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R.V Dev Alias R. Vasudevan Nair v. Chief Secretary, Govt. Of Kerala And Others
Factual and Procedural Background
The appellant, claiming to be an indigent person, filed a damages suit in 1988 against the State of Kerala after losing an eye in an alleged acid-attack said to be politically motivated. Proceeding in forma pauperis under Order 33 CPC, he asserted the State’s vicarious liability for his injuries. The Subordinate Judge, Cherthala dismissed the suit on 30-7-1991, holding (i) the claim was time-barred and (ii) the appellant failed to prove any duty of police protection.
An appeal, also pursued as an indigent person, was lodged in 1994 before the High Court of Kerala. On 13-9-2002 the High Court dismissed the appeal, affirming the finding of limitation.
The appellant then moved a miscellaneous application seeking “clarification” of the High Court’s direction, essentially contesting his liability to pay court fees. By order dated 11-7-2003 the High Court rejected the application, ruling that under Order 33 Rule 11 CPC an indigent plaintiff who ultimately fails is liable for the court fee payable on the plaint and memorandum of appeal.
The present Supreme Court appeal challenges that refusal, raising questions on the construction of Order 33 Rules 10 and 11 CPC (as amended in Kerala).
Legal Issues Presented
- Whether, upon dismissal of his suit and appeal, an indigent plaintiff continues to be liable to pay the court fee under Order 33 Rule 11 CPC notwithstanding his continuing indigence.
- Whether the contingencies set out in clauses (a) and (b) of Order 33 Rule 11 are exhaustive or apply only to specific categories of dismissal, leaving “failure in the suit” as an independent ground for directing payment of court fee.
Arguments of the Parties
Appellant's Arguments
- Order 33 Rule 11 is attracted only when the explicit pre-conditions in clauses (a) and (b) are met; a mere dismissal on merits does not constitute “failure” within the meaning of the Rule.
- Because the appellant remains indigent, directing recovery of court fees defeats the humanitarian purpose of allowing litigation in forma pauperis.
- The High Court’s use of the term “dismissed” in its appellate judgment did not amount to a finding that the appellant had “failed” in the suit for purposes of Rule 11.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chandrareka v. Secretary of State for India, ILR (1891) 14 Mad 163 | A successful pauper plaintiff is liable for court fee on the part of the claim decreed; the contesting defendant may be liable for the remainder. | Quoted by the High Court (and noted by the Supreme Court) to show historic consistency in requiring a pauper plaintiff to bear court fees corresponding to an adverse result. |
| Ram Saran Singh v. State of Bihar, AIR 1959 Pat 384 | Where a pauper plaintiff’s suit is dismissed, the court must order the plaintiff—not the defendant—to pay the court fee; discretion exists only when the plaintiff succeeds. | Cited by the Supreme Court to reinforce that on failure, liability for court fee rests solely on the pauper plaintiff, supporting dismissal of the appellant’s contention. |
Court's Reasoning and Analysis
The Supreme Court emphasised the structure of Order 33:
- Order 33 governs suits by indigent persons; payment of court fee is deferred, not extinguished.
- Rule 10 creates a first charge on the subject-matter of the suit for recovery of court fee; Rule 11 empowers the court to direct payment in four distinct situations:
- plaintiff fails in the suit,
- plaintiff is dispaupered,
- the suit is withdrawn,
- the suit is dismissed for reasons in clauses (a) or (b).
- The word “or” in Rule 11 is disjunctive; thus clauses (a) and (b) apply only to the fourth category (specific dismissals) and do not qualify the independent ground of “failure in the suit.”
- Consequently, once the appellant’s suit and appeal were dismissed on merits, he squarely “failed in the suit” and became liable for the entire court fee, regardless of continued indigence.
- The precedent in Ram Saran Singh affirms that when a pauper loses, the court lacks discretion to shift court-fee liability to the defendant.
- The appellant’s construction would nullify the statutory intent of deferred—rather than waived—court fees and was therefore rejected.
Holding and Implications
APPEAL DISMISSED. The Supreme Court found no infirmity in the High Court’s order that the appellant pay the court fees payable on his plaint and memorandum of appeal. No costs were awarded.
