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Murukesan Vs. District Collector, Ernakulam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberO.P. No. 4319 of 1979-L
Judge
Reported inAIR1981Ker47
ActsCode of Civil Procedure (CPC) , 1908 - Sections 35 - Order 33, Rules 10, 12 and 14
AppellantMurukesan
RespondentDistrict Collector, Ernakulam
Appellant Advocate M.M. Abdul Aziz, Adv.
Respondent AdvocateGovt. Pleader
DispositionPetition allowed
Excerpt:
- - abdul aziz the counsel for the petitioner, submitted that the revenue recovery proceedings initiated by the respondent are clearly illegal and are liable to be quashed. this not being a case where the plaintiff failed in the suit or was dispaupered or where the suit was withdrawn or dismissed, the provisions of order 33, rule 11 c. in a case like this where the plaintiff instituted a suit for recovery of compensation for injuries sustained by him as a result of the accident in which the scooter driven by the contesting defendant was involved, the liability of the payment of court-fees probably has to be determined by considering the whole matter in accordance with the provisions contained in section 35 of the c......of the circumstances relevant to the issue. in a case like this where the plaintiff instituted a suit for recovery of compensation for injuries sustained by him as a result of the accident in which the scooter driven by the contesting defendant was involved, the liability of the payment of court-fees probably has to be determined by considering the whole matter in accordance with the provisions contained in section 35 of the c. p. c. also, besides the relevant provisions contained in order 33 c. p. c. section 35 of the c. p. c. provides as follows :--'35. costs.(1) subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the court, and the court.....
Judgment:
ORDER

K. Bhaskaran, J.

1. In this writ petition the challenge is directed against Ext. P-3 demand prior to attachment of land dated 30-4-1979 under Section 34 of the Kerala Revenue Recovery Act issued by the authorised officer (Deputy Tahsildar, Revenue Recovery, Alwaye) for recovery of Rs. 1145 being the arrears of court-fees alleged to be due from the petitioner, and Ext. P-5 order dated 29-10-1979 passed by the respondent, the District Collector, Ernakulam, whereby he disposed of Ext. P-4 objection submitted by the petitioner to Ext. P-3 demand notice, permitting the petitioner to remit the arrears at the rate of Rs. 50 per month.

2. The petitioner had instituted O. S. No. 282 of 1976 on the file of the Subordinate Judge, Ernakulam, against the driver of the scooter K. L. D. 7644 in forma pauperis for recovery of compensation in the sum of Rs. 11,650 for the injuries sustained and the medical expenses incurred by him as a result of the accident involving the said scooter on 4-1-1973. Ultimately the 3rd Additional Subordinate Judge, Ernakulam, in terms of the finding under issue No. 6 granted a decree for Rs. 768.88 P. as per the judgment dated 30-1-1979, a true copy of which is Ext. P-1. The operative portion of the decree, a true copy of which is Ext. P-2, reads as follows:--

'(I) that the plaintiff is entitled to a decree for Rs. 768.88 P. with 6% interest from 27-11-1979 onwards against the 2nd defendant. A copy of the decree shall be forwarded to the District Collector under Order XXXIII Rule 14 C. P. C.

(II) and it is hereby ordered and decreed that the parties do bear their respective costs.'

It was thereafter that the petitioner received Ext. 1 demand notice for the recovery of the sum of Rs. 1145 towards the arrears of court-fees, with respect to which he submitted his objections to the respondent, the District Collector, Ernakulam, a true copy of which is Ext. P-4. Though the petitioner had in Ext. P-4 objections pointed out that the suit was not dismissed on any of the grounds mentioned in Order 33, Rule 11 C. P. C.; that under Order 33, Rule 10 C. P. C. the amount of court-fees was made recoverable by the State Government, only from the party ordered by the decree to pay the same; and that inasmuch as the petitioner was not a party ordered by the decree to pay the court-fees, he was not under any legal obligation to pay any amount to the State Government, the respondent Collector did not go into the merits of these contentions, but passed an order confining the relief granted to one of permission to pay the arrears in instalments of Rs. 50 per month.

