1. The sole question for determination, in the present appeal, is as to by which party the court fee payable by a pauper plaintiff, who is permitted to sue as a pauper under Order 33, rule 8 of the CPC, is to be paid when such a plaintiff partly succeeds and partly fails in such a suit. The plaintiff brought a suit for recovery of arrears of maintenance partly at the agreed rate and partly at an enhanced rate, and also for future maintenance at the enhanced rate of Rs. 80/- per month. For the three years immediately proceeding the suit, the arrears were claimed at this enhanced rate of Rs. 8O/- per month, but for the remaining years arrears were claimed at the agreed rate of Rs. 202 per year, as fixed between the parties by their deed of agreement between them.

2. The learned Subordinate Judge, who decided the suit, decreed the plaintiffs suit in part. He fixed the future maintenance at the rate of Rs. 45/- per month, as against Rs. 80/- claimed by the plaintiff, and directed that this increased rate would take effect from the date of the suit. For the years prior to the institution of the suit, however, maintenance was allowed at the agreed rate of Rs. 202/- per year as fixed by the deed of agreement between the parties. As regards the court fee payable by the plaintiff, the learned Subordinate Judge directed drat “he court fee payable in the case shall be realised by the Government from the defendants.”

3. On behalf of the defendan's, who are appellants before this Court, it was contended by Mr. L.M Sharma that in a case like the present where the pauper plaintiff's suit has been partly decreed and partly dismissed, the court fee should be made payable by both in proportion to the success of the parties, and, therefore, the learned Subordinate Judge has exercised his discretion arbitrarily, without assigning any reason, as to why the entire court fees payable by the plaintiff should be realised by the Government from the defendants alone.

4. Mr. Sharma submitted that to such a case neither rule 10, nor rule 11 of Order 33 of the CPC in terms apply, and, therefore the principle, which should govern such a case, should be the principle which has been laid down in a number of decisions by the different High Courts, which is to the effect that the court fee in such a case, where the pauper plaintiff's claim is partly decreed and partly dismissed, should be made payable proportionately by both the parties in proportion to their success. In support of his contention, he has relied on Ganga Dahal Rai v. Mt. Gaura, ILR 38 All 469 : AIR 1916 All 327, which was relied upon in Rami Reddi v. Chenchu Polamma, AIR 1930 Mad 1000, Srinivasa Ayyar v. Lakshmiammal, AIR 1928 Mid 216, Secretary of State v. Sundarammal, AIR 1926 Mad 474 and Badrinath v. Jagdip Sahay, AIR 1930 Pat 353 (2).

5. He, however, conceded that as he has confined his appeal only to Rs. 938/7/-, the appellants were prepared to admit their liability to pay the court fee to the remaining extent but they cannot be made liable for the entire amount of court fee payable to the Government by the pauper plaintiff.

6. Mr. R.S Sinha, who appeared for the plaintiff-respondent however, contested the contention of Mr. Sharma that the just mentioned principle should be considered as a cut and dry formula applicable to all such cases irrespective of the facts and circumstances of each particular case.

7. He therefore, contended that it is true that rule 10, or rule 11, of Order 33 of the Code, does not apply, in terms, to such a case, but, nevertheless the court has a discretion of is own in such a case, and when such discretion has been exercised properly, and not arbitrarily, by the court below, as in the present case, it should not be interfered with by this Court. In support of his contention, he relied upon Rohini Kumar Pal v. Kusum Kamini Pal, ILR 55 Cal. 488 : AIR 1928 Cal 196 which was followed in Mujawir Husain v. Mt. Kishwar Jehan Befam, AIR 1941 Oudh 66 and also on In the matter of Province of Bengal v. Noor Ahmade, AIR 1938 Cal 776.

8. For a proper determination of the question in controversy in the present appeal, it is desirable to read at this very stage rules 10 and 11 of Order 33 of the CPC. Rules 10 and 11 are in these terms

“(10) Where the plaintiff succeeds in the suit, the Court shall calculate the amount of court fee which would have been paid by the plaintiff if he had no; been permitted to sue as a pauper; such amount shall be recoverable 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.

(11) Where the plaintiff fails in the suit or is dispaupered, or where the suit is withdrawn or dismissed.

(a) ***

(b) ….….….

the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit to pay the court fee which would have been paid by the plaintiff if he had not been permit ed to sue as a pauper.”