Implications: The decision reiterates that an indigent litigant who ultimately fails cannot avoid liability for court fees; Order 33 Rule 11 operates independently of the specific dismissal grounds in clauses (a) and (b). While affirming existing doctrine, the judgment does not create new precedent but clarifies the mandatory nature of court-fee recovery from unsuccessful pauper plaintiffs.
S.B Sinha, J.— Leave granted.
2. Interpretation of the provisions of Order 33 Rule 10 and Order 33 Rule 11 of the Code of Civil Procedure as amended in the State of Kerala is in question in this appeal which arises out of a judgment and order dated 11-7-2003 passed by the High Court of Kerala at Ernakulam in CMP No. 1323 of 2003 in AS No. 156 of 1994. The appellant herein filed a suit for damages against the State of Kerala inter alia on the premise that he had lost an eye having been a victim of violence of political vendetta as he had suffered facial injury as a result of throwing of an acid bulb on his face. The said suit was filed in terms of Order 33 of the Code of Civil Procedure as he claimed himself to be an indigent person. The persons accused of throwing acid bulb on the face of the appellant, however, stood acquitted by a judgment dated 18-2-1981.
3. He filed a suit for damages in the year 1988. The State denied and disputed its vicarious liability for payment of any damages suffered by the appellant. The suit was dismissed by the learned Subordinate Judge, Cherthala by a judgment and decree dated 30-7-1991 inter alia holding:
(i) The suit was barred by limitation.
(ii) The appellant had not established that the police was duty-bound to give protection to him.
4. An appeal was preferred thereagainst in the year 1994. The said appeal was also allowed to be filed by him as an indigent person. The said appeal was dismissed by the High Court by a judgment and decree dated 13-9-2002 inter alia holding that the suit was rightly held to be barred by limitation. It was furthermore directed:
“16. Hence we find that the above appeal is devoid of any merits. Therefore, the appeal is dismissed confirming the judgment and decree passed by the lower court.”
5. A miscellaneous application was filed by the appellant in the said suit purported to be for clarification of the said direction of the High Court contained in its judgment dated 13-9-2002. The High Court by reason of the impugned judgment refused to do so relying on some decisions relied on by the parties before it stating:
“18. It is clear from the above rulings of the various High Courts and this Court that a person who is permitted to sue as indigent person is liable to pay the court fee which would have been paid by him if he was not permitted to sue as indigent person, if he fails in the suit after trial or without trial since the ultimate decision or the result of the suit and not the manner or mode in which the decision is arrived is envisaged under Rule 11 of Order 33 of the Civil Procedure Code.
19. The counsel for the petitioner submitted that in view of the scheme of Order 33 CPC failure in a suit cannot be equated with the dismissal of the suit since dismissal has been dealt with separately under clauses (a) and (b) of Rule 11. According to him, failure should be a total failure of the entire claim in the suit and the suit should be devoid of any merit, any rhyme or reason without possessing a modicum of success. He argued that in this case the petitioner-appellant failed in the suit due to lack of evidence and since the suit is dismissed for insufficiency of evidence, it cannot be treated as failure as contemplated in Rule 11 of Order 33 CPC. He further argued that in the judgment passed by this Court in appeal, this Court merely dismissed the appeal and has not held that the plaintiff has failed in the suit. Therefore, according to him, Rule 11 of Order 33 is not attracted at all in this case.”
It was further held:
“23. The question whether the plaintiff suing as a pauper is liable to pay court fee when he succeeds in respect of part of the claim made by him in the suit was considered and settled by the Madras High Court way back in the year 1891. In Chandrareka v. Secy. of State for India ILR (1891) 14 Mad 163 a Division Bench of the Madras High Court held that the plaintiff in that partition suit who obtained a decree for Rs 100 being a moiety of the property claimed is liable to pay court fee with regard to the sum of Rs 100 and the 1st defendant who contested the suit is liable to pay court fee for the balance amount under Section 411 CPC of 1882.”
It was opined:
“31. Hence, the petitioner who is the plaintiff in the suit and the appellant in the appeal cannot escape from his liability to pay the court fee payable on the plaint and on the memorandum of appeal in this case as he failed in the suit and appeal by merely contending that he still continues to be an indigent person and a man of no means.