3. Sri M. M. Abdul Aziz the counsel for the petitioner, submitted that the Revenue Recovery proceedings initiated by the respondent are clearly illegal and are liable to be quashed. His submission is that Order 33, Rule 10 C. P. C., in terms would apply only to a case where the plaintiff succeeds. In the present case it cannot be said that the indigent person succeeded in the suit inasmuch as he succeeded only partly and lost substantially, because as against a claim for Rs. 11,650 what was decreed was only a paltry sum of Rs. 768.88; and if he were to pay a sum of Rs. 1145 by way of court-fees, he would be a loser in the bargain. It is also his submission that in Exts. P-1 and P-2, judgment and decree, there was no order directing the petitioner (plaintiff) to pay court-fees. This not being a case where the plaintiff failed in the suit or was dispaupered or where the suit was withdrawn or dismissed, the provisions of Order 33, Rule 11 C. P. C. are not attracted. Evidently Rule 11-A has no application to the facts of the case inasmuch as the suit did not abate.

4. The provisions are clear enough in regard to payment of court-fees in a case where the plaintiff succeeds as provided in Rule 10, where the plaintiff fails or is dispaupered or where the suit is withdrawn or dismissed as provided in Rule 11; and where the suit abates as provided in Rule 11A. There is however, no clear mandate in Order 33 as to how the liability in regard to payment of court-fees is to be determined or fixed where the plaintiff partly succeeds and partly loses as in the present case. Moreover, it has to be noticed that even under Rule 10 the plaintiff who succeeds in the suit is not automatically under a liability to pay the amount of court-fees inasmuch as what that Rule requires is that 'such amount is to be recovered by the State Government from any party ordered by the decree to pay the same', thereby indicating that it need not be from the plaintiff as an invariable rule. The court seems to have a discretion in the matter. It might depend upon the nature of the reliefs sought, the defence put forward, the evidence adduced, the extent to which the plaintiff succeeded, and all other factors which might have a bearing on the totality of the circumstances relevant to the issue. In a case like this where the plaintiff instituted a suit for recovery of compensation for injuries sustained by him as a result of the accident in which the scooter driven by the contesting defendant was involved, the liability of the payment of court-fees probably has to be determined by considering the whole matter in accordance with the provisions contained in Section 35 of the C. P. C. also, besides the relevant provisions contained in Order 33 C. P. C. Section 35 of the C. P. C. provides as follows :--

'35. Costs.

(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

(2) Where the Court directs that any costs shall not follow the event, the Court shall State its reasons in writing'.

5. It has already been noticed that in Exts. P1 and P2 judgment and decree the court has not entered a specific finding or given a direction that the plaintiff-decree-holder was to pay the amount of court-fees. That being the position, even apart from other reasons stated and contentions raised by the petitioner, there is enough ground to prohibit the respondent from proceeding with the steps under the Revenue Recovery Act against the petitioner. Rule 12 of Order 33 C. P. C. provides as follows :--

'The State Government shall have the right at anv time to apply to the Court to make an order for the payment of court-fees under Rule 10, Rule 11 or Rule 11A.'

The State Government is deemed to be a party to the suit by virtue of the provisions contained in Rule 13 of Order 33 C. P. C., and Rule 14 empowers the Government to recover the amount of court-fees specified in the decree or order from the person or property liable for the payment. Even now it is not too late for the respondent to take such action as he may be advised in that behalf to recover the amount of court-fees due from such person or persons from whom the court may direct such amount to be recovered. There appears to be no period of limitation for moving the court under Rule 12.

For the foregoing reasons the writ petition is allowed. Ext. P3 demand notice issued by the Deputy Tahsildar and Ext. P5 order passed by the respondent Collector are quashed without prejudice to the right of the Collector to invoke the provisions of Rule 12 of Order 33 C. P. C. There will be no order as to costs.


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