9. On the plain language of above rule 10, it is clear enough that in a case where the plaintiff succeeds in the suit, the court fee has to be recovered by the State from any party ordered by the decree to pay the same. Rule 10, therefore, gives an unfettered discretion to the court to direct the amount of court fee calculated by it to be paid from any party it likes. If, however, the suit of the plaintiff is dismissed, then on the plain language of the above rule 11 the court shall order the plaintiff, or any person added as a co-plaintiff to the suit to pay tile court fee which would have been paid by the plaintiff if he had not been permitted to sue as a pauper.

10. From Rules 10 and 11, of Order 33, it follows, therefore that if the plaintiffs suit is dismissed, the court has no discretion or option in the ma ter, but to order the plaintiff, or any added co-plaintiff, to pay the court fee. In such a case, the court cannot direct the court fee to be paid by the defendants. It must be paid only by the plaintiff, or the co-plaintiff, as the case may be, and by none else. If, however, the plaintiff succeeds in the suit, the court has been given a discretion to direct from which party the court fee shall be payable. In such a case, the court has been given a wide discretion.

11. It can direct the entire court fee to be paid either by the plaintiff, or the defendant, or both. On the facts and circumstances of each particular case, the court can exercise its discretion, and direct the court fee to be payable accordingly. But to a case like the present where the suit has been decreed in part, that is, the plaintiffs claim has been partly allowed and partly disallowed, there is no provision in the Code which in terms applies. The Code has not laid down anywhere the procedure which is to be followed by the court in such a case. Obviously, therefore, to such a case neither rule 10, nor rule 11, in terms, would apply.

12. The crucial question which therefore arises, is as to what the court is to do in such a case?

13. I will now proceed to consider the authorities relied upon at the Bar in order to extract the principle which should apply to the present case. It is not necessary, however, to deal with such case. It is enough if I deal with only those cases which are earliest and which have been followed or relied upon in subsequent cases.

14. The earliest case is, ILR 38 All 469 : (AIR 1916 All 327), in which a Division Bench of the Allahabad High Court laid down that in a case in which a pauper plaintiff partly succeeds and partly fails, the court is presumably intended to deal with such a case by combining the provisions of Rr. 10 and 11, of Order 33, and apportion the costs according to success and failure. Their Lordships, however, made an observation that the question of the discretion of a court in dealing with a case in which a pauper plaintiff has partially succeeded and partially failed is one which deserves to be dealt with by a special rule.

15. In that case, their Lordships were impressed by the fact that the equities of that case were in favour of the defendants, because, their Lordships observed, in a pauper suit it is not equitable to permit a plaintiff to penalise the defendant by exaggerating his claim. Their Lordships in the facts of that particular case, held that the plaintiff of that suit, which was under appeal before their Lordships, had made an exaggerated claim, and therefore, it was not equitable to permit such a plaintiff to penalise the defendant. Accordingly, their Lordships ordered the court fee to be payable to the Government by the plaintiff. Their Lordships followed the earlier case of Chandrareka v. Secretary of State for India, ILR 14 Mad 163, and, followed the principle laid down therein.

16. The above Allahabad case has been considered and followed in the subsequent cases relied upon by the appellants including the case of our own High Court.

17. As the case in AIR 1930 Pat 353 (2) is the only case of our High Court, which has been brought to my notice, and as it is a Division Bench decision, I propose to deal with it at once. This decision of our High Court, in my opinion, does not apply to the present case. In that case, there was a compromise in the High Court in a second appeal to this Court. There was, however, an omission as regards the order to pay court fee, and, for that reason, an application was made by the Crown, as then it was, under Order 33, rule 12, of the Code. In those circumstances, their Lordships exercised their own discretion, and, adopted the course which was adopted in the just mentioned Allahabad case in AIR 1916 All 327 (supra) and, therefore their Lordships directed that in their opinion the equities of the case before their Lordships demanded that the plaintiff should bear nine-eleventh of the court fee, and the defendants, two-eleventh and, accordingly, they were ordered to pay the court fee.

18. In the instant case, the court below has already, in view of the circumstances of the case, although not so expressly mentioned, exercised its discretion, and, directed the court fee to be paid by the defendants, who are the appellants, only. The Patna case, therefore, has no application here.

