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Judges : K.A.MOHAMED SHAFI,P.R.RAMAN
Dev - Appellant
Versus
Chief Secretary, Government of Kerala - Respondent
Case No : C.M.P. No. 1323 of 2003 in A.S. No. 156 of 1994
Decided On : 07/11/2003
Advocates Appeared :
Govindh K. Bharathan; For Petitioner Government Pleader; For Respondent.
Civil Procedure Code 1908 – Sections 35,151 and 152 – Order XXIII Rule 10 & 11 – Rule 11 Order XXXIII – Rule 11 Order 33 –Issue on dismissal of suit , pay of Court fee– The counsel for the petitioner submitted that in view of the scheme failure in a suit cannot be equated with the dismissal of the suit since dismissal has been dealt with separately –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 of evidence and since the suit is dismissed for insufficiency of evidence, it cannot be treated as failure as contemplated in R.11 of O.33 of the C.P.C. – 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 –Held, In this case the question to be considered is whether in case of failure of the plaintiff in the suit or appeal court fee is payable on the plaint or memorandum of appeal –Therefore, the facts and circumstances of this case and the facts obtaining in the above reported case before the Patna High Court are entirely different –Court has already found that in case the plaintiff suing as indigent person succeeds in part and fails in part, he is liable to pay court fee in proportion to his success under R.10 of O.33 of the C.P.C – Therefore, the argument advanced by the counsel for the petitioner has to be rejected –Court is not called upon to pronounce on the issue as to whether the State will be able to realise the court fee payable on the plaint and memorandum of appeal by the petitioner in this case under due process of law –in fact seeks review of the judgment and decree passed by this Court in the above appeal which is not permissible under law –In view of what is stated above, court find that the petitioner who was permitted to institute the above suit and appeal as indigent person is liable to pay the court fee payable on the plaint and memorandum of appeal as he failed in the suit and appeal since both are dismissed by the trial Court and this Court –His contention that he is not liable to pay court fee since he continues to be indigent person is not sustainable –Petition dismissed
1. This petition is filed by the plaintiff appellant under S.151 and 152 of the C.P.C. seeking correction of the judgment and decree passed by this Court dated 13.9.2002 in A.S.156/1994 by deleting the direction to the District Collector to recover the court fee payable by the appellant since he is not liable to pay court fee and he has no means to pay the same.
2. The petitioner filed the above suit in O.S.67/88 before the Subordinate Judge's Court, Cherthala as indigent person against the State claiming damages of Rs.10 lakhs. That suit was dismissed by the lower court by decree and judgment dated 30.7.1991. The above appeal in A.S.156/94 is also preferred by the petitioner against that decree and judgment as indigent person. The appeal was dismissed by this Court by judgment dated 13.9.2002 confirming the decree and judgment passed by the lower court. In the judgment this Court directed the Registry to send a copy of the judgment and decree to the concerned District Collector for realisation of the court fee payable on the plaint and memorandum of appeal.
3. The petitioner has filed the above petition to delete the direction against him to pay the court fee payable on the plaint and memorandum of appeal. The petitioner has contended that under 0.33, R.10 of the C.P.C. only when the plaintiff or the appellant succeeds in the suit or appeal, the court fee payable on the plaint or memorandum of appeal has to be calculated and the Government can recover the same from any party ordered by the decree to pay the same. Therefore, he contended that in view of the fact that he did not succeed in the suit and appeal, he is not liable to pay court fee payable on the plaint and the memorandum of appeal which were permitted to be filed as indigent person since he continues to be an indigent person and he is not dispaupered.
4. We heard the counsel for the petitioner and the Government Pleader in extension.
5. O.33 of the C.P.C. deals with suits by indigent persons. 0.33, R.10 provides for costs when an indigent person succeeds which reads as follows:
"10. Costs where indigent person succeeds :- Where the plaintiff succeeds in the suit, the Court shall calculate the amount of court fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person; such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit."
6. O.33, R.11 deals with the procedure where an indigent person fails which reads as follows:
"Procedure where indigent person fails :- Where the plaintiff fails in the suit or the permission granted to him to sue as an indigent person has been withdrawn, or where the suit is withdrawn or dismissed,?
(a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the court fee or postal charges (if any) chargeable for such service or to present copies of the plaint or concise statement, or
(b) because the plaintiff does not appear when the suit is called on for hearing, the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person."
7. The counsel for the petitioner submitted that since a person who is permitted to sue as an indigent person continues to be as such till he is dispaupered, there is no question of payment of court fee payable on the plaint etc. when he did not succeed in the suit. According to him, while provisions of 0.33, R.10 deals with costs where indigent person succeeds in the suit etc., R.11 deals with the payment of court fee when he is dispaupered, or the suit is withdrawn or the suit is dismissed for default due to the contingencies mentioned in Cls.(a) and (b) of 0.33, R.11. According to him, in order to attract the provisions of
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