correct and, therefore, the matter has been referred to us by the office. In order to appreciate the point in dispute, it would be proper to state here briefly, the facts giving rise to this appeal. Respondent No. 1 Firm Dhanraj Santokh-chand of Sangariya Mandi, district Ganga-nagar filed a suit against the appellant namely the State of Bombay and respondent No. 2 i. e. the State of Rajasthan for recovery of Rs. 19,272/1/- with a prayer for pendente lite and future interest. The trial court has decreed the suit for the entire amount of Rs. 19,272/- against the appellant and dismissed it against respondent No. 2 It has also awarded interest pendente lite and for the future at the rate of 6% per annum. The appellant has valued the appeal at Rs. 19,272/1/- and paid court-fees only on this amount. He has not paid court-fees on the amount of interest decreed against him pendente lite nor for future interest. According to the office report, the appellant should also pay court-fees for the amount of interest pendente lite and future, while learned counsel for appellant contends that he is not liable to pay court-fees on interest after the institution of the suit. It is urged by learned counsel that no court-fees are payable on a plaint in respect of interest accruing after the institution of the suit and for the same reason, court-fees should not be charged on interest pendente lite or for the future interest which is entirely in the discretion of the court and not a matter of contract between the parties. In support of his argument, he has referred to Vithal Hari Athavle vs. Govind Vasudeo Thosar (1) and Mithoolal vs. Mst. Chameli (2 ). In the first case, the question about court-fee on interest was referred to the learned Judges by the District Judge and they simply observed that - "no additional stamp would be required on account of the claim for interest from institution of the suit uptill payment. It stands on the same footing as future mesne profits. " It may be observed that this case is not very helpful because the learned Judges decided the matter in a summary manner and did not give detailed reasons in support of their view It appears that this case was also cited in Seth Ratanchand vs. Gaindsingh Takhatsingh Kurmi (3), but it was not followed, with the following observation by Vivian Bose J.- "it is a decision of just five lines, and the only reason given is that a claim of this kind stands on the same footing as a claim for future mesne profits. It is obvious that future mesne profits cannot be ascertained until there has been an enquiry. With all due respect, I cannot see how that principle can be applied when the amount claimed is capable of exact computation. " The above view of the Bombay High Court was also considered in Jagnnath Prasad vs. Bhala Prasad Singh (4) and it was not held to be good law. With due respect me also do not find our way to agree with that opinion as it is not based on good reasons.
(2.) IN the second case cited by learned counsel for appellant, the suit for profits was decreed by the trial court for a certain sum of money with interest at 12% per annum upto the date of the suit and till the date of the decree and thereafter at 6% per annum. The defendants appealed impugning the correctness of the decree but no ground was specifically directed against the award of interest before the suit or pendente lite. It was in those circumstances that the following observation was made: - "the subject-matter of the appeal should, in the circumstances, be considered to be the principal amount of the suit and the interest upto the date of the suit Ad valorem court-fee is payable under Art. 1, Sch. 1, Court-fees Act, on the value of the subject-matter of the appeal. The stamp reporter thinks that the appellant ought to have paid court-fee on the amount of interest accruing at the rate awarded by the Court between the date of the suit and the date of the decree. This view might have been correct if the appellant had specifically challenged the decree of the trial court on the ground that no pendente lite interest should have been awarded. " It is clear that in (halt case the appeal was not directed against the award of interest pendente lite and it was for that reason that the learned Judges held that court fee was not payable. The office has, on the other hand, relied upon Bastimal vs. Lehriram (5 ). In that case plaintiff's suit was dismissed by the trial court. He had claimed pendente lite and further interest in the trial court and naturally the repeated the same prayer in the appellate court. The respondent contended that the appellate court could not award pendente lite interest since no court-fee was paid by the plaintiff in appeal. This objection was repelled by the learned Judge. It was observed that - "pendente lite or future interest is, generally speaking, neither a matter of contract nor of a definite rule of law, and as the granting thereof or at the rate at which it may be awarded is entirely a matter within the discretion of the court, it is not ascertainable, arid in any case, where the plaintiff appeals from the entire dismissal of his suit, it is not at all necessary for him to claim pending or further interest specifically, as such relief is more or less consequential or incidental. " Learned Judge, further proceeded to say that - "this principle is subject to certain exceptions viz,, where an appeal is solely directed to the obtaining of pendente lite or further interest or where the decree of the lower court definitely contains a direction as to such interest and it is endeavoured to get rid of it in appeal, in which cases court-fee may have to be paid on the amount of such interest where it can be ascertained ad valorem and where it cannot be ascertained under Art. 17 (vi) of the Court Fees Act. " It is this later remark which has been relied upon by the office. According to' the office report, the appellant is liable to pay ad valorem court-fee on the amount of interest pendente lite, and also on the amount of future interest as calculated upon the date of the appeal. It may be observed that according to Schedule I, Art. 1 of the Court-fees Act, ad valorem court-fee is Chargeable on the amount or value of the subj3ect-matter in dispute in the appeal Therefore, if the amount or value of the subject-matter in appeal is ascertainable then ad valorem court-fee must be paid on the same. If the amount or value of the subject-matter is not ascertainable, then Schedule II, Art. 17 (vi) of the Court-fees Act provides that a fixed fee mentioned therein should be charged. We have, therefore, to