JUDGMENT

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 18.2.1981.

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 this case."

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 i