Holding

Rule 11 of Order XXXIII, CPC, obliges a pauper plaintiff to pay court fee in four distinct situations, and clauses (a) and (b) pertain only to the fourth situation (dismissal under those clauses), so a plaintiff who fails in the suit remains liable to pay the fee.

Summary

The appellant, an indigent plaintiff, filed a suit for damages against the State of Kerala which was dismissed as barred by limitation. The High Court held that, despite his indigent status, the plaintiff must pay the court fee because he failed in the suit, and dismissed his application for clarification. On appeal, the Supreme Court examined Order XXXIII Rule 11 of the Code of Civil Procedure, which mandates payment of court fee by a pauper plaintiff in four distinct situations. The Court held that clauses (a) and (b) of Rule 11 apply only to the fourth situation—dismissal under those specific clauses—and not to failure or dispauperment of the plaintiff. Consequently, the indigent plaintiff who failed in the suit is liable to pay the court fee, and the court cannot shift that liability to the defendant. The appeal was dismissed.

Issues considered

Whether clauses (a) and (b) of Order XXXIII Rule 11 are attracted when an indigent plaintiff fails in the suit.
Whether an indigent plaintiff who fails in the suit is liable to pay the court fee.
Whether the court may direct the defendant to pay the court fee when Rule 11 is attracted.
Interpretation of the disjunctive word "or" in Rule 11 of Order XXXIII.

Legislation cited

Code of Civil Procedure, 1908s. Order XXXIII Rule 10, s. Order XXXIII Rule 11, s. Section 151, s. Section 152

Subjects

indigent plaintiffcourt feeOrder XXXIII Rule 11Civil Procedurefailure in suitdismissalinterpretation of statutory languagedisjunctive "or"

Judgment

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A R.V. DEV @ R. VASUDEVAN NAIR "--...

"
CHIEF SECRET ARY, GOVT. OF KERALA AND ORS.

MAY 15, 2007

B (S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Code of Civil Procedure, 1908:
I
Or XXXI 11, r.11 r!w r. I 0-lnterpretation of-Suit in forma pauperis-
c Held, under r.11 plaintiff has to pay court fee in either of the four situations
namely, (i) when plaintifffailed in the suit, or (ii) when plaintiff is dispaupered
or (iii) when suit is withdrawn or (iv) when suit is dismissed in circumstances
specified in clauses {a) and (b)-As in three out of the four contingencies,
order has to be passed when suit comes to an end, it will be fair construction
to hold that clauses (a) and (b) refer to the fourth condition-Each situation
D
is distinct and different-Word "or" is distinctive and each case m~st be
given effect to independent of the other cases.

Words and Phrases:

"or" occurring in or.33, r.ll CPC-Connotation of
E
Appellant-plaintiff filed, as an indigent person, a suit for damages
against the State Government The suit was dismissed as barred by limitation.
The appeal filed informa pauperis was also dismissed by the High Court On
an application filed by the plaintiff-appellant for clarification of the appellate
F order, the High Court held that a person who was permitted to sue as an
indigent person was liable to pay the requisite court fee if he failed in the
suit. Aggrieved, the plaintiff filed the present appeal.

It was contended for the appellant that in the instant case in view of
clauses (a) and (b) of Rule 11 of Order XXXID, the provisions of Rule 11 were
G not attracted and, therefore, Rule 11 would have no application.

Dismissing the appeal, the Court
-
HELD: 1.1. Rule 11 of Order XXXIII, of the Code of Civil Procedure, "
H 886
RV DEV@R. VASUDEVAN NAIR'· CHIEF SECRETARY. GO\T Of KERALA [SB SlNHA.J ) 887
_} 1908 directing the pauper plaintiff to pay the court fee can be made in the A
four different situations, namely, (i) when the plaintiff failed in the suit; (ii)
where the plaintiff is dispaupered; (iii) where the suit is withdrawn; or (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 plaintiff is
dispaupered, the same has nothing to do with dismissal of the suit under the
circumstances specified in clauses (a) and (b). Clauses (a) and (b) mentioned B
in Rule 11 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 plaintiffis dispaupered. !Para 9 and It I (891-A, B, DI

1.2. For the purpose of construction of Rule 11 of Order XXXIII, it is
c
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 and that they cannot be held to be attracted
even in the former case. Each situation is distinct and different. The word D
"or" is disjunctive and thus must be given effect to independent of the other
cases. (Para 12] (891-E-F]

Ram Saran and Ors. v. State of Bihar and Ors., AIR (1959) Patna 384,
held inapplicable.
E
1.3. In a case where Rule 11 of Order XXXllI 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. (Para 14] [892-E)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2536 of2007.
F
From the Final Judgment and Order dated 11.07.2003 of the High Court
ofKerala at Emakulam in CMP. 1323/2003 in A.S. No. 156/1994.