see what is the amount or value of the subject-matter in dispute in the present appeal. It may also be remarked here that it is not necessary in every case that the amount or value of the subject matter in the appeal should be the same as the amount or value of the subject matter in dispute in the plaint. It can vary in different cases For instance, although the value of the claim in the trial court be Rs. 5100/- it is open to the appellant to contest the decree for a lesser amount. In every appeal, therefore, it should be seen as to what is the value of the subject matter in the appellate court. There is no difference of opinion on the question that ad valorem court-fee is not payable on interest pendente lite or future, claimed in the plaint because it is entirely within the judicial discretion of the court to award or not to award such interest and it is not ascertainable at the time the suit is instituted. The position, however, charges when such interest is awarded by the trial court. So far as pendente lite interest is concerned, it does become ascertainable as soon as the decree is passed by the trial Court. Whether the trial court actually calculates and mentions the exact amount of interest in the decree or leaves the exact amount to be calculated at the time of execution does not make any difference because the defendant is left in no doubt that he has to pay a particular amount of interest. In appeal, he wants to get rid not only of the amount of interest accruing up to the institution of the suit but also of interest pendente lite which is added in the decree. The subject matter of dispute in appeal is, therefore, not only the principal and interest added up to the institution of the suit, but also interest added to the date of the decree. From this point of view, the defendant should pay court-fee also on the amount of interest pendente lite included in the decree. At the same time, we agree with the view taken in Mithoo Lal vs. Mt. Chameli (2) referred to above that if the appeal is not specifically directed against interest after the institution of the suit, it is open to the defendant not to raise such plea in the hope that if his appeal on the principal amount and interest to the date of the institution of the suit is allowed, the decree about interest pendente lite and further, would tumble down automatically. The correct view may therefore be summarised as below: - (1) In a case where the defendant brings an appeal simply against the amount of interest pendente lite he must pay ad valorem court-fees on that amount because that is ascertainable and that alone would be subject matter of dispute in appeal (2) In a case, however, in which the appeal is brought against the entire decree including interest pendente lite, the appellant need not pay court-fees on the amount of interest pendente lite if he does not raise any specific ground of appeal against it. In other words, if he says that he will have no objection to the interest pendente lite in case the main claim of the plaintiff is upheld, he need not pay court-fees on the amount of interest. (3) In case, however, the appellant raises a ground that he should not be held liable for interest pendente lite, even though the plaintiff's claim for the amount claimed till the institution of the suit is allowed, then he should pay court-fees because he attacks that part of the decree specifically and does not allow it to stand or fall along with the main case. Similarly about court-fee on future interest i. e. interest after the date of the trial court's decree, we are of opinion that in case the defendant brings his appeal only against future interest, then; since that matter alone would be the subject matter of dispute in appeal, he would be liable to pay court-fees for the same. The same view has been taken in Seth Ratanchand vs. Gaind Singh Takhat Singh Kurmi (3 ). If he brings an appeal against the main decree and does not raise any specific ground of appeal against the award of future interest in the hope that the order about future interest would become ineffective when the main decree is set aside, then he need not pay the court-fee because it does not specifically become a subject matter of appeal. See Mt. Keolapati vs. B. N. Varma (6 ). But, if while appealing against the decree he takes a separate ground of appeal that the order as to future interest must be set aside even though the remaining decree is maintained, then it certainly becomes the subject matter of appeal and he should pay the court-fee. There is however a difference of view on the question as to how much court-fee should be charged in an appeal on the question of future interest. In Seth Ratan Chand vs. Gaindsingh Takhat Singh Kurmi (3), it was held that ad valorem court-fee should be charged on the amount of future interest accruing upto the date of the appeal and for the balance a ten rupee stamp should be charged. With great respect, we may point out that it does not seem proper to divide the appeal on the question of future interest into two parts and to charge court-fees thereon under two different schedules and articles of the Court-fees Act. The subject matter of appeal on the question of future interest should be considered as one and indivisible. The exact amount of future interest is not ascertainable at the time of the filing of the appeal because future interest continues to the date of realization of the decree. The amount or value of the subject matter in appeal in this case, therefore, remains unascertainable and it seems proper that only a fixed court-fee stamp of Rs. 10/- should be charged under Schedule II Art. I7 (vi) of the Court-fees Act.
(3.) AS pointed out above, the appellant in the present case has taken a specific plea in para No. 13 both about pendente lite and future interest. It is urged by the appellant that the trial court has erred in allowing pendente lite and future interest and that it should dot have been allowed in the circumstances of the case. Thus, there being a specific plea against interest pendente lite and future the appellant must pay ad valorem court-fee on the amount of interest pendente lite and a fixed fee of Rs. 10/- for future interest. It is open to the appellant to drop these objections if it feels certain of its success in the main suit but in that case no relief would be available to it on this point in the event of its failure in the main case. We therefore order that if the amendment as suggested above is made by the appellant, the court-fee may not be charged, otherwise, it must be paid within one month from the date of this order. .;