19. The Allahabad case of Ganga Dahal Rai, mentioned before was also considered by the Calcutta High Court in AIR 1928 Cal 196. Their Lordships of the Calcutta High Court dissented from the decision of the Allahabad High Court, just mentioned, and distinguished the decision of the Madras High Court in ILR 14 Mad 163 (supra), which was the basis of the decision of the Allahabad High Court. Ghose, J., who delivered the main judgment of the Court, and with whom Roy, J., entirely agreed, after considering the Allahabad and the Madras cases, mentioned above, observed:

“I must again observe with very great respect that the discretion given to the Court under R. 10, O. 33 of the CPC, is quite sufficient for the purpose, and the Court may, in the exercise of its discretion, having regard to the circumstances of the case, mould its decree according to what the justice of the case requires with reference to the court fees payable.

The words in the last portion of the rule run thus: ‘……..such amount shall be recoverable by the Government from any party ordered by the decree to pay the same.’

This, to my mind, leaves the discretion entirely with the court to direct which of the parties should pay the court fees due to the Government.”

20. In this view, their Lordships upheld the order of the court below directing defendant No. 1 of that suit, which was in appeal before their Lordships, to pay the court fee which would have been paid by the plaintiff. If I may say so with respect I am completely in respectful agreement with their Lordships that the discretion rests entirely with the court to direct which parties should pay the court fee due to the Government.

21. But the crucial question is: Under what provision of the Code, such discretion can be exercised? Can it be exercised under R. 10 of O. 33 or under its inherent power under S. 151 or under S. 35 of the Code, when the pauper plaintiff partly succeeds in his suit?

22. With due deference to their Lordships of the Calcutta High Court, I do not share their view that such a discretion can be exercised, even when the plaintiff partly succeeds and partly fails, under R. 10 of O. 33. When R. 10 does not, in terms, apply to such a case, how can the discretion, vested in the court under R. 10 for a case where the pauper plaintiff succeeds, be exercised by it in a case where the plaintiff partly succeeds. At one stage I entertained the view that the word “succeeds” occurring in R, 10 may mean partial success also, otherwise there is no reason why the Legisla' ore should have vested the court with such a wide discretion in directing which party is to pay the court fee payable to the plaintiff, in that, when the plaintiff succeeds completely, the court fee payable by the plaintiff must be paid by the defendant like rule 11 in which case the plaintiff has to pay the cour: fees payable by him when he fails in his suit.

23. But on a further consideration I have come to the conclusion that such a wide discretion in the court under rule 10, even when the plaintiff succeeds totally, was necessary. The reason is that, suppose, the plaintiff succeeds completely and his suit is decreed in toto and not in part, even then, on the circumstances of a particular case, the court may find either that the plaintiffs' conduct was so reprehensible that be should be penalised by directing the court fee to be payable by the plaintiff himself and not by the defendants as should be in the ordinary course, or, there may exist other circumstances due to which the court considers that although the plaintiff has succeeded in toto, he must pay the court fee payable by him himself, or, that the curt fee payable by the plaintiff should be paid partly by the plaintiff and partly by the defendants.

24. For these reasons, therefore such a wide discretion in the court was imperative and, for that reason, the legislature has in its wise discretion deliberately given unfettered discretion to a court under rule 10 Order 33, even where the plaintiff succeeds, by which term I mean “succeeds completely and not partly.” In my opinion, the court cannot where the plaintiff partly succeeds and partly tails, exercise its discretion to direct by which party the curt fee payable by the plaintiff should be paid under rule 10, order 33 of the Code.

25. I may also state with great respect, that do not also share the view taken by the Allahabad High Court which has found favour with the Madras High Court that rules 10 and 11 of Order 33 could be combined, and, the cost apportioned according to success or failure in a case where the plaintiff partly succeeds and partly fails. If once it is held that rules 10 and 11 do not, in terms, apply to case where the plaintiff partly succeeds and party fails, I do not understand how rules 10 and 11 can be combined, and, the combined effect of the wo can be to give power to the court to apportion he cost according to failure or success in a case where the plaintiff partly succeeds and partly fails. I am, therefore of the view, in the first place, that rules 10 and 11 of Order 33 cannot be combined, and, even if they are combined, the combined effect of he same cannot be to empower the court to apportion the cost according to failure or success in a case where the plaintiff partly succeeds and partly ails.

26. If, therefore as I have held, rules 10 and 11 of Order 33 do not apply to a case where the plaintiff partly fails and partly succeeds, and, these to rules cannot be combined to have the desired effect, the question then arises: Can the Court exercise such a discretion to direct by which party the ??? payable by the plaintiff should be paid in exercise of its inherent powers under S. 151 of the Code?

