R.V. Dev alias R. Vasudevan Nair Versus Chief Secretary, Govt. of Kerala and OTHERS – 15/05/2007

Calculation of court-fee: For calculation of court-fee, there does not exist any distinction between a situation attracting Rule 10 on the one hand and Rule 11 on the other. The court-fee is to be calculated on the amount claimed and not on the amount decreed. For the said purpose, what is relevant is the final decision taken by the court in this behalf. Rule 11 directing the pauper plaintiff to pay the court-fee can be made in the four different situations:

(i) When the plaintiff failed in the suit.

(ii) Where the plaintiff is dispaupered.

(iii) Where the suit is withdrawn.

(iv) Where the suit is dismissed under the circumstances specified in clause (a) or clause (b).

AIR 2007 SC 2698 : (2007) 6 SCR 886 : (2007) 5 SCC 698 : (2007) 7 SCALE 777

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R.V. Dev alias R. Vasudevan Nair

Versus

Chief Secretary, Govt. of Kerala and OTHERS

(Before : S. B. Sinha And Markandey Katju, JJ.)

Civil Appeal No. 2536 of 2007 (arising out of S. L. P. (C) No. 13885 of 2004), Decided on : 15-05-2007.

Civil Procedure Code, 1908—Order 33, Rules 10 and 11—Suit by indigent person—Calculation of court-fee—There does not exist any distinction between a situation attracting Rule 10 on one hand and Rule 11 on the other—The court-fee is to be calculated on amount claimed and not on amount decreed—What is relevant is final decision taken by court in this behalf.

Counsel for the Parties:

A. Raghunath, for Appellant

P. V. Dinesh, Mrs. Sindhu T. P. and K. R. Sasiprabhu, for Respondents.

Judgemen

S. B. Sinha, J—Leave granted.

2. Interpretation of the provisions of Order XXXIII, Rule 10 and Order XXXIII, Rule11 of the Code of Civil Procedure as amended in the State of Kerala is in question in this appeal which arises out of a judgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2).  Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022) and order dated 11.7.2003 passed by the High court of Kerala at Ernakulam in CMP No. 1323 of 2003 in A.S. No. 156 of 1994. Appellant herein filed a suit for damages against the State of Kerala inter alia on the premise that he had lost an eye having been a victim of violence of political vendetta as he had suffered facial injury as a result of throwing of an acidAcid A chemical that gives off hydrogen ions in water and forms salts by combining with certain metals. Acids have a sour taste and turn certain dyes red. Some acids made by the body, such as gastric acid, can help organs work the way they should. An example of an acid is hydrochloric acid. Acidity is measured on a scale called the pH scale. On this scale, a value of 7 is neutral, and a pH value of less than 7 to 0 shows increasing acidity. bulb on his face. The said suit was filed in terms of Order XXXIII of the Code of Civil Procedure as he claimed himself to be an indigent person. The persons accused of throwing acid bulb on the face of the appellant, however, stood acquitted by a judgment dated 18.2.1981.

3. He filed a suit for damages in the year 1988. The State denied and disputed its vicarious liability for payment of any damages suffered by the appellant. The suit was dismissed by the learned Subordinate Judge, Cherthala by a judgment and decree dated 30.7.1991 inter alia holding:-

(i) The suit was barred by limitation.

(ii) Appellant had not established that the Police was duty-bound to give protection to him.

4. An appeal was preferred thereagainst in the year 1994. The said appeal was also allowed to be filed by him as an indigent person. The said appeal was dismissed by the High court by a judgment and decree dated 13.9.2002 inter alia holding that the suit was rightly held to be barred by limitation. It was furthermore directed:-

“16. Hence we find that the above appeal is devoid of any meritsMerits Strict legal rights of the parties; a decision “on the merits” is one that reaches the right(s) of a party as distinguished from a disposition of the case on a ground not reaching the rights raised in the action; for example, in a criminal case double jeopardy does not apply if charges are nolle prossed before trial commences, and in a civil action res judicata does not apply if a previous action was dismissed on a preliminary motion raising a technicality such as improper service of process.. Therefore the appeal is dismissed confirming the judgment and decree passed by the lower court.”

5. A miscellaneous application was filed by the appellant in the said suit purported to be for clarification of the said direction of the High court contained in its judgment dated 13.9.2002. The High court by reason of the impugned judgment refused to do so relying on some decisions relied on by the parties before it stating:-

“18. It is clear from the above rulings of the various High courts and this court that a person who is permitted to sue as indigent person is liable to pay the court-fee which would have been paid by him if he was not permitted to sue as indigent person, if he fails in the suit after trial or without trial since the ultimate decision or the result of the suit and not the manner or mode in which the decision is arrived is envisaged under Rule 11 of Order XXXIII of the Civil Procedure Code.

19. The counsel for the petitioner submitted that in view of the scheme of Order 33 of the C.P.C. failure in a suit cannot be equated with the dismissal of the suit since dismissal has been dealt with separately under clauses (a) and (b) of Rule 11. According to him, failure should be a total failure of the entire claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. 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 evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 and since the suit is dismissed for insufficiency of evidence, it cannot be treated as failure as contemplated in Rule 11 of Order 33 of the C.P.C. He further argued that in the judgment passed by this court in appeal this court merely dismissed the appeal and has not held that the plaintiff has failed in the suit. Therefore, according to him, Rule 11 of Order 33 is not attracted at all in this case.”

It was further held:-

“23. 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. In the decision reported in ILR (1891) 14 Madras 163 (Chandrareka v. Secretary of State for India) a Division Bench of the Madras High court held that the plaintiff in that partition suit who obtained a decree for ` 100/- being a moiety of the property claimed is liable to pay court-fee with regard to the sum of ` 100/- and the 1st defendant who contested the suit is liable to pay court-fee for the balance amount under Section 411 of the C.P.C. of 1882.”

