Point of law: State has liberty to re-enact the repealed provision, if it is found repugnant or inconsistent with the Central enactment following the procedure under Article 254(2) of the Constitution.

ORDER :

A.Muhamed Mustaque, J.

1. The liability of the plaintiff, who has partly lost or completely lost the case to pay court fee under Order 33 Rule 11 of the Code of Civil Procedure, 1908 (CPC) is the question before this Full Bench, in reference. The reference is in the context of the amendments to the CPC, published in the gazette on 30/12/1999 and 23/05/2002, respectively, both of which subsequently came into force on 1/07/2002. The Division Bench, while referring this matter, noted the impact and effect of the State Amendment prior to the Central Amendments to the CPC and doubted the operation of the State Amendment after the 1999 and 2002 Amendments to the CPC.

2. We heard the learned counsels for the private parties as well as the learned Government Pleader.

3. Order 33 of the CPC refers to a suit by an indigent person. It specifically refers to recovery of court fees from the plaintiff when he succeeds in the suit and also when he fails in the suit. The reference is on the point involved when the indigent plaintiff fails in the suit. Order 33 Rule 11 CPC as it was originally, reads thus:

Where the plaintiff fails in the suit or the permission granted to him to sue as an indigent person has been withdrawn, or where the suit is withdrawn or dismissed,-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.

The above provision clearly states that the Court ‘shall’ order the plaintiff to pay the court fees which would have been paid if he had not been permitted to sue as an indigent person. The verb 'shall' denotes the mandatory recovery from the plaintiff when he fails in the suit.

4. The State Government issued a notification bringing an amendment to the CPC on 13/1/1999. The amendment to Order 33 Rule 11 CPC reads thus:

In Rule 11 of Order 33, the word “shall” occurring after clause “b” shall be substituted by the word “may”.

By virtue of the amendment, a discretion has been conferred upon the Court to recover the court fees from the plaintiff who failed. The State Amendment, no doubt, is repugnant to the Central enactment. The CPC falls under Entry 13 of List III-Concurrent List, Schedule 7 of the Constitution.

5. The CPC (Amendment) Acts, 1999 and 2002 brought radical changes to various procedures. However, the amendments had not touched procedures relating to indigent persons. The relevant provisions under Section 32 of the 1999 Amendment Act and Section 16 of the 2002 Amendment Act read as follows:

32. Repeal and savings.-(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except insofar as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.

16. Repeal and savings. - (1). Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far as such amendment or provisions are consistent with the principal Act as amended by this Act, stand repealed.

6. Section 32 of the 1999 Amendment Act and Section 16 of the 2002 Amendment Act states that all other State amendments prior to the commencement of the 1999 Amendment Act and the 2002 Amendment Act which are not consistent with the principal Act as amended by the Central enactment, stand repealed. The CPC amendments came into force with effect from 1/7/2002. The point therefore, that arises for consideration is whethe