The court has discretion in allocating costs, considering various factors such as the total amount claimed, the total amount decreed, and the capacity of the parties to pay court-fee.

1. This appeal is by the 1st defendant in a suit for recovery of damages arising out of the death of one T. K. Ali Koya, son of plaintiffs 1 and 2, by the injuries sustained on account of the accident involving the bus KLZ 175 of which the appellant-1st defendant was the owner. The 2nd defendant was the driver of the vehicle. The Kerala State Insurance Corporation is the third party. The plaintiffs who instituted the suit under Order XXXIII of the Code of Civil Procedure, inasmuch as they had not the capacity to pay court-fee, estimated their claim at Rs. One Lakh. The trial court at the first instance decreed the suit on 18-6-1976 for Rs. 96,100/-. However, on appeal, as per the judgment in A. S. No. 156 of 1976 dated 7-4-1977, this Court set aside the judgment of the court below and remanded the matter to that court for fresh disposal. As per the revised judgment, which is the one under appeal, the court below decreed a sum of Rs. 20,000/- with proportionate costs and interest thereon at 6 per cent from the date of plaint. The court also directed as follows:

"Out of this the sum of Rs. 20,000/- with interest payable as compensation will be paid by 3rd defendant namely the State Insurance Officer as provided in S.110(B) of the Motor Vehicles Act. The costs including the full court fee will be payable by defendants 1 and 2 alone and 3rd defendant will not be liable for the costs. A decree will be drawn up in the above terms. Send copy of the decree to the Collector of Kozhikode as provided in 0.32 (?)."

The ground taken in appeal and argued before us is confined to the question as to costs. The appellant had filed this appeal feeling aggrieved by the direction by the court below that the costs including the full court fee will be payable by defendants 1 and 2 alone and the 3rd defendant will not be liable for the costs.

2. The counsel for the appellant submitted that the direction in the judgment as to costs is patently erroneous. According to him, normally, as a rule, costs should follow the cause, and the costs received or given should be in proportion to the success or failure in respect of the suit claim by the respective parties. In support of this contention he relied on the decision of the Supreme Court in S.P. Majoo v. Ganga Dbar (AIR. 1969 SC. 600) where in Para.6, at page 604 of the report, the Supreme Court observed as follows:

"We accordingly allow this appeal to the extent indicated above and modify the decree of the Calcutta High Court. The plaintiff-respondent will be awarded costs proportionate to his success in the present suit as between attorney and client."

He also cited the decision of the Nagpur High Court in Jamshed Karimuddin v. Kunjilal Harsukh (AIR. 1938 Nagpur 530). In that decision arising out of a suit for damages for breach of the contract, it was observed:

"I therefore set aside the decree of the lower Appellate Court so far as the costs are concerned and direct that costs shall be proportionate to success and failure throughout."

That normally the costs should follow cause and it should be in proportion to the success or failure of the parties is a well accepted principle. That does not, however, mean that this is an invariable rule, and the court has no discretion in the matter. In fact, according to us, the acceptance of such a rigid principle would run counter to the provisions contained in S.35 of the Code of Civil Procedure which vest in the Court a discretion in the matter. No doubt, that discretion could not be exercised capriciously, arbitrarily, unfairly and unreasonably. All the same, when, on the facts and in the circumstances of the case, the court finds that where the plaintiff in a suit does not succeed fully, some equitable directions in regard to the burden with respect to the court-fee between the parties have to be given by the Court; it should not be considered to be powerless to do so. In this case, we have already noticed that the plaintiffs had estimated the claim at