Dev @ R. Vasudevan Nair Vs. Chief Secretary, Govt. of Kerala & Ors  Insc
583 (15 May 2007)
S.B. Sinha & Markandey Katju
CIVIL APPEAL NO. 2536 of 2007 [Arising out of S.L.P. (C) No. 13885 of 2004]
S.B. SINHA, J.
1. Leave granted.
2. Interpretation of the provisions of Order XXXIII Rule 10 and Order XXXIII
Rule 11 of the Code of Civil Procedure as amended in the State of Kerala is in
question in this appeal which arises out of a judgment and order dated
11.7.20003 passed by the High Court of Kerala at Ernakulam in CMP No. 1323 of
2003 in A.S. No. 156 of 1994. Appellant herein filed a suit for damages against
the State of Kerala inter alia on the premise that he had lost an eye having
been a victim of violence of political vendetta as he had suffered facial
injury as a result of throwing of an acid bulb on his face. The said suit was
filed in terms of Order XXXIII of the Code of Civil Procedure as he claimed
himself to be an indigent person. The persons accused of throwing acid bulb on
the face of the appellant, however, stood acquitted by a judgment dated
3. He filed a suit for damages in the year 1988. The State denied and
disputed its vicarious liability for payment of any damages suffered by the
appellant. The suit was dismissed by the learned subordinate Judge Cherthala by
a judgment and decree dated 30.7.1991 inter alia holding :- (i) The suit was
barred by limitation.
(ii) Appellant had not established that the Police was duty bound to give
protection to him.
4. An appeal was preferred thereagainst in the year 1994. The said appeal
was also allowed to be filed by him as an indigent person. The said appeal was
dismissed by the High Court by a judgment and decree dated 13.9.2002 inter alia
holding that the suit was rightly held to be barred by limitation. It was
furthermore directed:- "16. Hence we find that the above appeal is devoid
of any merits. Therefore the appeal is dismissed confirming the judgment and
decree passed by the lower court."
5. A miscellaneous application was filed by the appellant in the said suit
purported to be for clarification of the said direction of the High Court
contained in its judgment dated 13.9.2002. The High Court by reason of the
impugned judgment refused to do so relying on some decisions relied on by the
parties before it stating:- "18. It is clear from the above rulings of the
various High Courts and this Court that a person who is permitted to sue as
indigent person is liable to pay the court fee which would have been paid by
him if he was not permitted to sue as indigent person, if he fails in the suit
after trial or without trial since the ultimate decision or the result of the
suit and not the manner or mode in which the decision is arrived is envisaged
under Rule 11 of Order XXXIII of the Civil Procedure Code.
19. The counsel for the petitioner submitted that in view of the scheme of
Order 33 of the C.P.C. failure in a suit cannot be equated with the dismissal
of the suit since dismissal has been dealt with separately under clauses (a)
and (b) of Rule 11. According to him, failure should be a total failure of the
entire claim in the suit and the suit should be devoid of any merit, any rhyme
or reason without possessing a modicum of success. He argued that in this case
the petitioner-appellant failed in the suit due to lack to evidence and since
the suit is dismissed for insufficiency of evidence, it cannot be treated as
failure as contemplated in Rule 11 or Order 33 of the C.P.C. He further argued
that in the judgment passed by this Court in appeal this Court merely dismissed
the appeal and has not held that the plaintiff has failed in the suit.
Therefore, according to him, Rule 11 of Order 33 is not attracted at all in
It was further held:- "23. The question whether the plaintiff suing as
a pauper is liable to pay court fee when he succeeds in respect of part of the
claim made by him in the suit was considered and settled by the Madras High
Court way back in the year 1891. In the decision reported in I.L.R. (1891) 14
Madras 163 (Chandrareka V. Secretary of State for India) a Division Bench of
the Madras High Court held that the plaintiff in that partition suit who
obtained a decree for Rs. 100/- being a moiety of the property claimed is
liable to pay court fee with regard to the sum of Rs. 100/- and the 1st
defendant who contested the suit is liable to pay court fee for the balance
amount under Section 411 of the C.P.C. of 1882."
It was opined:- "31. Hence, the petitioner who is the plaintiff in the
suit and appellant in the appeal cannot escape from his liability to pay the
court fee payable on the plaint and on the memorandum of appeal in this case as
he failed in the suit and appeal by merely contending that he still continues
to be an indigent person and a man of no means.
32. The questions whether the indigent plaintiff is liable to pay the court
fee on his failure in the suit and whether the State could recover or realize
the court fee payable by him under due process of law are separate and distinct
matters to be considered independently. We are not called upon to pronounce on
the issue as to whether the State will be able to realize the court fee payable
on the plaint and memorandum of appeal by the petitioner in this case under due
process of law.
