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2015 DIGILAW 1087 (KER)

SUNIL KUMAR, K. K. v. CHANDRASEKHARAN NAIR, P. K.

2015-08-06

ANIL K.NARENDRAN, P.N.RAVINDRAN

body2015
ORDER : P.N. RAVINDRAN, J. 1. This appeal was heard and dismissed by judgment delivered on 25-2-2015 along with R.F.A. No. 462 of 2003. R.F.A. No. 462 of 2003, the appeal filed by the plaintiff was allowed and the suit was decreed as prayed for with costs. The appeal filed by the defendant, viz; R.F.A. No. 507 of 2004 was dismissed. The defendant had earlier been permitted by this Court, by order passed on 13-9-2004 on C.M.C. (Indigent) No. 53 of 2003 to file the appeal as an indigent person. The Registry has after the appeal was dismissed, placed the file before us for the purpose of considering whether the defendant, the appellant in R.FA. No. 507 of 2004, should be called upon to pay the court fee payable on the memorandum of appeal or whether he is exempted from paying the court fee. 2. Rules 10, 11 and 11A of Order 33 of the Code of Civil Procedure which are relevant in the context of the clarification sought by the Registry read as follows: "Rule 10. Costs where an 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. Rule 11. Procedure where an indigent person fails.-Where the plaintiff fails in the suit or is disappeared, or where the suit is withdrawn or where part of the claim is abandoned or where the suit is dismissed, - (a) because the summons for the defendant to appear and answer has not been served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 (may) order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court fees which would has been paid by the plaintiff, if he had not been permitted to sue as an indigent person. Rule 11 A. Procedure where an indigent person fails. - Where the suit abates by reason of the death of the plaintiff or of any person added as a co-plaintiff, the court shall order that the amount of court fee which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person shall be recoverable by the State Government from the estate of the deceased plaintiff." Rule 10 deals with the situation where the indigent person succeeds in the suit. Rule 11 deals with the situation where the indigent person fails and Rule 11A deals with the situation where the suit abates. Rule 10 states in express terms that where the plaintiff succeeds in the suit, the court shall calculate the amount of court fees which would have been paid by him, if he had not been permitted to sue as an indigent person and recover it from the party ordered by the decree to pay the court fee. Rule 11 provides that where the plaintiff fails in the suit or the permission granted to him to sue as an indigent person is withdrawn, or where the suit is withdrawn or part of the claim is abandoned or where the suit is dismissed on account of the two contingencies mentioned in clauses (a) and (b) of that rule, the court "may" order the plaintiff 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. Rule 11A states that where the suit abates by reason of the death of the plaintiff or any person added as a co-plaintiff, the court shall order that the amount of court fees which would has been paid by die plaintiff if he had not been permitted to sue as an indigent person shall be recoverable by the State Government from the estate of the deceased plaintiff. Rule 11 Order 33 of the Code of Civil Procedure was amended by this Court in exercise of the powers conferred by Section 122 of the Code of Civil Procedure, 1908 by notification No. Dl(A)-43450/86 dated 13th January, 1999 published in Kerala Gazette dated 27-4-1999. By that amendment, in clause (b) of Rule 11, the word "shall" was substituted by the word "may". By that amendment, in clause (b) of Rule 11, the word "shall" was substituted by the word "may". Such an amendment was brought about, as was held by a Division Bench of this Court in Joseph v. Kerala State Electricity Board 2012 (4) K.L.T. 870 to give effect to the Directive Principles of State Policy as contained in Article 39A of the Constitution of India which provides that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The Division Bench held that by virtue of the aforesaid amendment, the court has the discretion, having regard to the totality of the facts and circumstances of each case, to direct whether the party has to pay court fee; whether the court fee has to be paid at least proportionate to the success; or even whether any court fee is payable at all. 3. From a reading of Rule 11 Order 33 of the Code of Civil Procedure, as amended by the aforesaid notification, it is evident that the said rule confers a discretion on the court to decide whether the plaintiff should be mulcted with the liability to pay the court fee, in a case where the plaintiff who was permitted to sue as an indigent person fails. The same principle applies where an appellant who was permitted to file the appeal as an indigent person fails. It is evident from a reading of the judgment dismissing R.F.A. No. 507 of 2004 that this Court did not, while dismissing the appeal filed by the defendant, deem it proper to exercise such discretion. As held by the Division Bench in Joseph v. Kerala State Electricity Board (supra), Rule 11 Order 33 does not compel the court to pass an order regarding payment of court fee. The rule only confers a discretion on the court to pass an order as regards payment of court fee, having regard to the totality of the facts and circumstances of each case. The rule only confers a discretion on the court to pass an order as regards payment of court fee, having regard to the totality of the facts and circumstances of each case. It necessarily follows that if the discretion conferred on the court under Rule 11 Order 33 of the Code of Civil Procedure has not been exercised in favour of the unsuccessful appellant while disposing of the appeal, the unsuccessful appellant who has been allowed to file the appeal as an indigent person will necessarily have to pay the court fee payable on the memorandum of appeal. 4. The clarification sought by the Registry is answered accordingly.