Iqbal Ahmad, J.
1. This appeal arises out of a suit that was the outcome of a tragic event that took place in the railway station yard of Aligarh on April 6, 1932, because of the gross negligence of the servants of the defendant-appellant. There was a wooden foot bridge across the railway line close to the railway station. One Nasar Ullah who was the only son of Musammat, Basti Begam plaintiff-respondent, was passing over the bridge when the his of a crane crashed against the bridge with the result that the bridge fell down. Nasar Ullah received serious injuries as a result of which he died the same day, viz., on April 6. The plaintiff-respondent is a pardanashin lady of about 60 years of age and was dependent for her maintenance on Nasar Ullah who, according to the findings of the Courts below, was employed in some office on a monthly salary of Rs. 10-8.
2. The plaintiff-respondent brought a suit in forma pauperis against the appellant for recovery of Rs. 5,000 as damages. The appellant did not challenge the right of the plaintiff to damages but maintained that the damages claimed were excessive and that a sum of Rs. 500 was the appropriate amount to be awarded to the plaintiff on account of damages.
3. The trial Court decreed the plaintiff's claim for a sum of Rs. 2,000 but directed that the court-fee payable on the plaint should be deducted out of the amount decreed. That Court ordered the parties to receive and pay costs in proportion of their success and failure.
4. The plaintiff was satisfied with the decree of the trial Court but the defendant took the matter in appeal to the lower Appellate Court. The appeal in that Court was valued at a sum of Rs. 1,500. In other words, the defendant admitted his liability to pay damages to the extent of Rs. 500 and assailed the rest of the decree of the trial Court, The learned Judge of the lower Appellate Court allowed the appeal in part and reduced the amount decreed to the plaintiff from Rs. 2,000 to Rs. 1,020. That Court further allowed the plaintiff proportionate costs of the trial Court, but directed the parties to bear their own costs of the appeal. As regards the court-fee payable on the plaint the lower Appellate Court modified the order of the trial Court by directing -that 'plaintiff will be liable to pay court-fee on Rs. 1,020 only. Defendant will pay the remaining court-fee.'
5. The defendant has come up in second appeal to this Court. By the memorandum of appeal the; entire decree passed by the lower Appellate Court is assailed, but the only point that has been argued before me relates to the direction given by the lower Appellate Court as regards the payment of court fee. It is argued that the order passed by the lower Appellate Court as regards the payment by the defendant of the court-fee on the amount of the claim dismissed was not in consonance with law, and that the plaintiff ought to have been ordered to pay the court-fee on the amount of the claim that was dismissed by the trial Court. This contention of the learned Counsel for the appellant is supported by a decision of this Court in Ganga Dahal Rai v. Gaura 38 A 469 : 35 Ind. Cas. 46 : 14 ALJ 657 : AIR 1916 All 327. It was held in that cane that if a plaintiff in a suit brought in forma pauperis succeeds only in part and the rest of the claim is dismissed the court-fee payable on the plaint should be apportioned between the parties under the provisions of Rules 10 and 11 of Order XXXIII, Civil Procedure Code. In other words, the defendant must be ordered to pay court-fee on the portion of the claim decreed and the plaintiff must be made liable to pay court-fee on the portion of the claim dismissed.
6. In view of the decision quoted above I must give effect to the contention of the learned Counsel for the appellant and accordingly I direct that the plaintiff do pay court-fee on the portion of the claim dismissed and the defendant do pay court fee on the portion of the claim decreed.
7. The suit was brought in December, 1932, when enhanced court-fee was payable and the court-fee payable on the entire amount of the claim was Rs. 357-8. The result of the order passed by me will be that oat of the sum of Rs. 357-8 the defendant will have to pay Rs. 113-12 and the plaintiff will have to pay Rs. 243-12 on account of court-fee payable on the plaint. But in accordance with the decree of the lower Appellate Court the plaintiff was liable to pay court-fee only to the extent of Rs. 113-12. Therefore as a result of the order passed by me the plaintiff will have to pay an additional sum of Rs. 130 on account of court-fee. The question then arises whether in the absence of an appeal or a cross-objection by the plaintiff I have jurisdiction to grant her relief with respect to this sum of Rs. 130 if I consider it just to do so. In my judgment I am vested by Order XLI, Rule 33 Civil Procedure Code, with such a jurisdiction. The relevant portion of Rule 33, is as follows:.Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court...in favour or all or any of the respondents or parties, although such respondent or parties may not have filed any appeal or objection...
8. This rule has been the subject of interpretation by their Lordships of the Judicial Committee as well as by this Court.
9. In B. Iswarayya v. Swarnamiswarayya their Lordships of the Privy Council held that the amount of alimony fixed by the Court below for the wife could, on the appeal by the husband, be increased by the High Court even though the wife had not filed an appeal or a cross objection claiming an amount in excess of the amount decreed to her by the Court below. A Full Bench of this Court in Rangam Lal v. Jhandu 34 A 32 : 11 Ind. Cas. 640 : 8 ALJ 1111 while pointing out that the words of the rule are very wide and, that care and judicial discretion must Be used by Appellate Courts in the exercise of the power conferred by the rule, held that the object of Rule 33 is manifestly to enable the Court to do complete justice between the parties to the appeal. It was further observed in that case that where it is essential in order to grant relief to an appellant that some relief should at the same time be granted to the respondent also, the Court may grant relief to the respondent although he has not assailed the decree appealed against either by means of an appeal or by a cross-objection. In the case before me I am satisfied that it would be unjust to further reduce the decree passed in the plaintiff's favour by the lower Appellate Court. The plaintiff has suffered the double misfortune of losing her only son who was the source of her livelihood and of being dragged into three Courts by means of successive appeals in an action which appears to me to have been reasonable in the extreme. It was impossible for the plaintiff to measure the damages sustained by her with approximate precision. There is, therefore, no occasion for surprise if she Valued her claim at a sum of Rs. 5,000. The lower Appellate Court in assessing the damages has taken into consideration the monetary loss suffered by the plaintiff. But I cannot overlook the fact that the plaintiff must have suffered considerable mental distress because of the death of her only son. This may not be taken into account in assessing the damages, but I cannot lose sight of this fact in the decision of this appeal. The present case was one in which I should have expected the defendant to err on the side of generosity and to let. the decree of the trial Court become final. The defendant, however, did not choose to do so.
10. I, therefore, while allowing the appeal filed by the defendant and directing the plaintiff to pay court-fee on the portion of the claim dismissed and the defendant to pay court fee only on the portion of the claim decreed, increase the amount of damages allowed to the plaintiff by the lower Appellate Court by a sum of Rs. 130. In other words, the decree for damages in the plaintiffs favour will be for a sum of Rs. 1,150. The result of my decision is that the decree of the lower Appellate Court remains substantially unaltered. Accordingly the defendant must pay to the plaintiff-respondent the costs of this appeal. Costs of the Courts below as in the decree of the lower Appellate Court.