32. The questions whether the indigent plaintiff is liable to pay the court fee on his failure in the suit and whether the State could recover or realise the court fee payable by him under due process of law are separate and distinct matters to be considered independently. We are not called upon to pronounce on the issue as to whether the State will be able to realise the court fee payable on the plaint and memorandum of appeal by the petitioner in this case under due process of law.
33. It is also pertinent to note that the petitioner herein by filing the above petition purporting to be for correction of the judgment and decree under Sections 151 and 152 CPC in fact seeks review of the judgment and decree passed by this Court in the above appeal which is not permissible under law.”
6. The appellant is, thus, before us.
7. Mr A. Raghunath, learned counsel appearing on behalf of the appellant in support of this appeal submitted that Order 33 Rule 11 of the Code of Civil Procedure will have no application unless the conditions precedent laid down therefor are satisfied. It was urged that a person despite dismissal of a suit and an appeal filed by him in forma pauperis may continue to be an indigent person and the scheme of the Act will be defeated if a direction is issued to recover the amount of court fee from him.
8. Order 33 of the Code of Civil Procedure deals with suits by indigent persons whereas Order 46 thereof deals with appeals by indigent persons. When an application is filed by a person said to be indigent, certain factors for considering as to whether he is so within the meaning of the said provision are required to be taken into consideration therefor. A person who is permitted to sue as an indigent person is liable to pay the court fee which would have been paid by him if he was not permitted to sue in that capacity, if he fails in the suit at the trial or even without trial. Payment of court fee as the scheme suggests is merely deferred. It is not altogether wiped off. Order 33 Rule 10 of the Code of Civil Procedure provides for the consequences in regard to the calculation of the amount of court fees as a first charge on the subject-matter of the suit.
9. For calculation of court fee, there does not exist any distinction between a situation attracting Rule 10 on the one hand and Rule 11 on the other. The court fee is to be calculated on the amount claimed and not on the amount decreed. For the said purpose, what is relevant is the final decision taken by the court in this behalf. Rule 11 directing the pauper plaintiff to pay the court fee can be made in the four different situations:
(i) When the plaintiff failed in the suit.
(ii) Where the plaintiff is dispaupered.
(iii) Where the suit is withdrawn.
(iv) Where the suit is dismissed under the circumstances specified in clause (a) or clause (b).
When, therefore, the plaintiff fails in the suit or the plaintiff is dispaupered, the same has nothing to do with dismissal of the suit under the circumstances specified in clauses (a) and (b).
10. Submission of Mr A. Raghunath, learned counsel for the appellant that clauses (a) and (b) would attract all the four situations contemplated by Order 33 Rule 11 in our opinion is misconceived. Clauses (a) and (b) would be attracted only when the suit is inter alia dismissed by reason of the contingencies contained in clauses (a) and (b). Clauses (a) and (b) will have no bearing and/or relevance, when a suit is dismissed on merit or when the plaintiff is dispaupered.
11. For the purpose of construction of the aforementioned provisions, it is necessary to give effect to all the conditions mentioned therein. As in three out of the four contingencies in the Rule, the order has to be passed when the suit comes to an end, it will be a fair construction to hold that clauses (a) and (b) refer to the fourth condition. We fail to see as to how the same can be held to be attracted even in the former case. Each situation as referred to hereinbefore is distinct and different. The word “or” is disjunctive and thus must be given effect to independent of the other cases.
12. Reliance placed on a decision of the learned Single Judge of the Patna High Court in Ram Saran Singh v. State of Bihar AIR 1959 Pat 384 in our opinion does not advance the case of the appellant inasmuch as therein the Court was concerned with a situation where a question arose as to what would happen if the suit is decreed in part. It was held: (AIR p. 386, para 8)
“8. From Rules 10 and 11 of Order 33, it follows, therefore that if the plaintiff's suit is dismissed, the court has no discretion or option in the matter, 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.
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 plaintiff's 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.”
13. The decision relied on by the learned counsel therefore is itself an authority for the proposition that in a case where Rule 11 of Order 33 is attracted, the court cannot direct the defendant to pay the court fee and it must be paid by the plaintiff or the co-plaintiff.
14. We, therefore, are of the opinion that there is no infirmity in the impugned judgment. The appeal is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
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