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The Government of the Province of Bombay Vs. Bai Baiba Kandhabhai Haribhai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 475 of 1940
Judge
Reported in(1942)44BOMLR518
AppellantThe Government of the Province of Bombay
RespondentBai Baiba Kandhabhai Haribhai
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), order xxxiii, rule 12, 10, 11-suit in forma pauperis-suit decreed partly in plaintiff's favour-costs inclusive of court-fees payable by plaintiff-application by government for order that defendants should pay proportionate court-fees.;order xxxiii, rule 12, of the civil procedure code, 1908, is intended to enable the government to ask the court to make an order for payment of court-fees where no such order has been made by the court under rule 10 and 11 of the order. it, does not enable government to ask the court to make an order afresh, where such court has already passed an order for payment of court-fees.;collector of gorakhpur v. budhu [1939] a.i.r. all. 327, followed. ;rule 10 of o. xxxiii recognizes that the court has a discretion to make an..........assistant judge of ahmedabad, made upon an application by government, under the provisions of o. xxxiii, rule 12, of the civil procedure code, 1908. the government prayed for the revision of the directions in regard to the payment of court-fees contained in a decree passed on august 23, 1987, in an action by a hindu widow filed in forma pauperis for maintenance against the coparceners of her deceased husband. the claim by the widow was for arrears of maintenance in the amount of rs.1,000, for future maintenance at the rate of rs. 200 a year and for a certain share in the field produce and for charges of repairs of a family house in which she resided. the claim in regard to the last two items was valued at rs. 270. it may be noted that, for the calculation of court-fees, the capitalized.....
Judgment:

Wassoodew, J.

1. This is a second appeal from an order of the learned Extra Assistant Judge of Ahmedabad, made upon an application by Government, under the provisions of O. XXXIII, Rule 12, of the Civil Procedure Code, 1908. The Government prayed for the revision of the directions in regard to the payment of court-fees contained in a decree passed on August 23, 1987, in an action by a Hindu widow filed in forma pauperis for maintenance against the coparceners of her deceased husband. The claim by the widow was for arrears of maintenance in the amount of Rs.1,000, for future maintenance at the rate of Rs. 200 a year and for a certain share in the field produce and for charges of repairs of a family house in which she resided. The claim in regard to the last two items was valued at Rs. 270. It may be noted that, for the calculation of court-fees, the capitalized value of the claim to future maintenance at the rate of Rs. 200 per year was about Rs. 2,240. The total claim computed in money for the purpose of court-fees was thus nearly Rs. 3,500. The decree rejected all but one claim in respect to arrears of maintenance and awarded Rs. 600 in lieu of the sum of Rs. 1,000 claimed in that respect. The decree then directed that the costs particularly in regard to the payment of court-fees should be borne by the pauper-plaintiff, who had partly succeeded and partly failed. That order was in these terms :-

Ordered to forward a copy of the aforesaid decree to the Collector of Ahmedabad for recovery of Rs. 205 from the plaintiff in respect of Court fee stamps.

2. On or about January 29, 1938, that is, nearly five months after the decree, Government made the application referred to for 'making a proper order' as to the payment of court-fees under the provisions of Rule 10 and 11 of O. XXXIII of the Code pointing out that inasmuch as the plaintiff had partly succeeded and partly failed the defendants should have properly been ordered to pay the whole amount of the court-fees or, at least, a portion of the court-fees in proportion to the plaintiff's success. The reason for that application apparently was that the plaintiff was a pauper and had no means of paying the amount of the court-fees, while the defendants had, they being in possession of the family estate. The Courts below have held that the application by Government, which was treated as one under Rule 12 of O. XXXIII of the Civil Procedure Code, was not competent and that there was no reason 'for interfering with the order of costs already passed on the merits of the case, inasmuch as the Court by that order very likely intended to penalize the plaintiff for exaggerating her claim. Accordingly the application was dismissed in the Courts below. The order upon the application purporting to be one under O. XXXIII, Rule 12, being a decree under O. XXXIII, Rule 14, of the Civil Procedure Code, this second appeal has been filed against it by the Provincial Government.