27. It is well settled, however, that inherent powers can be exercised by a court for the ends of justice, if there be, no specific provision in the Code to deal with such a case. To me, it appears that the court can exercise such a discretion under S. 35 of the Code, and, that S. 35 deals with such a case, and, therefore, the court cannot resort to its inherent powers vested in it under S. 151 of the Code. I, would, therefore now proceed to consider if a court can exercise such a discretion under S. 35 of the Code.

28. A consideration of S. 35 of the Code, therefore seems to me to be necessary at this stage. Section 35 is to the following effect:

“35. (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.”

29. Under S. 35(1), the costs of all suits shall be in the discretion of the Court. Section 35, however, is subject to such conditions and limitations as may be prescribed, and, to the provisions of any law for the time being in force. Rules 10 and 11, of Order 33, of the Code, are some of the Rules which limit the power of the Court to award costs under S. 35, and, which take away the unfettered discretion of the Court under S. 35. To a case; therefore, to which Rules 10 and 11, of Order 33, do not apply, I do not find any reason why S. 35 should not apply.

30. I do not find, however, any reference to S. 35, in any of the decisions cited at the Bar, probably because, in some of the cases, the view taken is that in the absence of any specific provisions dealing with a case where the pauper plaintiff partly succeeds and partly fails, presumably the Court is intended to deal with such a case by combining the provisions of the two rules 10 and 11, and, by apportioning the court-fees payable between the plaintiff and the defendant in proportion to the extent of success of each party. I respectfully differ from this view because Rule 11 gives no discretion to the court at all if the pauper plaintiff fails, in the suit in which case it is mandatory that the Court must direct only the plaintiff, or the added coplaintiff, as the case may be and none else to pay the court-fee.

31. It is only Rule 10 which gives a wide discretion to the Court when the pauper plaintiff succeeds to direct tile court-fee to be recoverable from any party ordered by the decree to pay the same. But Rule 10, as I have just held, applies to a case when the plaintiff succeeds, that is, he succeeds in toto.

32. In such circumstances, when Rule 10 deals with the case of a pauper plaintiff, who succeeds in the suit Rule 11 deals with the case of a pauper plaintiff, who fails in the suit, and there is no separate provision for the case in which a pauper plaintiff has partly succeeded and partly failed, in my opinion, to such a case of partial success of a pauper plaintiff, the provision of S. 35 of the Code, will be attracted. There is nothing in order 33, of the Code, or elsewhere, to limit or otherwise affect the powers conferred upon the Court by S. 35 and, therefore, Rules 10 and 11, of Order 33, will not preclude the Court from exercising its discretion and power under S. 35 in any manner it thinks fit.

33. The discretion of the Court under S. 35, of the Code, can only be taken away by conditions and limitations which may be prescribed by law. No doubt, Rules 10 and 11, of Order 33, of the Code, limit the power of the Court to award costs under S. 35 to cases which fall within the ambit of Rules 10 and 11, of Order 33, but Rules 10 and 11, Order 33 do not apply to a case where the pauper plaintiff has partly succeeded and partly failed, and, therefore to such a case, S. 35, of the Code, will apply and under S. 35, the costs of the suit, which include court-fees payable by the plaintiff, in the suit, are in the unfettered discretion of the court, and it has full power to determine by whom such costs are to be paid. The words “costs of and incident to all suits” occurring in S. 35, of the Code are wide enough to include not only court-fees payable on the plaint, but also court-fees payable on application filed by a plaintiff, and as such, court-fees payable by a pauper plaintiff are covered by S. 35, of the Code.

34. On a consideration of S. 35 and Rules 10 and 11, of Order 33 of the Code, and, the authorities referred to earlier, the principle which in my opinion, can be extracted therefrom may be stated as under:

35. Rule 10 of Order 33 of the CPC, deals with the case of a pauper plaintiff who succeeds in the suit, and Rule 11 of Order 33, deals with the case of a pauper plaintiff who fails in the suit. Ride 10, Order 33, does not apply to a case when the pauper plaintiff partly succeeds and partly fails. No separate and specific provision has been made in either Order 33 itself, or anywhere else in the Code for the case of a pauper plaintiff succeeding in part and failing in part. In the absence of any such provision, the discretion rests entirely with the Court to direct which of the parties or if both of them proportionately, should pay the court-fees due to the Government and, the Court is not fettered by any hard and fast rule, but must only be guided by the equities of the case.

