1. The appellant, a minor, with his mother as next friend, brought a suit in forma pauperis against his father for a partition. The suit ended in a compromise whereby the suit was withdrawn. The compromise, however, provided that the next friend should pay the court-fee. The compromise was approved by the Court, but beyond that no order was made by the Court touching the payment of the court-fee. The next friend apparently has no means to pay the court-fee, and there seems some force in the suggestion that the compromise arrangement on this matter was a device to save the plaintiff from the liability.
2. Order 33, Rule 11 provides that where the plaintiff fails in the suit-as he did in the present instance-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. The Court which sanctioned the compromise having made no order under Rule 11 the Government applied under Rule 12 for an order. This rule says that the 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 11. The Government did so apply, and the Sub-Judge purporting to act upon the analogy of Order 32, Rule 14 ordered that the court-fee should be paid by the next friend. On appeal this order was reversed by the District Judge who held that Order 33, Rule 11 was mandatory.
3. The learned Advocate for the appellant has relied upon Elumalai Naicker v. Kuppammal (1929) 58 M.L.J. 623 : I.L.R. 53 Mad. 716. In this case it was held that Section 35 and Order 33, Rule 11 are to be read together and that the Court under the general power conferred upon it by the section over costs can order a next friend to bear the costs of a pauper suit including the court-fee. It was not decided in that case, and indeed the question did not arise for decision, that the Court in its discretion could make such an order when Government made an application to the Court under Rule 12 to make an order under Rule 11. It must be borne in mind that the discretion given to the Court over costs is made by Section 35 'subject to such conditions and limitations as may be prescribed', which clearly includes any limitation prescribed in other parts of the Code. I think it would not be competent to Government if it thought there was a better prospect of recovering the court-fee from the next friend, who might be a person of property, than from the pauper plaintiff, to apply under Rule 12 for an order making the next friend pay the court-fee. The obvious answer to the application would be that it was not an order which the Court could make under the terms of Rule 11. It seems to me that upon such an application the power of the Court to make an order that some person other than the plaintiff or a co-plaintiff shall pay the court-fee is equally negatived by the language of Rule 11. It has been argued that this restriction of the Court's power is contrary to the decision in Elumalai Naicker v. Kuppammal (1929) 58 M.L.J. 623 : I.L.R. 53 Mad. 716, which of course is binding upon me and to which I happened to be a party. I do not think so. The decision did not profess to dispose of the question which is now before me. The Court may direct the next friend to pay costs in a pauper suit, as in an ordinary suit, and if the Government is content with such an order as regards its right to recover the court-fee no question can arise. But I am of opinion that the Court cannot by such on order deprive the Government of the right which is expressly given by Rules 11 and 12 of Order 33 to have an order that plaintiff shall pay the court-fee when a pauper suit fails. For these reasons I think that the appeal fails. It is dismissed with costs.
4. Leave refused.