1. A 'Division Bench of this Court consisting of Raghavan, C. J. and One of us disposed of by a common Judgment four appeals, A. S. Nos. 52 and 464 of 1969 and. 361 and 363 of 1970. These appeals arose out of three proceedings before the Subordinate Judge of Cochin, two Original Petitions under the Hindu Marriage Act and a suit for maintainance. One Original Petition was to declare the marriage be-tween the parties a nullity or in the alternative, if the marriage is found valid, for grafting a decree for judicial separation. The other Original Petition was for a decree for Judicial separation on the ground of desertion. The suit was for past and future maintenance, for return of streedhanam, ornaments and movables. The Original Petitions were dismissed by the trial Court, In the suit for maintenance, a decree was granted for past and future maintenance at the rate of Rupees 125 per mensem. The Other prayers in. the suit Were not granted. Aggrieved parties filed the above-mentioned appeals and cross-appeal against the judgment and decrees of the Subordinate Judge. This Court dismissed all the appeals but allowed the cross-appeal in part. In A. S. No. 52 of 1969 this Court directed the appellant to pay the costs of the respondents, one set. In A. S. No. 464 of 1969 the 1st respondent-wife succeeded and therefore she was awarded costs but since she succeeded only in part in the cross-appeal, there was no direction regarding costs in the cross-appeal. The present application, at the instance of the State, is for an amendment of the judgment, to include a direction, for realisation by the State, of the Court-fee of Rs. 365 payable in the memorandum of cross-appeal. This petition is a consequence of the fact that the cross-objection vas filed in forma pau-peris by the wife.
2. The question is whether such a direction can be made by this Court now.
3. The relevant provision of law regarding direction for Court-fee in matters arising from pauper proceedings is contained in Order XXXIII, Rules 10 and 12 C. P. C. We shall read the two rules for a proper appreciation of the question at issue:
'10. Costs where pauper 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 sye as a pauper; such amount shall be re-coverable 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.
x x x x12. State Government may apply for payment of. Court-fees.-- (1) The State 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, Rule. 11 or Rule 11-A.
(2) No order for payment out of moneystanding to the credit of any suit institutedin forma pauperis shall be made on the application of any party except after noticeduly to the Government Pleader on behalfof the Government.'
It is clear from Rule 12 that the State Government can at any time apply to the Courtto make an order for payment of Court-feesunder Rule 10. The provisions of Rules 10and 12 in Order XXXIII will apply mutatismutandis to appeals, as provided for inOrder 44, C. P. C. That this Court has jurisdiction to direct payment of Court-fee is beyond dispute. The only question that needsconsideration is as to who should be madeliable to pay the Court-fees,
4. Since the wife succeeded in the cross-appeal only partly, it was contended that the respondent in the cross-appeal should not be mulcted with the liability to pay Court-fee. But in passing an order, the discretion of this Court has to be exercised having due regard to the peculiar facts and circumstances of each case. Proceedings in this case arose on account of the desertion of the wife by the husband and the cruelty meted out to her by him. The facts of the case disclosed from the records make painful reading. Such matters can be taken into consideration in directing as to who should be made liable for payment of the Court-fee.
5. The decisions reported in Jamini Kanta v. Union of India, AIR 1955 Cal 45 and Ram Saran v. State of Bihar, AIR 1959 Pat 384 are useful on this aspect. In AIR 1955 Cal 45, a suit for recovery of arrears of pay by a civil servant and also for damages for illegally withholding payment and for illegal discharge from military service, was brought. The Union of India, which was the defendant, denied in part the relief claimed by the plaintiff. The suit was not decreed in full, since the damages claimed were held to be too high; while the claim for arrears of pay with interest was decreed. In paragraph 43 of the judgment it is said, and with respect correctly, that when a party succeeds only in part, it is not incumbent on the Court to allocate in every case the costs as amongst the parties proportionate to the success. Although the amount claimed as damages and compensation was found to be high by the trial Court, the High Court felt that it was proper to direct the Union of India to pay Court-fee since every part of the relief the plaintiff claimed was denied by the Union of India.
6. In AIR 1959 Pat 384, a learned Single Judge of the Patua High Court, had to consider a more or less similar case as the one on hand. There also the suit was for recovery of arrears of maintenance. The arrears of maintenance was claimed partly at the agreed rate, partly at the enhanced rate and also for future maintenance. The suit was decreed by the Subordinate Judge. The suit was filed in forma pauperis. Regarding Court-fee payable the direction was that it shall be realised by the Government from the defendants. The learned Judge referred to Rules 10 and 11 of Order XXXIII, C. P. C. and held that these two rules did not specifically provide as to who should be made liable to pay Court-fee where the plaintiff partly. succeeded in the suit. Ultimately, relying upon Section '35, C. P. C. the learned Judge held that the Court had wide discretion to direct which of the parties should be made liable to pay the Court-fee due to the Government. In that case, the plaintiff was a widow. She claimed maintenance on account of her very strained circumstances. The claim was held to be neither mala fide nor exaggerated, but was held to be just and proper and the attitude of the defendants in not giving maintenance voluntarily was held to be mala fide. Therefore the Court exercised discretion in her favour and directed Court-fee payable by the plaintiff, to be paid by the defendants, with other reliefs.
7. Similar is the case before us. On a reading of Rule 10 of Order 33 it will be seen that the said rule deals with cases of a pauper plaintiff who succeeds in the suit and Rule 11 of Order 33 deals with the pauper plaintiff who fails in the suit. Neither Rule 10 nor Rule 11 deals with cases when the pauper plaintiff partly succeeds and partly fails. No provision, separate or specific, is seen in Order 33 itself or elsewhere in the Code, where provision is made for Court-fee being directed to be paid in cases where plaintiff succeeds in part and fails in part. In the absence of any such provision, the discretion should entirely rest with the Court. Inherent powers under Section 151 of the Code, we are afraid, cannot be invoked, since Section 35 of the Code confers jurisdiction to award costs. Section 35 gives very wide and unfettered jurisdiction to the Court in the matter of award of costs. Therefore, in cases where Rules 10 and 11 of Order 33 cannot be applied, the Court has necessarily resort to Section 35 for the award of costs in the interests of justice or for other equitable circumstances. We hold that the discretion exercisable by this Court is wide.
8. The question that has to be considered here is as to how the discretion should be exercised in this case. True, the cross-appellant, wife here, has succeeded only in part. But as already indicated earlier, she had to go to Court with her claim under exceptional and painful circumstances and this Court will be wholly justified in directing the respondent in cross-appeal to pay Court-fee payable on the cross-objection.
9. In the result, the application is allowed by directing the respondent in the cross-appeal to pay Court-fee of Rs. 365 payable in the cross-objection.