36. Such a discretion can be exercised by the Court in such a case under S. 35, of the Code. Under S. 35, the discretion rests entirely with the Court to direct which of the parties should pay the court-fee due to the Government. Therefore in a suit of a pauper plaintiff in which the plaintiff's claim is partly decreed and partly dismissed, or in other words, a modified decree has been passed in favour of the pauper plaintiff, the discretion rests with the Court in the matter of the payment of the court-fee as to which party or parties should pay the court-fee due to the Government. The equities of a particular case must be considered by the Court in making the order, and no hard and fast rule can be laid down with regard to the equities in such a case.

37. Applying the above principles to the present case, we find that here the court below has exercised its discretion, and, in view of the equities of the case before it directed that the entire court-fees should be payable by the defendants-appellants. The preset case is not a case like the one which was the subject matter of the appeal before their Lordships of the Allahabad High Court in AIR 1916 All 327 nor like the one which was before their Lordships of the Madras High Court in ILR 14 Mad 163, which was followed in the Allahabad High Court. The present case is just like the case which was before their Lordships of the Calcutta High Court in AIR 1928 Cal 196.

38. Although, I generally agree to the view taken by the Calcutta High Court, in the just mentioned case, which was referred to with approval subsequently by the same Court, in AIR 1938 Cal 776, that the Court has discretion in such a case, but I do not agree to the view taken by the Calcutta High Court that such a discretion can be exercised under rule 10, of Order 33. The principle, however that the Court has a discretion in such a case, which according to me can be exercised under S. 35 of the Code, in my opinion, therefore should apply to the present case.

39. In the instant case, we find that the plaintiff is a widow of the joint family, and, therefore she claimed maintenance and, according to the agreement between the parties, her maintenance was fixed by the defendants at Rs. 202/- per year by a document. The plaintiff's case was that the amount of maintenance was fixed in the year 1935; but on account of the high prices of the foodgrains prevailing in the year 1949, the amount of maintenance that was fixed in the year 1935 was quite inadequate for the reasons given by her in her plaint. She, therefore, prayed that at least a sum of Rs. 80/- per month be fixed for her future maintenance.

40. The amount of maintenance fixed in the agreement of 1935 was payable in two instalments, but the defendants appellants paid only one instalment of Rs. 101/- in Chait 1342 Fasli, but afterwards they did not pay a single shell, and, therefore, the plaintiff was compelled to go to her father's house to save herself from starvation, and, therefore, she was compelled later to bring the present suit, out of which the present appeal arises. Only for three years immediately preceding the suit, the arrears were claimed at the enhanced rate of Rs. 80/- per month due to increase in the living cost and the high prices of food-grains in these years, but for the other previous years, the arrears were claimed at the original rate of Rs. 202/- per year, as fixed by the document of 1935.

41. In these circumstances, it cannot be said that the plaintiff's claim was either mala fide, or exaggerated. On the other hand, on the fact and in the circumstances of the present case, her claim was just and proper, but the attitude of the defendants in not acting according to the agreement entered into voluntarily by them in 1935, and, in not paying the maintenance to the plaintiff so long was a clear indication of the defiant and mala fide attitude of the defendants. In these circumstances, the court below exercised its discretion, and, directed the court-fees payable by the plaintiff to be paid by the defendants, appellants.

42. In these circumstances, the real question is whether there is any justification for questioning or disturbing the discretion exercised by the original court when it directed the court-fees payable by the plaintiff to be paid by the defendants-appellants. The mere fact, that while directing the court-fee payable by the defendants appellants, the court below has not given reasons, is no ground for interference by this Court when the particular facts on which the discretion has been exercised are clearly tel be found from its judgment itself. The facts and circumstances on which that discretion was exercised are present.

43. On those facts and circumstances, I agree with the court below that the present case was one in which the court-fee payable by the plaintiff should be paid by the defendants-appellants only. It cannot be said that the court acted capriciously, or, in disregard of any legal principle in the exercise of its discretion. On the contrary, there are elements in the case which can fairly be regarded as ample warrant for the trial courts decision, and, for this it is enough to point to the attitude of the defendants as disclosed by the materials on the record in the present suit. The principles laid down in Rahmat-Un-Nissa Begam v. Price, 45 Ind App 61 : (AIR 1917 PC 116), support the view I have taken in the present suit.

44. For these reasons, when the court below has exercised its judicial discretion properly on legal principles and not arbitrarily, and, when I agree with the conclusions to which it has arrived on the facts of the particular case, I am not prepared to interfere with the discretion exercised by the original court in this matter. In the result, the appeal fails and is dismissed with costs.

D.H.Z

45. Appeal dismissed.