33. It is also pertinent to note that the petitioner herein by filing the
above petition purporting to be for correction of the judgment and decree under
Sections 151 and 152 of the C.P.C. in fact seeks review of the judgment and
decree passed by this Court in the above appeal which is not permissible under
6. Appellant is, thus, before us.
7. Mr. A. Raghunath, learned counsel appearing on behalf of the appellant in
support of this appeal submitted that Order XXXIII Rule 11 of the Code of Civil
Procedure will have no application unless the conditions precedent laid down
therefor are satisfied. It was urged that a person despite dismissal of a suit
and an appeal filed by him in forma pauperis may continue to be an indigent
person and the Scheme of the Act will be defeated if a direction is issued to
recover the amount of court fee from him.
8. Order XXXIII of the Code of Civil Procedure deals with suits by indigent
persons whereas Order XLVI thereof deals with appeals by indigent persons. When
an application is filed by a person said to be indigent, certain factors for
considering as to whether he is so within the meaning of the said provision is
required to be taken into consideration therefor. A person who is permitted to
sue as an indigent person is liable to pay the court fee which would have been
paid by him if he was not permitted to sue in that capacity, if he fails in the
suit of the trial or even without trial. Payment of court fee as the scheme
suggests is merely deferred. It is not altogether wiped off.
Order XXXIII Rule 10 of the Code of Civil Procedure provides for the
consequences in regard to the calculation of the amount of court fees as a
first charge on the subject matter of the suit.
9. For calculation of court fee, there does not exist any distinction
between a situation attracting Rule 10 on the one hand and Rule 11 on the
other. The court fee is to be calculated on the amount claimed and not on the
amount decreed. For the said purpose, what is relevant is the final decision
taken by the court in this behalf. Rule 11 directing the pauper plaintiff to
pay the court fee can be made in the four different situations.
(i) When the plaintiff failed in the suit.
(ii) Where the plaintiff is dispaupered.
(iii) Where the suit is withdrawn.
(iv) Where the suit is dismissed under the circumstances specified in clause
(a) or clause (b).
10. When, therefor, the plaintiff fails in the suit or plaintiff is
dispaupered, the same has nothing to do with dismissal of the suit under the
circumstances specified in clauses (a) and (b).
11. Submission of Mr. A. Raghunath, learned counsel for the appellant that
clauses (a) and (b) would attract all the four situations contemplated by Order
XXXIII Rule 11 in our opinion is misconceived. Clauses (a) and (b) would be
attracted only when the suit is inter alia dismissed by reason of the
contingencies contained in clauses (a) and (b). Clauses (a) and (b) will have
no bearing and/or relevance, when a suit is dismissed on merit or when the
plaintiff is dispaupered.
12. For the purpose of construction of the aforementioned provisions, it is
necessary to give effect to all the conditions mentioned therein. As in three
out of the four contingencies in the Rule, the order has to be passed when the
suit comes to an end, it will be a fair construction to hold that clauses (a)
and (b) refer to the fourth condition. We fail to see as to how the same can be
held to be attracted even in the former case. Each situation as referred to
hereinbefore is distinct and different. The word "or" is disjunctive
and thus must be given effect to independent of the other cases.
13. Reliance placed on a decision of the learned Single Judge of the Patna
High Court in Ram Saran and Others v State of Bihar and Others [AIR 1959 Patna
384], in our opinion does not advance the case of the appellant inasmuch as
therein the Court was concerned with a situation where a question arose as to
what would happen if the suit is decreed in part. It was held:- "8. From
rules 10 and 11 of Order 33, it follows, therefore that if the plaintiff's suit
is dismissed, the court has no discretion or option in the matter, but to order
the plaintiff or any added co-plaintiff to pay the court fee. In such a case,
the court cannot direct the court fee to be paid by the defendants. It must be
paid only by the plaintiff, or the co-plaintiff as the case may be, and by none
else. If, however, the plaintiff succeeds in the suit, the court has been given
a discretion to direct from which party the court fee shall be payable. In such
a case, the court has been given a wide discretion.
It can direct the entire court fee to be paid either by the plaintiff, or
the defendant, or both. On the facts and circumstances of each particular case,
the court can exercise its discretion, and direct the court fee to be payable
accordingly. But to a case like the present, where the suit has been decreed in
part, that is, the plaintiff's claim has been partly allowed and partly
disallowed, there is no provision in the Code which in terms applies. The Code
has not laid down anywhere the procedure which is to be followed by the court
in such a case. Obviously, therefore, to such a case neither rule 10, nor rule
11, in terms, would apply."
14. The decision relied on by the learned counsel therefore is itself an
authority for the proposition that in a case where Rule 11 of Order XXXIII is
attracted, the Court cannot direct the defendant to pay the court fee and it
must be paid by the plaintiff or the co-plaintiff.
15. We, therefore, are of the opinion that there is no infirmity in the
impugned judgment. The appeal is dismissed. However, in the facts and
circumstances of the case, there shall be no order as to costs.
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