A. Raghunath for the Appellant.

P.V. Dinesh, Sindhu T.P. and K.R. Sasiprabhu for the Respondents. G
The Judgment of the Court was delivered by
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S.B. SINHA, J. 1. Leave granted.

2. Interpretation of the provisions of Order XXXIII Rule 10 and Order H
888 SUPREME COURT REPORTS [2007) 6 S.C.R.

A XXXlll 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 11.7.20003 passed by the High Court of Kerala at Emakulam in CMP
No. 1323 of 2003 in A.S. No. 156 of 1994. 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
B suffered facial injury as a result of throwing of an acid bulb on his face. The
said suit was filed in terms of Order XXXlll 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.
c 3. He filed a suit for damages in the year i 988. 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:-

D (i) The suit was barred by limitation.
(ii) 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
E 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
F 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
G 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
H
RV DEV@R. VASUDEVAN NAIR'· CHIEF SECRETARY. GOVT OF KERALA [S.B SINHA, J.] 889

after trial or without trial since the ultimate decision or the result of A
the suit and not the manner or mode in which the decision is arrived
is envisaged under Rule 11 of Order XXXIII of the Civil Procedure
Code.

19. The counsel for the petitioner submitted that in view of the
scheme of Order 33 of the C.P.C. failure in a suit cannot be equated B
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 to evidence and since C
the suit is dismissed for insufficiency of evidence, it cannot be treated
as failure as contemplated in Rule 11 or Order 33 of the C.P.C. 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 D
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 E
by him in the suit was considered and settled by the Madras High
Court way back in the year 1891. In the decision reported in I.LR.
(1891) 14 Madras 163 (Chandrareka v. Secretary of State for India)
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 F
sum of Rs. I00/- and the I st defendant who contested the suit is liable
to pay court fee for the balance amount under Section 411 of the
C.P.C. of 1882."

It was opined:-
G
"31. Hence, the petitioner who is the plaintiff in the suit and 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.
H
890 SUPREME COURT REPORTS (2007] 6 S.C.R.

A 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 realize 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 realize the court fee payable on the plaint and
B memorandum of appeal by the petitioner in this case under due process
oflaw.

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
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decree under Sections 151and152 of the C.P.C. in fact seeks review
c of the judgment and decree passed by this Court in th·e above appeal
which is not permissible under law."

6. Appellant is, thus, before us.

7. Mr. A. Raghunath, learned counsel appearing on behalf of the
D appellant in support of this appeal submitted that Order XXXIII 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 informa pauperis may continue
{
to be an indigent person and the Scheme of the Act will be defeated if a
E direction is issued to recover the amount of court fee from him.

8. Order XXXlll of the Code of Civil Procedure deals with suits by
indigent persons whereas Order XL VI 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
F provision is 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 pem1itted to sue in that capacity,
if he fails in the suit of the trial or even without trial. Payment of court fee
as the scheme suggests is merely deferred. It is not altogether wiped off.
Order XXXIII Rule 10 of the Code of Civil Procedure provides for the
G 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
H other. The court fee is to be calculated on the amount claimed and not on the
RV DEV@R VASUDEVAN NAIR'· CHIEF SECRETARY, GOVT OF KERALA [SB SINHA, J J 891
·,
_,> amount decreed. For the said purpose, what is relevant is the final decision A
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.
•
(0 When the plaintiff failed in the suit.

(ii) Where the plaintiff is dispaupered.
B
(iii) Where the suit is withdrawn.

(iv) Where the suit is dismissed under the circumstances specified
~ in clause (a) or clause (b ).
\.

I0. When, therefor, the plaintiff fails in the suit or plaintiff is dispaupered, c
the same has nothing to do with dismissal of the suit under the circumstances
..... specified in clauses (a) and (b) .

11. Submission of Mr. A. Raghunath, learned counsel for the appellant
that clauses (a) and (b) would attract all the four situations contemplated by
Order XXXIII Rule 11 in our opinion is misconceived. Clauses (a) and (b) D
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.

12. For the purpose of construction of the aforementioned provisions,
E
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 F
referred to hereinbefore is distinct and different. The word "or" is disjunctive
and thus must be given effect to independent of the other cases.
~

13. Reliance placed on a decision of the learned Single Judge of the
...
Patna High Court in Ram Saran and Ors. v. State of Bihar and Ors., AIR
(1959) Patna 384, in our opinion does not advance the case of the appellant G
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:-

"8. 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
H
892 SUPREME COURT REPORTS (2007) 6 S.C.R.

A 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
B 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 '1-
./
court fee to be payable accordingly. But to a case like the present,
c 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
D 11, in terms, would apply."

14. 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 XXXIII
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. f
E
15. 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.

RP. Appeal dismissed.
F

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