3. The learned Assistant Government Pleader appearing for Government has not disputed the Court's discretion to pass an order as to costs relating to the payment of court-fees even where the plaintiff has succeeded in part. But he says that if the order in so far as it relates to the payment of court-fees fails to apportion sensibly the court-fees between the contending parties, Government have a right to intervene; and he relies for that purpose on the provisions of O. XXXIII, Rule 12, of the Civil Procedure Code. That rule says :--

The Provincial Government shall have the right at any time to apply to the Court to make an order for the payment of Court-fees under Rule 10 or Rule 11.

4. Apart from authority, that rule, as I read it, is intended to enable the Government to ask the Court 'to make an order for the payment of court-fees' where no such order has been made. It does not enable Government to dictate to the Court in what terms the order should be passed. Rules 10 and 11 of O. XXXIII of the Civil Procedure Code are mandatory. Rule 10 says :-

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 a pauper such amount shall be recoverable by the Provincial 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.

5. Rule 11 is as follows :-

Where the plaintiff fails in the suit or is dispaupered, 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

(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 a pauper.

6. According to those rules the Court has to pass an order for the payment of court-fees in a pauper's suit suo motu. If it does not do so, Rule 12 gives the right to the Provincial Government to apply to the Court to make an order which it has omitted to make. In this case the order has been made. Consequently Rule 12 does not prima facie come into operation. In a recent case a bench of the Allahabad High Court considered the effect of Rule 12 of O. XXXIII and it held that the rule is confined to cases in which the Court has not already passed an order under Rule 10 and Rule 11 [see Collector of Gorakhpur v. Budhu [1939] A.I.R. All. 327. If I may say so with respect that view is correct. Rule 10 recognizes that the Court has a discretion to make an order for payment of court-fees even against a successful party. Rule 11 is somewhat imperative in its terms. It says if the plaintiff is unsuccessful, he is obliged to pay the court-fees. The order passed by the trial Court does not therefore offend against the provisions of those rules inasmuch as the plaintiff, who has failed in some and succeeded in other respects, has been made to pay the court-fees.

7. It has been urged on behalf of Government that inasmuch as there is no express provision for payment of court-fees in the case of partial failure and partial success of the plaintiff-pauper in the rules under O. XXXIII, it is the duty of the Court to apportion the court-fees between the contending parties. The learned Assistant Government Pleader has relied upon Ganga Dahal Rai v. Musammat Gaura (1916) I.L.R. 38 All. 469 for the proposition that Government can ask the Court to revise a decree which contains no direction as to apportionment of court-fees. That case is no authority in support of the Government's view. That was a suit brought in forma pauperis by a Hindu widow for enforcement of her right, of maintenance. She succeeded only in part and failed as to the rest of the claim. The trial Court ordered the defendant to pay the entire costs incurred by the plaintiff including the amount of court-fees which would have been payable on the claim. The defendant appealed against that decree and his appeal succeeded so far as the order for payment of court-fees was concerned. The Court held that the Court fees payable on the plaint should be apportioned under the provisions of Rule 10 and 11 of O. XXXIII of the Code of Civil Procedure. It will be seen that the decree was the subject-matter of an appeal, and the Court could therefore in the exercise of its appellate jurisdiction substitute its own view for that of the lower Court in regard to the payment of court-fees. Here no appeal was preferred from the decree within the time allowed by law. The decree has become final so far as the actual parties to it are concerned. If Government were dissatisfied with that decree, Rule 13 of O. XXXIII gave them the right to appeal from it. That rule says:-

All matters arising between the Provincial Government and any party to the suit under Rule 10, Rule 11 or Rule 12 shall be deemed to be questions arising between the parties to the suit within the meaning of Section 47.

8. It is not disputed that the order made under Rule 10 and Rule 11 of O. XXXIII and incorporated in the decree was served on the Collector forthwith as required by Rule 14. The Provincial Government having not appealed within the time allowed by law, that decree cannot now be assailed in this circuitous manner by resorting to the provisions of Rule 12. The application therefore under Rule 12 of O. XXXIII was, in my opinion, misconceived. Rule 12, as I have pointed out, is confined in its application to cases in which there is a distinct omission to pass orders under Rule 10 and 11 suo motu by the Court which passed the decree. It is doubtful therefore that an order passed upon an application such as this for amendment of the decree could be regarded as an appealable order. Consequently this appeal must be dismissed. There shall be no order as to costs as there is no appearance for the respondents.


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