It was opined:-

“31. Hence, the petitioner who is the plaintiff in the suit and appellant in the appeal cannot escape from his liability to pay the court-fee payable on the plaint and on the memorandum of appeal in this case as he failed in the suit and appeal by merely contending that he still continues to be an indigent person and a man of no means.

32. The questions whether the indigent plaintiff is liable to pay the court-fee on his failure in the suit and whether the State could recover or realize the court-fee payable by him under due process of law are separate and distinct matters to be considered independently. We are not called upon to pronounce on the issue as to whether the State will be able to realize the court-fee payable on the plaint and memorandum of appeal by the petitioner in this case under due process of law.

33. It is also pertinent to note that the petitioner herein by filing the above petition purporting to be for correction of the judgment and decree under Sections 151 and 152 of the C.P.C. in fact seeks review of the judgment and decree passed by this court in the above appeal which is not permissible under law.”

6. Appellant is, thus, before us.

7. Mr. A. Raghunath, learned counsel appearing on behalf of the appellant in support of this appeal submitted that Order XXXIII, Rule 11 of the Code of Civil Procedure will have no application unless the conditions precedent laid down therefor are satisfied. It was urged that a person despite dismissal of a suit and an appeal filed by him in forma pauperis may continue to be an indigent person and the Scheme of the Act will be defeated if a direction is issued to recover the amount of court-fee from him.

8. Order XXXIII of the Code of Civil Procedure deals with suits by indigent persons whereas Order XLVI thereof deals with appeals by indigent persons. When an application is filed by a person said to be indigent, certain factors for considering as to whether he is so within the meaning of the said provision is required to be taken into consideration therefor. A person who is permitted to sue as an indigent person is liable to pay the court-fee which would have been paid by him if he was not permitted to sue in that capacity, if he fails in the suit of the trial or even without trial. Payment of court-fee as the Scheme suggests is merely deferred. It is not altogether wiped off. Order XXXIII, Rule 10 of the Code of Civil Procedure provides for the consequences in regard to the calculation of the amount of court-fees as a first charge on the subject-matter of the suit.

9. For calculation of court-fee, there does not exist any distinction between a situation attracting Rule 10 on the one hand and Rule 11 on the other. The court-fee is to be calculated on the amount claimed and not on the amount decreed. For the said purpose, what is relevant is the final decision taken by the court in this behalf. Rule 11 directing the pauper plaintiff to pay the court-fee can be made in the four different situations:

(i) When the plaintiff failed in the suit.

(ii) Where the plaintiff is dispaupered.

(iii) Where the suit is withdrawn.

(iv) Where the suit is dismissed under the circumstances specified in clause (a) or clause (b).

10. When, therefor, the plaintiff fails in the suit or plaintiff is dispaupered, the same has nothing to do with dismissal of the suit under the circumstances specified in clauses (a) and (b).

11. Submission of Mr. A. Raghunath, learned counsel for the appellant that clauses (a) and (b) would attract all the four situations contemplated by Order XXXIII, Rule 11 in our opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. is misconceived. Clauses (a) and (b) would be attracted only when the suit is inter alia dismissed by reason of the contingencies contained in clauses (a) and (b). Clauses (a) and (b) will have no bearing and/or relevance, when a suit is dismissed on merit or when the plaintiff is dispaupered.

12. For the purpose of construction of the aforementioned provisions, it is necessary to give effect to all the conditions mentioned therein. As in three out of the four contingencies in the Rule, the order has to be passed when the suit comes to an end, it will be a fair construction to hold that clauses (a) and (b) refer to the fourth condition. We fail to see as to how the same can be held to be attracted even in the former case. Each situation as referred to hereinbefore is distinct and different. The word “or” is disjunctive and thus must be given effect to independent of the other cases.

13. Reliance placed on a decision of the learned Single Judge of the Patna High court in Ram Saran and Others v State of Bihar and Others [AIR 1959 Patna 384], in our opinion does not advance the case of the appellant inasmuch as therein the court was concerned with a situation where a question arose as to what would happen if the suit is decreed in part. It was held:-

“8. From Rules 10 and 11 of Order 33, it follows, therefore that if the plaintiff’s suit is dismissed, the court has no discretion or option in the matter, but to order the plaintiff or any added co-plaintiff to pay the court-fee. In such a case, the court cannot direct the court-fee to be paid by the defendants. It must be paid only by the plaintiff, or the co-plaintiff as the case may be, and by none else. If, however, the plaintiff succeeds in the suit, the court has been given a discretion to direct from which party the court-fee shall be payable. In such a case, the court has been given a wide discretion.

It can direct the entire court-fee to be paid either by the plaintiff, or the defendant, or both. On the facts and circumstances of each particular case, the court can exercise its discretion, and direct the court-fee to be payable accordingly. But to a case like the present, where the suit has been decreed in part, that is, the plaintiff’s claim has been partly allowed and partly disallowed, there is no provision in the Code which in terms applies. The Code has not laid down anywhere the procedure which is to be followed by the court in such a case. Obviously, therefore, to such a case neither rule 10, nor rule11, in terms, would apply.”

14. The decision relied on by the learned counsel therefore is itself an authority for the proposition that in a case where Rule 11 of Order XXXIII is attracted, the court cannot direct the defendant to pay the court-fee and it must be paid by the plaintiff or the co-plaintiff.

15. We, therefore, are of the opinion that there is no infirmity in the impugned judgment. The appeal is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs..