In a suit of a pauper plaintiff in which the plaintiff's claim is partly decreed and partly dismissed, the court has a discretion to direct which party should pay the court-fee due to the Government. This discretion can be exercised under Sec. 35 of the Code of Civil Procedure.

Raj Kishore Prasad, J.

1. The sole question for determination, in the present appeal, is as to by which party the court fee payable by a pauper plaintiff, who is permitted to sue as a pauper under Order 33, Rule 8 of the Code of Civil Procedure, is to be paid when such a plaintiff partly succeeds and partly fails in such a suit.

2. The plaintiff brought a suit for recovery of arrears of maintenance parly at the agreed rate and partly at an enhanced rate, and also for future maintenance at the enhanced rate of Rs. 80.00 per month. For the three years immediately proceeding the suit, the arrears were claimed at this enhanced rate of Rs. 80.00 per month, but for the remaining years, arrears were claimed at the agreed rate of Rs. 202 per year, as fixed between the parties by their deed of agreement between them.

3. The learned Subordinate Judge, who decided the suit, decreed the plaintiffs suit in part. He "fixed the future maintenance at the rate of Rs. 45/-per month, as against Rs. 80.00 claimed by the plaintiff, and directed that this increased rate would take effect from the date of the suit. For the years prior to the institution of the suit, however, maintenance was allowed at the agreed rate of Rs. 202/-per year as fixed by the deed of agreement between the parties. As regards the court fee payable by the plaintiff, the learned Subordinate Judge directed that "the court fee payable in the case shall be realised by the Government from the defendants."

4. On behalf of the defendants, who are appellants before this Court, it was contended by Mr. L.M. Sharma that in a case like the present where the pauper plaintiffs suit has been partly decreed and partly dismissed, the court fee should be made payable by both in proportion to the success of the parses, and, therefore, the learned Subordinate Judge has exercised his discretion arbitrarily, without assigning any reason, as to why the entire court fees payable by the plaintiff should be realised by the Government from the defendants alone.

Mr. Sharma submitted that to such a case neither Rule 10, nor Rule 11 of Order 33, of the Code of Civil Procedure in terms apply, and, therefore the principle, which should govern such a case, should be the principle which has been laid down in a number of decisions by the different High Courts, which is to the effect that the court fee in such a case, where the pauper plaintiffs claim is partly decreed and partly dismissed, should be made payable proportionately by both the parties in proportion to their success. In support of his contention, he has relied on Ganga Dahal Rai V/s. Mt. Gaura, ILR 38 All 469: AIR 1916 All 327, which, was relied upon in Rami Reddi V/s. Chenchu Polamma, AIR 1930 Mad 1000, Srinivasa Ayyar V/s. Lakshmiammal, AIR 1928 Mad 216, Secretary of State V/s. Sundarammal, AIR 1926 Mad 474 and Badrinath V/s. Jagdip Sahay, AIR 1930 Pat 353(2).

He, however, conceded that as he has confined his appeal only to Rs. 938/7/-, the appellants were prepared to admit their liabiliy to pay the court fee to the remaining extent but they cannot be made liable for the entire amount of court fee payable to the Government by the pauper plaintiff.

5. Mr. R.S. Sinha, who appeared for the plaintiff-respondent however, contested the contention of Mr. Sharma that the just mentioned principle should be considered as a cut and dry formula applicable to all such cases irrespective of the facts and circumstances of each particular case.

He therefore, contended that it is true that Rule 10, or Rule 11, of Order 33 of the Code, does not apply, in terms, to such a case, but, nevertheless the court has a discretion of its own in such a case, and when such discretion has been exercised properly, and not arbitrarily, by the court below, as in the present case, it should not be interfered with by this Court. In support of his contention, he relied, upon Rohini Kumar Pal V/s. Kusum Kamini Pal, ILR 55 Cal, 488 : AIR 1928 Cal 196 which was followed in Mu