The court has discretion under section 35 of the Code of Civil Procedure to award costs, and this discretion is not subject to the provisions of rules 10 and 11 of Order 33 of the Code of Civil Procedure, which apply only to cases where the pauper plaintiff succeeds or fails entirely.

( 1 ) 1. This appeal by the defendant is directed against the judgment and decree dt. 14-7-1972 made In O. S. 298 of 1969 on the file of the II Additional judge, City Civil Court, Hyderabad, by which the suit instituted by the respondent was partly decreed. That suit was instituted by the wife-respondent In forma pauperis, claiming the return of articles mentioned in a Schedule or their value of Rs. 12,000/- and for costs.

( 2 ) THE point that arises for consideration in this appeal is whether the court can direct the defendant to pay the court fee on the plaint in the suit instituted in forma pauperis where the suit was partly decreed.

( 3 ) THE facts giving rise to the appeal may briefly be stated: The respondent was married to the defendant on 2-7-1967 and the marriage was consumated on 6-7-1967. Her father presented articles mentioned in the a schedule at the time of marriage of the plaintiff They were with the defendant as they were taken to the house of the defendant immediately after the marriage. The plaintiff stayed with the defendant for about 2 months. The defendant was acting under the influence of his sister-in-law. The plaintiff was a graduate. The defendant is a qualified doctor. It is stated In the plaint that the defendant was unusually intimate with his sister-in-law. The plaintiff became pregnant with the defendant and she was in her 4th month. The defendant was aware of that and thereafter he was abusing her with an ulterior motive at the instance of his sister-in-law. The defendant left the plaintiff at her parents house and thereafter he did not make any attempt to get her back and to maintain her. It is under these circumstances, the suit was filed for the return of a Schedule articles.

( 4 ) THE husband filed a written statement wherein the factum of marriage was admitted but it was alleged by him that she was pregnant due to her mis-conduct even before the marriage. He filed a petition for the nullity of marriage and even before the filing of that petition the plaintiff filed a pauper suit In which an ex-parte inventory was taken. The articles that were recovered In the inventory belong to the brother of the defendant and partly to the defendant. At the time of marriage the defendant gave jewelleries, sarees and other articles to the plaintiff which are still with her. The defendant never drove away the plaintiff. The allegation of illegal intimacy with the sister-in-law was characterised as wicked and denied.

( 5 ) THREE witnesses were examined for and on behalf of the plaintiff and three on behalf of the defendant. Exs. A-1 to A-4 were marked on behalf of the plaintiffs and Exs. B-1 to B-5 on behalf of the defendant.

( 6 ) THE Court below on a consideration of the pleadings, framed appropriate issuer, and held that the plaintiff is entitled to only items 68 to 71 of Ex A-5, the Commissioner s report and decreed the suit to that extent, dismissing the same with regard to the rest. The direction contained in the decree was to the effect that the parties should bear their respective costs and the Court fee payable was directed to be paid by the defendant.

( 7 ) AGGRIEVED by that decision, the defendant filed this appeal.

( 8 ) IT is strenuously contended by the learned Counsel for the appellant that Items No. 68 to 71 of the Commissioner s report do not belong to the plaintiff and therefore the Court below erred in passing a decree with respect to those items.

( 9 ) THE 1st point that arises for consideration is whether the plaintiff is entitled to items 68 to 71 mentioned in the Commissioner s report (Ex. A-5) The case of the plaintiff is that her parents presented a Schedule articles to her at the time of marriage, that of the defendant being that these articles were never presented and that he was never In possession.

( 10 ) THE inventory was taken by the Commissioner in the presrnce of the plaintiff. The plaintiff showed items no. 68 to 71 as the property belonging to her, They